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Thomas C. Horne
Attorney General

Robert L. Ellman (AZ Bar No. 014410)
Solicitor General

Kathleen P. Sweeney (AZ Bar No. 011118)
Todd M. Allison (AZ Bar No. 026936)
Assistant Attorneys General
1275 W. Washington
Phoenix, Arizona 85007-2997
Telephone: (602) 542-3333
Fax: (602) 542-8308
kathleen.sweeney@azag.gov
todd.allison@azag.gov
Byron J . Babione (AZ Bar No. 024320)
J ames A. Campbell (AZ Bar No. 026737)
Kenneth J . Connelly (AZ Bar No. 025420)
J . Caleb Dalton (AZ Bar No. 030539)
Special Assistant Attorneys General
Alliance Defending Freedom
151000 N. 90th Street
Scottsdale, Arizona 85260
Telephone: (480) 444-0020
Fax: (480) 444-0028
bbabione@alliancedefendingfreedom.org
jcampbell@alliancedefendingfreedom.org
kconnelly@alliancedefendingfreedom.org
cdalton@alliancedefendingfreedom.org
Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

J oseph Connolly and Terrel L. Pochert;
Suzanne Cummins and Holly N.
Mitchell; Clark Rowley and David
Chaney; R. Mason Hite IV and
Christopher L. Devine; Meagan and
Natalie Metz; Renee Kaminski and
Robin Reece; J effrey Ferst and Peter
Bramley,

Plaintiffs,

v.

Chad Roche, in His Official Capacity as
Clerk of the Superior Court of Pinal
County, Arizona; Michael K. J eanes, in
His Official Capacity as Clerk of the
Superior Court of Maricopa County,
Arizona; and Deborah Young, in Her
Official Capacity as Clerk of the
Superior Court of Coconino County,
Arizona,

Defendants.


Case No: 2:14-cv-00024-J WS



DEFENDANTS REPLY IN SUPPORT
OF THEIR RULE 12(C) MOTION FOR
JUDGMENT ON THE PLEADINGS AS
TO PLAINTIFFS NOMINAL-
DAMAGES CLAIM




Case 2:14-cv-00024-JWS Document 76 Filed 07/11/14 Page 1 of 10

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Pursuant to Federal Rule of Civil Procedure 12(c), Defendants Chad Roche, Pinal
County Superior Court Clerk; Michael K. J eanes, Maricopa County Superior Court
Clerk; and Deborah Young, Coconino County Superior Court Clerk (collectively,
Defendants) hereby reply to Plaintiffs Response to their Motion for J udgment on the
Pleadings as to Plaintiffs Nominal Damages Claim.
I. This Court Should Hold that the Office of Superior Court Clerk Is an Arm of
the State for Eleventh Amendment Immunity Purposes Because Four of the
Five Factors in the Ninth Circuits Balancing Test Weigh in Favor of that
Determination.
Plaintiffs contend that the Office of Superior Court Clerk (Office) is not an arm
of the State entitled to Eleventh Amendment immunity from their nominal-damages
claim because a judgment against the Office would not be satisfied from the state
treasury. (Pls. Resp. at 1-5 [Doc. 61].) In support of that proposition, they cite Greater
Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir. 1987). (Pls.
Resp. at 2-3.) Zolin, however, was decided before Mitchell v. Los Angeles Community
College District, 861 F.2d 198 (9th Cir. 1988), in which the Ninth Circuit adopted the
five-factor balancing test that it applies to determine whether an entity such as the Office
is an arm of the State for Eleventh Amendment immunity purposes. Id. at 201-02. In
formulating this test, the Mitchell court cited Mount Healthy City School District Board
of Education v. Doyle, 429 U.S. 274, 280 (1977), in which the Supreme Court examined
how state law treated an entity to determine whether the entity was an arm of the State
for Eleventh Amendment immunity purposes.
Under the Mitchell test, whether a judgment against an entity will be satisfied out
of the state treasury is only the first of five factors that a court considers in determining
how state law treats the entity. Savage v. Glendale Union High Sch., 343 F.3d 1036,
1040-41 (9th Cir. 2003). While the Ninth Circuit has said that the first factor is the most
important one, id. at 1041, it has not abandoned the balancing test, which necessarily
requires that the other four factors also be considered and weighed, see Beentjes v.
Placer Cnty. Air Pollution Control Dist., 397 F.3d 775, 778-86 (9th Cir. 2005) (applying
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the five-factor test); Lindsey v. Matayoshi, 950 F. Supp. 2d 1159, 1165-68 (D. Haw.
2013) (same).
As Defendants explained in their Motion, the second Mitchell factorwhether the
entity performs central state governmental functionsweighs heavily in favor of
determining that the Office is an arm of the State because (1) both Arizonas Supreme
Court and Legislature consider the Office to be part of Arizonas integrated judicial
system, (2) Arizonas Constitution and statutes vest ultimate authority over the Clerks in
the Legislature and the judiciary rather than in the counties, and (3) the Clerks address
statewide rather than local matters as part of Arizonas statewide judicial system. (Defs.
Mot. at 3-6 [Doc. 48].) This factor strongly supports a determination that the Office is
an arm of the State because it demonstrates that the Office is so closely tied to the State
as to be the direct means by which the State acts. Holz v. Nenana City Pub. Sch. Dist.,
347 F.3d 1176, 1180, 1186 n.12 (9th Cir. 2003). Because the second factor weighs so
heavily in favor of a determination that the Office is an arm of the State and four of the
five factors support that determination (see Defs. Mot. at 2-7), this Court should hold
that the Office is an arm of the State and that Defendant Clerks are therefore entitled to
Eleventh Amendment immunity from Plaintiffs nominal-damages claim.
1

II. Plaintiffs Nominal-Damages Claim Does Not Fall Within the Ex Parte Young
Exception to Eleventh Amendment Immunity Because It Seeks Retrospective
Relief Based on Alleged Past Deprivations of Constitutional Rights Rather
than Prospective Relief Based on Alleged Ongoing Violations of Federal Law.

Plaintiffs assert that the Court should deny Defendants Motion even if it
determines that the Office is an arm of the State and that Defendant Clerks are therefore
entitled to Eleventh Amendment immunity because their nominal-damages claim falls

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Plaintiffs note that Defendants did not argue in their Motion that they were entitled to
qualified immunity. (Pls. Resp. at 1 n.1.) Defendants did not do so because only
governmental defendants sued in their personal capacities can assert a qualified-
immunity defense, Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 965 (9th Cir.
2010), and Plaintiffs sued Defendants in their official capacities only (see Pls. Am.
Compl. at 1 [Doc. 15]).
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within the Ex parte Young exception to Eleventh Amendment immunity. (Pls. Resp. at
5-10.) Plaintiffs are mistaken.
Unless a State consents to suit or waives its Eleventh Amendment immunity or
Congress abrogates its Eleventh Amendment immunity, Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984), the Eleventh Amendment prohibits United States
citizens from suing a State or an arm of a State in federal court, Puerto Rico Aqueduct &
Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993). This is true regardless of
the relief sought. Pennhurst, 465 U.S. at 100. The Eleventh Amendment also bars
federal-court citizen suits against state officials in their official capacities, which are
treated as suits against the States themselves, regardless of the relief sought. See id. at
101-02. In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court created an
exception to this general rule concerning official-capacity suits. Under the exception, the
Eleventh Amendment does not bar federal-court citizen suits against state officials that
directly serve to bring present violations of federal law to an end. Papasan v. Allain, 478
U.S. 265, 278 (1986). Such suits are not treated as suits against a State. Kentucky v.
Graham, 473 U.S. 159, 167 n.14 (1985). The Supreme Court has described the
exception as being necessary to prevent state officials from using the Eleventh
Amendment to avoid complying with federal law. Puerto Rico Aqueduct, 506 U.S. at
146. But it has also recognized the importance of preserving the States constitutional
immunity to an important degree while promot[ing] the supremacy of federal law
and has limited the exception to achieve this balance. See Pennhurst, 465 U.S. at 105-
06.
The exception permits prospective declaratory and injunctive relief in official-
capacity suits. Nevada v. Hall, 440 U.S. 410, 420 n.19 (1979). It does not, however,
permit retrospective relief because that type of relief would effectively eliminate the
States constitutional immunity. Pennhurst, 465 U.S. at 105; see also Jackson v.
Hayakawa, 682 F.2d 1344, 1351 (9th Cir. 1982) (noting that in Edelman v. Jordan, 415
U.S. 651 (1974), the Supreme Court had clarified the distinction between prospective
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relief, which the Ex parte Young exception permits in official-capacity suits, and
retrospective monetary relief, which does not fall within the exception). Thus,
judgments declaring that state officials have violated federal law in the past are not
available in official-capacity suits. Puerto Rico Aqueduct, 506 U.S. at 146; Green v.
Mansour, 474 U.S. 64, 71-73 (1985). Injunctive relief is not available either when no
continuing violation or threatened future violation of federal law exists. Green, 474 U.S.
at 71, 73.
Damages awards are not available in official-capacity suits either because they
serve to compensate parties for injuries that they have sustained in the past from the
actions of state officials that violated federal law. Papasan, 478 U.S. at 278. This is true
whether the awards are expressly denominated as damages or are tantamount to an
award of damages for a past violation of federal law, even though styled as something
else. Id.; see also Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) (stating that
retrospective relief, for instance, money damages or [their] equivalent is not available
in official-capacity suits); Verizon Md., Inc. v. Pub. Serv. Commn, 535 U.S. 635, 646
(2002) (stating that the plaintiffs declaratory-relief claim fell within the Ex parte Young
exception because it did not impose on the State a monetary loss resulting from a past
breach of a legal duty on the part of the defendant state officials) (internal quotation
marks omitted); Green, 474 U.S. at 73 (stating that awards of money damages or
restitution based on a state officials past actions are not available in official-capacity
suits). The Supreme Court has explained that while [r]emedies designed to end a
continuing violation of federal law are necessary to vindicate the federal interest in
assuring the supremacy of that law[,] . . . compensatory or deterrence interests are
insufficient to overcome the dictates of the Eleventh Amendment. Green, 474 U.S. at
68.
Although Plaintiffs contend that nominal-damages awards differ from
compensatory- and punitive-damages awards (Pls. Resp. at 6, 8-9), they have not cited
(and cannot cite) any authority that distinguishes nominal-damage awards from any other
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type of retrospective monetary-damage award for purposes of official-capacity suits.
Nominal damages are awarded in actions like the present one when the defendant has
deprived the plaintiff of a constitutional right in violation of federal law, but the plaintiff
cannot establish that the deprivation resulted in any actual, compensable injury. Farrar
v. Hobby, 506 U.S. 103, 115 (1992); Carey v. Piphus, 435 U.S. 247, 266-67 (1978). By
making the deprivation of constitutional rights actionable for nominal damages without
proof of actual injury, the law recognizes the importance to organized society that those
rights be scrupulously observed. Carey, 435 U.S. at 266.
A nominal-damage award for the deprivation of a constitutional right is therefore
retrospective in nature because it is based on the defendants past actions that deprived
the plaintiff of the right. See Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988) ([T]he
[E]leventh [A]mendment bars actions against state officers sued in their official
capacities for past alleged misconduct involving a complainants federally protected
rights, where the nature of the relief sought is retroactive, i.e., money damages, rather
than prospective, e.g., an injunction.). Plaintiffs note that a nominal-damages claim
may prevent an action like the present one from becoming moot. (See Pls. Resp. at 7.)
A nominal-damage claim may do so precisely because unlike claims seeking prospective
declaratory and injunctive relief to ensure that a defendants future actions comply with
federal law, a nominal-damages claim is based on a defendants past actions. See, e.g.,
Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1257-58 (10th Cir.
2004) (stating in a 1983 action challenging the constitutionality of a citys repealed
statute that although the conduct at issue is long past and will not be repeated, the
Ordinance under challenge has been amended to correct its alleged constitutional flaw,
and Plaintiff concedes that it suffered no compensable injury, the plaintiffs nominal-
damages claim required the court to determine on the merits whether Defendants past
conduct and no-longer-operative Ordinance comported with the First Amendment).
Because nominal-damages awards based on deprivations of constitutional rights
are not aimed at prospectively ending a present violation of federal law as the Ex parte
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Young exception requires, they are not available in official-capacity suits. See Green,
474 U.S. at 68 (stating that the Supreme Court has refused to extend the Ex parte Young
exception to retrospective-relief claims); Fox v. Bd. of Trs., 42 F.3d 135, 141 (2d Cir.
1994) (refusing to read a nominal-damages claim into the plaintiffs complaint because
the defendants, who had been sued in their official capacities, could successfully have
defended against the claim by raising an Eleventh Amendment immunity defense);
Thonen v. Jenkins, 517 F.2d 3 at 5-6 (4th Cir. 1975) (vacating and remanding the district
courts nominal-damages award for a determination whether the defendants could
establish a qualified immunity defense and requiring the district court to order the
defendants to pay the nominal damages only in their individual capacities because
ordering them to pay the damages in their official capacities would violate the Eleventh
Amendment). Plaintiffs attempt (see Pls. Resp. at 5-7, 10) to analogize nominal-
damages claims based on deprivations of constitutional rights, which can never be
prospective in nature, to declaratory-relief claims, which can be prospective in nature,
therefore fails. If the Court finds that the Office is an arm of the State and that
Defendant Clerks are therefore entitled to Eleventh Amendment immunity, it should hold
that Plaintiffs nominal-damages claim against the Clerks does not fall within the Ex
parte Young exception to Eleventh Amendment immunity. See Porter v. Jones, 319 F.3d
483, 491 (9th Cir. 2003) (stating that retrospective-relief claims such as damages are not
cognizable under the Ex parte Young exception).
III. Plaintiffs Nominal-Damages Claim Is Not Cognizable in a 42 U.S.C. 1983
Action Because State Officials Like Defendant Clerks Who Are Sued for
Damages in Their Official Capacities Are Not Persons Within the Meaning
of 1983.
There is another reason why the Court cannot award nominal damages against
Defendant Clerks if it finds that the Office is an arm of the State and that Defendant
Clerks are entitled to Eleventh Amendment immunity. Plaintiffs cite Will v. Michigan
Department of State Police, 491 U.S. 58 (1989), for the proposition that 42 U.S.C.
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1983 does not apply to a State because a State is not a person within that statutes
meaning. (Pls. Resp. at 8.) That was not Wills full holding.
The Supreme Court held in Will (1) that neither a State nor a state official sued for
damages in his or her official capacity is a person subject to suit in a 1983 action and
(2) that a state official sued for prospective relief in his or her official capacity is a
person subject to suit in a 1983 action because suits seeking prospective relief are
not treated as actions against the State. 491 U.S. at 68-71 & n.10. Plaintiffs nominal-
damages claim against Defendant Clerks, whom Plaintiffs have sued only in their official
capacities, therefore is not cognizable in Plaintiffs 1983 action (Pls. Am. Compl. at 1
& 24, 122, 131, 140, 144 [Doc. 15]). See Arizonans for Official English v. Arizona,
520 U.S. 43, 69 n.24 (1997) (citing Will and stating that [s]tate officers in their official
capacities, like States themselves, are not amenable to suits for damages under 1983);
Braunstein v. Ariz. Dept of Transp., 683 F.3d 1177, 1188 (9th Cir. 2012) (stating that it
is well-established that sovereign immunity precludes 1983 damages claims against
state actors sued in their official capacities); Bank of Lake Tahoe v. Bank of Am., 318
F.3d 914, 918 (9th Cir. 2003) (stating that the plaintiffs constitutional claims for
monetary relief failed under the well-established principle that state officials sued in
their official capacities are not considered persons within the meaning of 1983);
Fox, 42 F.3d at 141 (refusing to read a nominal-damages claim into the plaintiffs
complaint because the defendants, who had been sued in their official capacities, could
successfully have defended against the claim because they were not persons within the
meaning of 1983 with respect to such a claim); Fla. Paraplegic Assn v. Martinez, 734
F. Supp. 997, 1001-02 (S.D. Fla. 1990) (noting that the plaintiff was raising only a
nominal-damages claim and granting summary judgment for the defendants in their
official capacities because they were not persons within the meaning of 1983 with
respect to such a claim). If the Court finds that the Office is an arm of the State and that
Defendant Clerks are therefore entitled to Eleventh Amendment immunity, it should
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grant Defendants Motion because in that event, Defendant Clerks will not be persons
who can be sued for nominal damages in Plaintiffs official-capacity 1983 action.

CONCLUSION
The Eleventh Amendment bars Plaintiffs nominal-damages claim against
Defendants, whom Plaintiffs have sued only in their official capacities as Superior Court
Clerks. Defendants therefore respectfully request that this Court grant Defendants
motion for judgment on the pleadings as to Plaintiffs nominal-damages claim.

Dated: J uly 11, 2014

Thomas C. Horne
Attorney General

Robert L. Ellman
Solicitor General


s/ Kathleen P. Sweeney
Kathleen P. Sweeney
Todd M. Allison
Assistant Attorneys General

Byron J . Babione
J ames A. Campbell
Kenneth J . Connelly
J . Caleb Dalton
Special Assistant Attorneys General

Attorneys for Defendants





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CERTIFICATE OF SERVICE

I hereby certify that I electronically transmitted the attached document to the
Clerks Office using the CM/ECF System for filing and transmittal of a Notice of
Electronic Filing to the following, if CM/ECF registrants, and mailed a copy of same if
non-registrants, this 11th day of J uly, 2014.

Shawn K. Aiken, Esq.
Heather A. Macre, Esq.
William H. Knight, Esq.
Stephanie McCoy Loquvam
Aiken Schenk Hawkins & Ricciardi
2390 E. Camelback Rd., Ste. 400
Phoenix, AZ 85016
ska@ashrlaw.com
ham@ashrlaw.com
whk@ashrlaw.com
sml@ashrlaw.com

Ellen K. Aiken, Esq.
Sacks Tierney
4250 N. Drinkwater Blvd., 4
th
Floor
Scottsdale, AZ 85251-3647
Ellen.Aiken@SacksTierney.com

Herbert L. Ely
Ely Bettini Ulman & Rosenblatt
3200 N. Central Ave., Ste. 1930
Phoenix, AZ 85012
eburlaw@eburlaw.com

Mikkel Steen J ordahl
Mikkel (Mik) J ordahl PC
114 N. San Francisco, Ste. 207
Flagstaff, AZ 86001
mikkeljordahl@yahoo.com

Ryan J . Stevens
Griffen & Stevens PLLC
609 N. Humphreys St.
Flagstaff, AZ 86001
stevens@flagstaff-lawyer.com

Mark D. Dillon
Dillon Law Office
P.O. Box 97517
Phoenix, AZ 85060
Dillonlaw97517@gmail.com


s/ Maureen Riordan

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