FILED

Gary Harrison
CLERK, SUPERIOR COURT
10/24/2019 12:15:31 AM
BY: ALAN WALKER /S/
1 Dennis P. McLaughlin (#009197) (PAN 37748) DEPUTY

Principal Assistant City Attorney for Case No. C20195033

2 HON. BRENDEN J GRIFFIN
Jennifer Stash (#029848) (PAN 124942)
3 Senior Assistant City Attorney for
MICHAEL G. RANKIN
4 City Attorney
P.O. Box 27210
5 Tucson, Arizona 85726-7210
6 Dennis.McLaughlin@tucsonaz.gov
Jennifer.Stash@tucsonaz.gov
7 Telephone: (520) 791-4221
Fax: (520) 623-9803
8

9
10
4801 East Broadway Boulevard, Suite 311
11 Tucson, Arizona 85711
T: 520.214.2000
12 F: 520.214.2001
Ali J. Farhang (#019456) (PAN 65507)
13 afarhang@farhangmedcoff.com
14 Robert A. Bernheim (#024664) (PAN 66050)
rbernheim@farhangmedcoff.com
15 Attorneys for Defendants City of Tucson, et al.
16
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
17
IN AND FOR THE COUNTY OF PIMA
18

19
People’s Defense Initiative, Inc.; et al., Case No. C20195033
20
Plaintiffs, DEFENDANTS’ MOTION TO
21 DISMISS UNDER RULE 12(b)(6)
v. OR, IN THE ALTERNATIVE,
22
Mike Rankin, et al., MOTION FOR SUMMARY
JUDGMENT AND REQUEST FOR
23
Defendants. SANCTIONS
24 Assigned to the Honorable Brenden J.
Griffin
25

26

27 This action, in timing and substance, is nothing more than a transparently contrived
28 and staged attempt to mislead the voters of the City of Tucson to vote in favor of Proposition
00621403.3
 1 205—commonly referred to as the Sanctuary City Initiative. Plaintiffs’ deliberately and
2 dilatorily filed their complaint the very day before ballots were to be distributed to voters
3 of the City of Tucson—nearly nine months after learning of the January 16, 2019
4 Memorandum, which is the subject of the lion’s share of their allegations. More shockingly,
5 deposition testimony of Zaira Livier, as well as a secret recording she took on January 11,
6 2019, during what was intended as a good faith meeting by the City Attorney to discuss his
7 concerns of the overwhelmingly deleterious effects Proposition 205 would have on the
8 safety and welfare of Tucson residents, clearly evidence that the vast majority (if not all) of
9 the allegations asserted by Plaintiffs are knowingly false or otherwise misleading. Plaintiffs
10 object to the Memorandum, and have initiated this litigation, because any neutral or
11 impartial analysis of the Proposition, such as those disseminated by Defendants, necessarily
12 reveals the extraordinarily negative impacts it would cause for Tucson and its residents.
13 MEMORANDUM OF POINTS AND AUTHORITIES
14 I. The Subject Memoranda are Impartial and do not Violate § 9-500.14, and all
Other Conduct is Based on the Memoranda.
15

16 Defendants did not violate any substantive limitation of § 9-500.14. The January 16,
17 2019 Memorandum (“January 16 Memo”) and October 8, 2019 Memorandum (“October 8
18 Memo”) are truthful, objective, and impartial. Plaintiffs are just unhappy because the
19 Memoranda do not fall in line with Plaintiffs’ own, admittedly biased support for
20 Proposition 205. Because all of the other complained-of conduct arises out of the use and/or
21 dissemination of these two Memoranda, this Court can limit its analysis to the Memoranda.
22 See Complaint at ¶¶ 4, 61-62, 68-70, 73-75, and 83.
23 Section 9-500.14(A) commands that the City “shall not spend or use its resources
24 . . . for the purpose of influencing the outcomes of elections.” The statute defines
25 “influencing the outcomes of elections” to include “supporting or opposing a ballot
26 measure, question or proposition . . . in any manner that is not impartial or neutral.” The
27 applicable test is objective and requires proof of “(1) whether the use of public resources
28 has the purpose of supporting or opposing the ballot measure, and (2) whether the use of
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 1 public resources involves dissemination of information in a manner that is not impartial or
2 neutral.” Ariz. Att’y Gen. Op. I15-002, at 7 (2015). If a reasonable person could not find
3 that the use of public resources supports or opposes a ballot measure, it automatically means
4 that the subject use is “impartial or neutral.” Id. If reasonable minds could differ about
5 whether the use supports or opposes a measure, the Court must engage in a closer
6 examination to determine if the use is not impartial or neutral, which may include an
7 evaluation of whether an analysis avoids argument or advocacy; is free of misleading
8 tendencies via amplification, omission, or fallacy; and is free of partisan coloring. Id.
9 The Memoranda are objectively neutral and provide a legally and factual accurate
10 summary of Proposition 205’s direct effects and the possibility and likelihood of its indirect
11 effects.1 Plaintiffs admit that January 16 Memo does not expressly request voters take any
12 particular position on Proposition 205. SOF ¶ 3. They admit that most of its analysis is
13 factually and legally correct. SOF ¶ 4. They only dispute the substantive analysis of
14 Sections 17-83(h)-(k), 17-85, and 17-88, concerning the following issues: (1) the factors
15 that may be considered to form reasonable suspicion for a stop or other detention,
16 (2) whether it is practicable to investigate a detainee’s immigration status during a traffic
17 stop, (3) whether Proposition 205 extends special protection to detainees suspected of
18 various sex crimes and domestic violence offenses, (4) whether federal agencies would still
19 work with the Tucson Police Deparcollatment subject to prospective memoranda of
20 understanding (“MOUs”) limiting their powers, (5) whether the city courts can have
21 jurisdiction over private civil actions, (6) whether Proposition 205 creates the risk of losing
22 state-shared revenues, and (7) whether Proposition 205 creates the risk of losing federal
23 grant funds. SOF ¶ 5.
24 A. Section 17-83(h)-(i): Effect on Developing Reasonable Suspicion to
Investigate Immigration Status.
25

26 The January 16 Memo states that Section 17-83(h)-(i) imposes limits on the factors
27
1
PDI Attorney Billy Peard acknowledged receipt of the January 16 Memo and stated,
28 “Thanks, Mike. I appreciate the thorough treatment of it.” SOF ¶ 2.
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 1 officers can otherwise consider to develop reasonable suspicion that a person is unlawfully
2 present in the United States, as expressed in current Fourth Amendment case law. SOF ¶ 6.
3 Proposition 205 requires “at least two distinct factors” to support reasonable suspicion of
4 unlawful presence and prohibits the consideration of nine specific factors. SOF ¶ 7. Current
5 law regarding reasonable suspicion does not require any specific number of supporting
6 factors or prohibit consideration of several of the factors that would be prohibited. See, e.g.,
7 United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975) (heavily loaded vehicle or one
8 with an extraordinary number of passengers); United States v. Jones, 2019 WL 3020948, at
9 *1 (9th Cir. July 10, 2019) (non-local address); United States v. Manzo-Jurado, 457 F.3d
10 928, 936-37 (9th Cir. 2006) (individual’s inability to speak English may support reasonable
11 suspicion that the person is in the country illegally); United States v. Garcia-Baron, 116
12 F.3d 1305, 1307 (9th Cir. 1997) (proximity to border can be considered); United States v.
13 Garcia, 732 F.2d 1221, 1223 (5th Cir. 1984) (stop justified on considerations of proximity
14 to the border, usual traffic patterns, type and appearance of vehicle, heavily loaded nature
15 of vehicle, and number of passengers). Thus, Mr. Rankin’s analysis is objectively correct.2
16 B. Section 17-83(j): Effect on Determining if Inquiring about Immigration
Status during a Traffic Stop is “Practicable.”
17

18 The January 16 Memo states that Section 17-83(j)’s establishment of a “policy” that
19 it is “not practicable” to determine a detainee’s immigration status during a traffic stop
20 along a roadway conflicts with SB1070/A.R.S. § 11-1051(b) because whether the
21 investigation of immigration status is “practicable” is a question of fact and not a matter of
22 policy. SOF ¶ 9. This is common sense. SB1070’s use of the word “practicable” is
23 presumably based on the common understanding of that word. The common understanding
24 of whether it is “practicable” to conduct an investigation depends the factual circumstances
25 of the stop, including the example considerations listed in the January 16 Memo, and not
26

27
2
PDI attorney Peard acknowledged his purpose in drafting this Section was to make it
28 impossible for officers’ to develop reasonable suspicion of unlawful presence. SOF ¶ 8.
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 1 on public policy. The January 16 Memo is objectively correct on this point.3
2 C. Section 17-83(k): Effect on Immigration Inquiries During Certain
Investigations of Sex Crimes and Domestic Violence Offenses.
3
The January 16 Memo states that Section 17-83(k) “protects detainees” of certain
4
sex crimes and domestic violence offenses by exempting those detainees from an inquiry
5
about their immigration status by declaring such inquiries would always hinder the
6
investigation. SOF ¶ 11. SB1070 allows an exception for officers to not inquire about
7
immigration status when otherwise legally required if doing so would hinder the
8
investigation. A.R.S. § 11-1051(b). On its face, Section 17-83(k) would exempt all
9
detainees accused of the specified crimes (child molestation, sexual assault, aggravated
10
domestic violence, and more) from immigration status inquiries that are otherwise
11
mandated by Arizona law. SOF ¶ 12. This obviously benefits those detainees. Plaintiffs
12
appear to be upset because they now claim that this language was intended to protect victims
13
and encourage their cooperation, even though victims are never mentioned in Section 17-
14
83(k).4 SOF ¶ 14. Regardless of Plaintiffs’ newly described intent in writing Proposition
15
205, Mr. Rankin’s objective analysis—which was informed by PDI’s own statements to
16
him on January 11—was factually correct that this Section protects detainees, and in
17
particular those detained for the specified crimes.
18
D. Section 17-85: Effect on Collaborations with Federal Agencies.
19
With respect to Section 17-85, entitled “Collaboration with federal law
20
enforcement,” the January 16 Memo concludes that Proposition 205 requires the Tucson
21
Police Department (“TPD”) to secure MOUs before participating in joint law enforcement
22
taskforces, operations “or similar endeavors” with federal agencies; that the required MOU
23

24 3
Livier and PDI attorney Peard admitted on January 11, 2019 that these kinds of
immigration inquiries during traffic stops would in fact be “practicable” in various
25 situations, including when the stop is made by a “Baker” (i.e., 2 officer) unit. SOF ¶ 10.
4
Plaintiffs’ newly contrived description of the intent of this Section is entirely different
26 than the description Livier and PDI attorney Peard offered during the January 11 meeting
with Mr. Rankin. At that time, they stated that this Section was only intended to apply to
27 domestic violence cases, where the “detainee” may also be a victim; and they admitted that
in adding in the various sex crimes, “maybe we went too far” and “we may have gone
28 overbroad.” SOF ¶ 13.
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 1 language restricts the arrest authority of the federal agencies’ officers within Tucson city
2 limits; and that Mr. Rankin believes “it is extremely unlikely that any of these federal
3 agencies would consent to such an agreement,” the result being an end to all joint law
4 enforcement collaboration with any federal agency. SOF ¶ 15.
5 Section 17-85(c) prohibits any TPD officer from participating “in a joint law
6 enforcement task force, joint enforcement operation, or similar endeavor” with a “federal
7 officer” absent an MOU with that officer’s agency. The required MOUs must include
8 agreements from each respective federal agency to limit their officers’ authority to conduct
9 warrantless arrests with the City of Tucson except as permitted for private persons under
10 Arizona’s citizen’s arrest statute; and to preclude them from exercising their arrest authority
11 as peace officers under other specific provisions of Arizona law (A.R.S. §§ 13-3871 and -
12 3875). In other words, the federal agency (e.g., the FBI, DEA, ATF, etc.) would have to
13 agree that when its officers are engaged in law enforcement activity in Tucson, they would
14 only have the same arrest authority as a private person. SOF ¶ 16. Nothing in Section 17-
15 85(c) permits an exception for federal officers making arrests under federal criminal laws.
16 SOF ¶ 17.
17 The description of Proposition 205’s requirements in the January 16 Memo and other
18 communications by Defendants is correct as a matter of law. To the extent Mr. Rankin
19 opines about the likelihood of federal agencies’ agreement, this is an appropriate analysis
20 of the prospective effects of Proposition 205. The opinion is based on his office’s collective
21 experience in negotiating MOUs and IGAs with federal governmental agencies, SOF ¶ 18,
22 and the likelihood—or lack of it—that any law enforcement agency, federal or otherwise,
23 would relinquish by contract the lawful arrest authority of its officers when they happen to
24 be working in a particular city.5
25 Defendants have requested Plaintiffs for months to identify any other situations
26
5
It is also based on Livier’s and PDI Attorney Peard’s own acknowledgement that the MOU
27 requirement would apply to all manner of joint law enforcement operations, and not just
Border Patrol or immigration matters; and that the purpose of the MOU would be to limit
28 the authority that federal officers already have under the law. SOF ¶ 18.
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 1 where any federal agency has agreed to these kinds of limits on their arrest authority.
2 Plaintiffs have never identified a single instance to contradict Mr. Rankin’s analysis, and
3 now finally acknowledge that they’ve never seen one, despite characterizing these
4 agreements as “commonplace” in their advocacy materials. SOF ¶ 19. For the Court’s
5 consideration, a list of currently identified joint task forces, enforcement operations or other
6 endeavors in which TPD officers participate with “federal officers” as defined in
7 Proposition 205 is attached as Exhibit 1.
8 E. Section 17-88: Whether City Court Can Have Jurisdiction Over Private
Civil Actions.
9
10 The January 16 Memo asserts that Proposition 205 cannot confer jurisdiction to the
11 city court over a private cause of action. SOF ¶ 20. City court jurisdiction can only be
12 granted by the Legislature, and it has only given municipal courts authority to adjudicate
13 civil ordinance violations with the City as plaintiff or misdemeanor criminal violations.
14 Ariz. Const. Art. VI, § 32 (jurisdiction as allowed by law); A.R.S. § 22-402(B) (authorizing
15 jurisdiction over misdemeanor violations of state law and violations of municipal
16 ordinances). Once again, the January 16 Memo is objectively correct and impartial.6
17 F. Possibility of Conflicts with SB1070 and Loss of State-Shared Revenue.
18 Both Memoranda discuss the potential consequences arising from conflicts between
19 Proposition 205’s provisions and SB1070’s remaining requirements, including the
20 prohibition against “limit[ing] or restrict[ing] the enforcement of federal immigration laws
21 to less than the full extent permitted by law,” and the requirement for TPD officers to make
22 a reasonable attempt to determine a detainee’s or arrestee’s immigration status “when
23 practicable,” unless “the determination may hinder or obstruct an investigation.” SOF ¶ 22.
24 Another statute, A.R.S. § 41-194.01, also known as SB1487, allows any member of the
25 state legislature to request the Arizona Attorney General investigate whether a city law “or
26 other official action adopted or taken by the governing body” of the City violates state law.
27 6
PDI’s attorney Peard effectively acknowledged that a private cause of action in City Court
was a problem, saying, “Agreed. The private cause of action in city court does not appear
28 to have too much precedent from what I can find.” SOF ¶ 21.
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 1 If he finds a violation of state law, he can direct the State Treasurer to strip the City of its
2 state-shared revenues, currently accounting for approximately 23% of the City budget.
3 A.R.S. § 41-194.01(B)(1)-(2); SOF ¶ 23.
4 The January 16 Memo concluded that it was Mr. Rankin’s opinion that several
5 aspects of Proposition 205 either violate, or likely violate, SB1070 by limiting or restricting
6 the enforcement of federal immigration laws and/or conflicting with the requirement to
7 investigate immigration status of detainees. SOF ¶ 24. However, Mr. Rankin also provided
8 the counterargument that a defense to a SB1487 claim is arguable—i.e., the fact that a voter-
9 approved initiative might not qualify as a law passed by a “governing body” of the City,
10 although this defense is uncertain because implementation of Proposition 205 could only
11 occur based upon certain specific official actions taken by the City Council. SOF ¶ 25. It
12 was Mr. Rankin—and not PDI or its attorneys—who first identified this possible defense
13 against an SB1487 claim, and he included this in the January 16 Memo. It’s impossible to
14 contemplate that this kind of balanced analysis could constitute “electioneering.”
15 G. Possibility of Losing of Federal Grant Funding.
16 Both Memoranda discuss the possibility of Tucson Police Department losing federal
17 grant funding in conjunction with federal government efforts to punish “sanctuary” cities
18 and make “sanctuary” status a factor that can be considered when awarding grants. SOF
19 ¶ 26. At the time of the January 16 Memo, there had been many lawsuits where local
20 jurisdictions had lost grant funds or were at risk of losing funds and sued to block federal
21 efforts to use sanctuary status as a factor. Mr. Rankin, in his capacity as the Tucson City
22 Attorney, participated in several of these actions to protect the City’s grant funding. SOF
23 ¶ 27. In July 2019, the Ninth Circuit issued the most current decision on this issue and
24 found the Department of Justice can lawfully base its awards of grant funding for local
25 police programs on the applicant city’s immigration policies and priorities. The current law
26 of the Ninth Circuit is that the federal government can use a city’s immigration policies and
27 priorities as a scoring factor in awarding funding. SOF ¶ 28. As with all of the other issues,
28 the Memoranda accurately and objectively described the potential effect of declaring
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 1 “sanctuary” status. For the Court’s consideration, a list of TPD’s federal current grants as
2 described in the October 8 Memo is attached as Exhibit 2.
3 II. Plaintiffs Fail to State a Claim for Relief under § 9-500.14.
4 Plaintiffs’ entire Complaint is premised on an alleged violation of an anti-
5 electioneering statute, A.R.S. § 9-500.14.7 Plaintiffs’ request for declaratory relief seeks a
6 declaration that “Defendants’ past and continuing behavior that has the purpose and
7 objective of influencing the outcome of the November 2019 municipal election is a violation
8 of A.R.S. § 9-500.14.” Complaint at ¶ 99. Although Plaintiffs fail to state a legal basis for
9 seeking injunctive or mandamus relief, see below at Sections III and V, they presumably
10 seek to enjoin Defendants based on an alleged violation of § 9-500.14, which otherwise
11 dominates the Complaint. Yet § 9-500.14 does not authorize a private right of action;
12 instead, the statute only permits the Arizona Attorney General or the local county attorney
13 to initiate a lawsuit. A.R.S. § 9-500.14(E).8
14 If a statute does not authorize a private cause of action, the appropriate relief is a
15 Rule 12(b)(6) dismissal for failure to state a claim. See McNamara v. Citizens Protecting
16 Tax Payers, 236 Ariz. 192, 196 n.3, 337 P.3d 557, 561 n.3 (App. 2014) (distinguishing
17 dismissal for failure to state a claim for no private cause of action from dismissal for lack
18 of standing). To determine whether a private right of action exists, the Court must first
19 consider the language of the statute itself. Burns v. City of Tucson, 245 Ariz. 594, 596, ¶ 6,
20 432 P.3d 953, 955 (App. 2018). If the statute is “plain and unambiguous,” no further
21
7
As a content-based restriction on the exercise of free speech, § 9-500.14 is arguably
22 unconstitutional as applied to elected officials like Councilmember Kozachik. See, e.g.,
Werkheiser v. Pocono Township, 780 F.3d 172, 178-81 (3d Cir. 2015) (distinguishing First
23 Amendment rights of elected officials from other public employees). Defendants, however,
do not wish to premise their defense on the statute’s constitutionality, opting instead to
24 identify the substantive and procedural failings of the Complaint.
8
To the extent Plaintiffs may argue that Kromko v. City of Tucson, 202 Ariz. 499, 47 P.3d
25 1137 (App. 2002), recognizes a private action under § 9-500.14, they are wrong. The City
of Tucson never challenged Kromko’s right to bring a claim under the electioneering statute
26 in either the trial or appellate court, so no court considered this issue in Kromko. See id.;
Kromko v. City of Tucson, Pima County Superior Court Case No. C20021902, available at
27 2002 WL 34449861 (Apr. 30, 2002), copy attached as Exhibit 3. Regardless, the Arizona
Legislature amended the statute in 2013 and clarified in current Subsection (E) who has the
28 right to bring a claim, as explained below.
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 1 interpretation is necessary. Id. In the absence of express language, an implied private right
2 of action may exist if it is “consistent with the context of the statutes, the language used,
3 the subject matter, the effects and consequences, and the spirit and purpose of the law.” Id.
4 (internal quotations omitted).
5 The Legislature knows how to create an express private right of action in a statute
6 involving use of public resources to influence an election. There are several similar
7 electioneering statutes for different kinds of political bodies. See A.R.S. § 11-410
8 (counties); § 15-511 (school districts); § 15-1408 (community colleges); § 15-1633
9 (universities); and § 16-192 (state government and special taxing districts). Only in the case
10 of special taxing districts and the State itself, did the Legislature explicitly authorize an
11 action “any resident of the jurisdiction that is alleged to have committed a violation . . . .”
12 A.R.S. § 16-192(D). For all of the other electioneering statutes, the Legislature only
13 authorized an action by the Arizona Attorney General or the local county attorney. A.R.S.
14 §§ 9-500.14(E), 11-410(E), 15-511(I), 15-1408(G), and 15-1633(H). Authorizing a private
15 action under a single electioneering statute was a deliberate choice by the Legislature; the
16 same 2013 bill added language specifying who could bring an action under all six statutes.
17 See 2013 Ariz. Legis. Serv. Ch. 88 (H.B. 2156), 51st Legis., 1st Reg. Sess., attached as
18 Exhibit 4. Plaintiffs’ “dissatisfaction with the enforcement mechanism and the limited
19 remedies prescribed by the legislature for alleged violations” of the municipal
20 electioneering statute may be “understandable,” but it “is the prerogative of the legislative
21 branch” to decide whether private citizens may bring a legal action. McNamara, 236 Ariz.
22 at 196, ¶¶ 13-14, 337 P.3d at 561.
23 Even if a private cause of action did exist under § 9-500.14—which Defendants
24 deny—Plaintiffs would not be entitled to any of their claimed relief. Nothing in the statute
25 authorizes injunctive or other relief.
26 III. Plaintiffs do not State a Claim for Mandamus Relief.
27 “Mandamus is an extraordinary remedy issued by a court to compel a public officer
28 to perform an act which the law specifically imposes as a duty.” Bd. of Educ. v. Scottsdale
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 1 Educ. Ass’n, 109 Ariz. 342, 344, 509 P.2d 612, 614 (1973). Mandamus relief is not
2 available unless the public officer is “specifically required by law to perform the act,” and
3 a complaint that does not identify a specifically required act should be dismissed for failure
4 to state a claim for relief. See Yes on Prop 200 v. Napolitano, 215 Ariz. 458, 464-68, ¶¶ 9-
5 28, 160 P.3d 1216, 1222-26 (App. 2007). Mandamus can either compel performance of a
6 “ministerial duty” or force an official to act in a discretionary matter without designating
7 how that discretion must be exercised. Kahn v. Thompson, 185 Ariz. 408, 411, 916 P.2d
8 1124, 1127 (App. 1995).
9 Plaintiffs’ Complaint does not identify any specific ministerial duty that any of the
10 public official defendants allegedly failed to perform. If anything, Plaintiffs want this Court
11 to somehow undo prior acts of public officials or to prevent public officials from taking
12 specific actions in the future, which is not appropriate for mandamus. See Sears, 192 Ariz.
13 at 69, ¶ 12, 961 P.2d at 1017. Moreover, Plaintiffs’ request for this Court craft an
14 ameliorative remedy for them belies the existence of a ministerial duty. See State Bd. of
15 Exam’rs v. Walker, 67 Ariz. 156, 165, 192 P.2d 723, 729 (1948) (stating ministerial duties
16 permit only one course of action on an admitted set of facts). If Plaintiffs cannot identify
17 the specific duty that must be performed, then there cannot be a ministerial duty at issue.
18 In addition, mandamus is not available against the City of Tucson—which is
19 separately named as a defendant—because it is not a public official with ministerial duties.
20 A.R.S. § 12-2021; see also City of Homerville v. Touchton, 647 S.E.2d 50, 51 (Ga. 2007)
21 (holding city was not a proper party to mandamus action); State ex rel. Keener v. Village of
22 Amberley, 685 N.E.2d 1247, 1248 (Ohio 1997) (dismissing mandamus action against
23 village which did not have duty to perform and which should have named village
24 councilmembers). Plaintiffs do not specify which of their claims apply to each specific
25 defendant, but if they intend the mandamus claim to go against the City of Tucson as well
26 as the individual defendants, the mandamus claim against the City must be dismissed.
27 Further, the person seeking mandamus relief must demand the public officer’s
28 specific performance of the ministerial duty involved before filing a lawsuit. Kaufman v.
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 1 Pima Jr. College Governing Bd., 14 Ariz. App. 475, 484 P.2d 244 (1971). Plaintiffs never
2 made a pre-litigation demand of any of the Defendants to perform any specific act. SOF
3 ¶ 29.
4 Because Plaintiffs cannot state a claim for mandamus relief, they are not entitled to
5 bring this action under the Rules of Procedure for Special Actions, A.R.S. § 12-2021, or
6 Article VI, § 18 of the Arizona Constitution, as claimed in ¶ 6 of the Complaint. See Ariz.
7 Const. Art. VI, § 18 (authorizing Superior Court to issue writs of mandamus, quo warranto,
8 review, certiorari, prohibition, and habeas corpus); A.R.S. § 12-2021 (authorizing courts to
9 issue writs of mandamus); Ariz. R. P. Spec. Actions 1 (authorizing special actions for
10 common law or statutory writs of mandamus, prohibition, or certiorari); Sears, 192 Ariz. at
11 69, ¶ 12, 961 P.2d at 1017 (explaining how special action inappropriate when plaintiff did
12 not seek true mandamus relief). Thus, any claim of special action subject-matter
13 jurisdiction based on mandamus relief fails as a matter of law.
14 IV. Plaintiffs do not Allege a Proper Subject for Declaratory Relief.
15 Plaintiffs’ request for declaratory relief fails because they do not seek a declaration
16 of “a right, status or legal relation in which [they have] a definite interest and a denial of it
17 by the opposing party.” Ponderosa Fire Dist. v. Coconino County, 235 Ariz. 597, 601,
18 ¶ 16, 334 P.3d 1256, 1261 (App. 2014). Rather, Plaintiffs seek a declaration that the two
19 memoranda violated a statute which does not create a private right of action. Plaintiffs
20 might have been permitted to seek declaratory relief under § 9-500.14 if they had a direct
21 right to bring a claim for relief under that statute. See Riley v. Cochise County, 10 Ariz.
22 App. 55, 59, 455 P.2d 1005 (1969). But a standalone declaration that does not involve any
23 of Plaintiffs’ own rights or interests is not permitted. A.R.S. § 12-1832.
24 V. Plaintiffs do not Allege a Legal Basis for Injunctive Relief.
25 Apart from a perfunctory recitation of the general standards for preliminary
26

27

28
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 1 injunctive relief under Rule 659 and A.R.S. § 12-1801, Plaintiffs do not allege any legal or
2 equitable basis for granting them injunctive relief. See Complaint at ¶¶ 9, 100-102. Instead,
3 Plaintiffs imply that § 9-500.14 supplies a legal basis for them to seek injunctive relief,
4 which is incorrect. See A.R.S. § 9-500.14(F) (only authorizing monetary penalty up to
5 $5000 along with repayment of “misused funds subtracted from the city or town budget”).
6 Even if Plaintiffs had standing to sue under § 9-500.14, which Defendants deny, that statute
7 does not authorize injunctive relief as a remedy. See id. (authorizing fines for violations).
8 When Plaintiffs allege that they “can demonstrate . . . a likelihood of success on the merits,”
9 see Complaint at ¶ 100, it begs the question: Merits of what? If Plaintiffs seek a
10 preliminary injunction or temporary restraining order under Rule 65, there still needs to be
11 an underlying, actionable claim for relief on which Plaintiffs may have a strong likelihood
12 of success. See, e.g., Filgueira v. US Bank Nat’l Ass’n, 734 P.3d 420, 423 (5th Cir. 2013)
13 (“Without any underlying causes of action, his claim for injunctive relief fails as well.”);
14 Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004) (“[A] traditional
15 injunction must be predicated upon a cause of action . . . regarding which a plaintiff must
16 show a likelihood or actuality of success of the merits.”). Because there is no underlying
17 cause of action available to Plaintiffs, their claim for “Injunctive Relief” must be dismissed.
18 VI. Plaintiffs’ Deliberate Delay in Filing Right Before Ballots Were Mailed
Warrants Summary Judgment Based on Laches.
19
Laches is an equitable doctrine intended “to prevent dilatory conduct and will bar a
20
claim if a party’s unreasonable delay prejudices the opposing party or the administration of
21
justice.” Lubin v. Thomas, 213 Ariz. 496, 497, ¶ 10, 144 P.3d 510, 511 (2006). In election
22
matters, waiting until shortly before the election begins forces the Court to “steamroll
23
through the delicate legal issues” to deal with short deadlines and risks compromising the
24
quality of judicial decision making and the fairness of the legal process. Sotomayor v.
25
Burns, 199 Ariz. 81, 83, ¶ 9, 13 P.3d 1198, 1200 (2000) (dismissing majority of claims
26
9
See Shoen v. Shoen, 167 Ariz. 58, 63, 804 P.2d 787, 792 (App. 1990) (describing
27 traditional four criteria for preliminary injunction of strong likelihood of success on merits,
irreparable injury not remediable by award of damages, balance of hardships favors moving
28 party, and public policy favors injunction).
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 1 regarding Legislative Council’s written analysis included in voter information pamphlet
2 where plaintiffs knew of analysis on June 15 but did not file special action until August 14,
3 the day before the pamphlet was supposed to be printed); Mathieu v. Mahoney, 174 Ariz.
4 456, 459-60, 851 P.2d 81, 84-85 (1993) (delay can impede the defendants’ ability to prepare
5 their defense). Late filing also limits the time available for appellate review. See
6 Sotomayor, 199 Ariz. at 83, ¶ 9, 13 P.3d at 1200.
7 Here, Plaintiffs knew of Mr. Rankin’s legal concerns and intent to prepare a written
8 analysis of Proposition 205 as early as December 2018. SOF ¶¶ 30-31. Mr. Rankin met
9 with PDI’s representatives on January 11, 2019 for two-hour discussion about his concerns,
10 secretly recorded by Livier, and Plaintiffs knew his written analysis was forthcoming. SOF
11 ¶¶ 32-36. They received the January 16, 2019 Memo and its media publicity on the date of
12 its release. SOF ¶ 37-38. Plaintiffs claim that, between January and August 2019, Tucson
13 voters told them the January 16 Memo or the subsequent analysis of it influenced their likely
14 votes. SOF ¶ 39. They also knew of Councilmember Kozachik’s weekly newsletters
15 throughout this period. SOF ¶ 40. Plaintiffs admit that they made a tactical decision not to
16 file a legal challenge until after the release of the October 8, 2019 memorandum. SOF ¶ 41.
17 They ultimately filed this action on October 9, 2019—the day before the City mailed out
18 ballots in the all-mail election. SOF ¶ 42. 45,000 voters, more than half of the eligible
19 voters, have already returned ballots by mail. SOF ¶ 43. October 30, 2019 is the last day
20 for voters to mail back ballots, although they may return ballots in person through
21 November 5, 2019. SOF ¶ 44. The Court’s substantive hearing takes place in the afternoon
22 of October 28, 2019. Thus, Plaintiffs made the tactical choice to wait approximately ten
23 months after first learning of Mr. Rankin’s concerns and nine months after he released the
24 January 16 Memo—which is the subject of the lion’s share of Plaintiffs’ allegations in the
25 Complaint—to file anything. They filed their Complaint immediately before ballots were
26 mailed out and only 27 days before the close of voting. And the earliest this Court might
27 issue any rulings is October 28, just 6 days before the end of all voting. The expedited
28 timeframes in themselves prejudice Defendants rights to obtain a considered decision from
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 1 the Court. Depending on the precise injunctive relief sought, there is also possible prejudice
2 to the voters who have already cast their ballots. There is simply no good excuse for
3 Plaintiffs’ dilatory conduct, and this Court should grant Defendants summary judgment
4 based on laches.
5 VII. The Court Should Award Defendants Their Reasonable Attorneys’ Fees
Incurred in Defending Against this Frivolous Lawsuit under A.R.S. § 12-349.
6

7 The one issue that repeatedly comes to mind when reviewing Plaintiffs’ Complaint
8 is that there was no good reason to file Plaintiffs’ factually and legally meritless claims,
9 especially considering the circumstances of Plaintiffs’ deliberate delay of filing any
10 Complaint until October 9, 2019; their failure to seek a temporary restraining order or
11 preliminary injunction (which would be the only way for them to obtain any relief from this
12 Court before the end of the election); and their inability to identify any form of relief that
13 could ameliorate their alleged injuries. Ballots in this all-mail election were mailed out to
14 voters on October 10, 2019—the same day that Plaintiffs served the Complaint on
15 Defendants, and one day after Plaintiffs filed the Complaint and provided it to the media.
16 SOF ¶ 45. Voters are permitted to mail their ballots back to the City of Tucson Clerk’s
17 Office at any time after filling out their ballots. SOF ¶ 46. October 30, 2019 is the last day
18 for voters to return ballots by mail, although they can drop off their ballots in person or vote
19 a replacement or provisional ballot through November 5, 2019. SOF ¶ 47.
20 Plaintiffs were not looking for any form of judicial relief when they filed their
21 Complaint. At most, this lawsuit was a carefully timed advocacy tactic. Although Plaintiffs
22 ask for injunctive relief prohibiting further distribution of the January 16 Memo and the
23 October 8 Memo, they do not seek any other injunction against alleged other electioneering
24 activity, even though their Complaint also alleges electioneering by Mayor Rothschild (who
25 is not a defendant), and via Councilmember Kozachik’s and Chief Magnus’s email
26 newsletters, media interviews, and editorial articles. See Complaint at ¶¶ 67-87 & 90. They
27 also have not filed an application for a temporary restraining order or preliminary
28 injunction, demonstrating they are not in any hurry to obtain injunctive relief. Moreover,
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 1 all of the public official defendants have the right to express their own political opinions
2 while not expending City resources, and they may even express those opinions in
3 communications that use their official titles. Garcetti v. Ceballos, 547 U.S. 410, 419 (2006)
4 (public employees entitled to free speech when acting in private capacity); Ariz. Att’y Gen.
5 Op. I15-002, at 4-5 (2015) (elected and public officials may use official titles when
6 expressing opinions in private capacities). Thus, this Court could not issue an injunction to
7 silence the public officials from these actions.
8 More importantly, there is no way at this late stage to “take corrective actions to
9 ameliorate and mitigate the [allegedly] deleterious effects” of the January 16 Memo and the
10 October 8 Memo. See Complaint at part D of prayer for relief. Tens of thousands of voters
11 have already returned ballots. SOF ¶ 43. There is no means to determine which voters, if
12 any, were influenced by either of the two memoranda or by others’ statements based on the
13 memoranda. SOF ¶ 48. There is no means to “correct” the direct and/or indirect effects of
14 the memoranda in a way that is assured to scrub voters’ minds of the statements made
15 therein. There is no means to give voters who have already voted and mailed their ballots
16 back a chance to change their votes if necessary. SOF ¶ 49. Ignoring the many substantive
17 flaws with Plaintiffs’ claims, by waiting until October 9, 2019 to file their Complaint, and
18 then not seeking a temporary restraining order, Plaintiffs essentially guaranteed that this
19 action cannot provide them with any relief.
20 Thus, this is a non-justiciable case lacking any reasonable legal or factual grounds.
21 Defendants should not be burdened with responding to meritless cases filed as a publicity
22 stunt. This Court must award Defendants’ their reasonable attorneys’ fees and double
23 damages of up to $5,000 “against an attorney or party” if the Court finds by the
24 preponderance of the evidence that the attorney and/or party brings a claim without
25 substantial justification or solely or primarily for harassment, among other sanctionable
26 conduct.10 A.R.S. § 12-349(A); Fisher ex rel. Fisher v. Nat’l Gen. Ins. Co., 192 Ariz. 366,
27 10
An older version of § 12-349 required a showing of harassment, groundlessness, and bad
faith, but the current statute requires sanctions upon a showing of either (1) harassment or
28 (2) claim made without substantial justification, defined as being groundless and in bad
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 1 370, ¶ 13, 965 P.2d 100, 104 (App. 1998) (confirming preponderance standard). As defined
2 in the statute, “without substantial justification” means that a claim is groundless and is not
3 made in good faith. A.R.S. § 12-349(F). Groundlessness is equivalent to frivolousness and
4 is determined objectively, while harassment and bad faith require subjective determination.
5 Rogone, 236 Ariz. at 50, ¶ 22, 335 P.3d at 1129. As explained above, all of Plaintiffs’
6 claims are legally and factually groundless, so this Court need only find either harassment
7 or bad faith. This Court may find that Plaintiffs lacked a subjective good-faith belief in
8 their claims based on the circumstances of their untimely action that is devoid of any factual
9 or legal basis, brought without any intent to seek judicial relief. Cf. Gilbert v. Bd. of Med.
10 Exam’rs, 155 Ariz. 169, 181, 745 P.2d 617, 629 (App. 1987) (interpreting good-faith belief
11 under substantively similar § 12-341.01).
12 In addition to the delay and timing issues, Plaintiffs’ repeated efforts to convey a
13 factually incorrect explanation of Proposition 205, and their various non-public admissions
14 since December 2018 that the City’s concerns were reasonable and/or correct provide
15 additional evidence of their bad faith intent in filing this action. See Section I, above. Now
16 they claim they want a permanent injunction to affect future elections. SOF ¶ 50.
17 Accordingly, this Court should award Defendants their reasonable attorneys’ fees pursuant
18 to § 12-349.
19 If this Court agrees, Defendants request an opportunity to submit a separate
20 application for attorneys’ fees and costs for this Court’s consideration to determine the
21 amount of the fee award. Defendants take no position on how to best allocate such an award
22 among the Plaintiffs and/or their attorneys and leave that determination up to this Court’s
23 considered judgment.
24 CONCLUSION
25 For all the foregoing reasons, Defendants request that the Court dismiss this action
26 or, in the alternative, to grant Defendants summary judgment on all claims not otherwise
27
faith. See Rogone v. Correia, 236 Ariz. 43, 50, ¶ 22 & n.1, 335 P.3d 1122, 1129 (App.
28 2014).
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 1 dismissed, and award Defendants their reasonable attorneys’ fees under § 12-349.
2 RESPECTFULLY SUBMITTED this 23rd day of October 2019.
3 FARHANG & MEDCOFF
4 By /s/Ali J. Farhang
Ali J. Farhang
5 Robert A. Bernheim
6 Attorneys for Defendants
7

8 ORIGINAL of the foregoing filed via TurboCourt

this 23rd day of October, 2019 with:
9
10 Clerk of the Court
Pima County Superior Court
11

12 COPIES of the foregoing served via

TurboCourt and email this 23rd day
13 of October 2019 upon:
14
Paul Gattone
15 Law Office of Paul Gattone
301 S. Convent
16 Tucson, Arizona 85701
17 (520) 623-1922
gattonecivilrightslaw@gmail.com
18 Attorneys for Plaintiff
19

20 /s/ Deanna L. Thompson

21

22

23

24

25

26

27

28
00621403.3

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