Orgeron seals the deal!

This morning, Councilman elect Mark Orgeron was "qualified" by the town clowns and the terms of his settlement were "ratified". Vice usurper Barbara Cowell, and recently elected Councilwoman Pat Workman did not attend the "special" meeting.

When Orgeron was asked if he was ready to be sworn in, he informed the council that he wanted it done by Justice Tammy Carnavale, and not former Magistrate Judge and current Town Clerk Terry Frausto.  After several minutes delay, the oath was administered and the documents were signed.. Congratulations sir, and good luck!

Today's Clown Council performance

With glassy eyes, the Quartzsite Town Council stared adoringly at Town Attorney Martin Brannan who said, "First is the investigation into voting irregularities. When I was hired as the Town Attorney I was provided with the obligation to perform the duties both that are prescribed by this council and by the Arizona Revised Statutes by the State Legislature. Those include ARS sections 16-924 and 16-1021 which deal with the imposition of civil and criminal penalties for violations of Title 16 which is the voting section of the voting Title of Arizona Revised Statutes. With regard to the hiring of investigators both by contract and by ordinance this council has promised that the Town Attorney will have the resources necessary to do the job that the council hired the Town Attorney to do. And that was the basis for hiring Mr. Humphrey."

To that sir, I respond "BULLSHIT"! 

And now, an analysis by a legal-minded friend:

16-1021. Enforcement by attorney general and county, city or town attorney

In any election for state office, members of the legislature, justices of the supreme court, judges of the court of appeals or statewide initiative or referendum the attorney general may enforce the provisions of this title through civil and criminal actions.

In any election for county, city or town office, community college district governing board, judge or a county, city or town initiative or referendum, the appropriate county, city or town attorney may enforce the provisions of this title through civil and criminal actions.

In any special district election, the county attorney of any county in which the district or a portion of the district is located or the attorney general may enforce the laws governing such election.

END STATUTE.

THIS MEANS THE TOWN ATTORNEY CANNOT ENFORCE TITLE 16-182, VOTER FRAUD STATUTES; which means the Town Attorney-Town Prosecutor can only INVESTIGATE, which means NO ABSOLUTE IMMUNITY in Federal Court from Title 18 voter intimidation lawsuits.>

VOTER FRAUD:

16-182. False registration; classification; cancellation of registration

A. A person who knowingly causes, procures or allows himself to be registered as an elector of any county, city, town, district or precinct, knowing that he is not entitled to such registration, or a person who knowingly causes or procures another person to be registered as an elector of any county, city, town, district or precinct, knowing that such other person is not entitled to such registration, or an officer who knowingly enters the name of any person not entitled to registration upon the register or roll of electors, is guilty of a class 6 felony.

B. If on the trial of a person charged with an offense under this section, it appears that the accused is registered as an elector of any county, city, town or precinct, without being qualified for such registration, the court shall order his registration canceled.

1) ONLY COUNTY ATTORNEY OR AG ARE APPROPRIATE  [statutorily empowered]ATTORNEYS TO ENFORCE Title 16-182 because it is a class 6 FELONY and Town Prosecutors cannot enforce laws [ like Voter registration fraud] that are felonies.

2)  Town Police have authority to investigate crimes upon a verified complaint, but they must forward a investigative report to the County Attorney.

Town Attorneys cannot enforce a Title 16-182.

Town Prosecutors cannot enforce Title 16-182.

ABSOLUTE VERSUS QUALIFIED IMMUNITY [All prosecutors have absolute immunity when prosecuting cases, even if they violated someone’s Constitutional rights. With one exception, acts they do as “INVESTIGATIVE ACTS”. If they violate people’s constitutional right sin an INVESTIGATIVE FUNCTION, the have only “qualified” immunity from personal liability.

Here’s what Brannan is claiming at today's council meeting:

First, is the investigation into voting irregularities. When I was hired as the Town Attorney I was provided with the obligation to perform the duties both that are prescribed by this council and by the Arizona Revised Statutes by the State Legislature. Those include ARS sections 16-924 and 16-1021 which deal with the imposition of civil and criminal penalties for violations of Title 16 which is the voting section of the voting Title of Arizona Revised Statutes.

With regard to the hiring of investigators both by contract and by ordinance this council has promised that the Town Attorney will have the resources necessary to do the job that the council hired the Town Attorney to do.

And that was the basis for hiring Mr. Humphrey. Mr. Humphrey was hired under Section 3-409 of the Quartzsite Revised Town Code formerly Section 3-4-8. he provides professional service an order Does not apply to his situation.

We are continuing in this investigation I intend to be meeting with the Attorney General in the next week or two weeks to ask him to take over the investigation because they have resources far beyond what we have.

If they refuse to do that of course the Town will do what’s necessary and I’ll do what’s necessary under the law to enforce these statutes.

We’d just be better served if the Attorney General.

US SUPREME COURT CASE:

Honorable Ronald V. DELLUMS, et al.,
v.
James M. POWELL, Chief, United States Capitol Police, and
John N. Mitchell, Department of Justice, Appellants,
Jerry V. Wilson, Chief, Metropolitan Police Department, et al.

No. 80-1331.

United States Court of Appeals,
District of Columbia Circuit.

Argued June 9, 1981.
Decided July 24, 1981.

https://law.resource.org/pub/reporter/F2/660/660.F2d.802.80-1331.html

It is of course well-recognized that the Attorney General is entitled to absolute immunity with respect to prosecutorial acts taken within the scope of his duties. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). However, as was noted in Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir. 1979), cert. denied sub nom Mitchell v. Forsyth, --- U.S. ---, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1980).

Imbler v. Pachtman ... utilized a functional approach.

It suggested that even a prosecuting attorney would not be absolutely immune from suit for actions which are not closely connected with the judicial process.

The Supreme Court's holding was narrow:

"We hold only that in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983." 424 U.S. at 431, 96 S.Ct. at 995.

The Court emphasized that the prosecutor's activities "were intimately associated with the judicial phase of the criminal process," and therefore, were "functions to which the reasons for absolute immunity apply with full force." Id. at 430, 96 S.Ct. at 995.

Id. at 1213.

Numerous other decisions, handed down both before and after the decision in Imbler, have distinguished between a prosecutor's "quasi-judicial functions on the one hand and his investigative and administrative functions on the other, granting absolute immunity to the former and relegating the latter to qualified immunity." Id. at 1213-14.

Of particular note is the decision of this court in Apton v. Wilson, 506 F.2d 83 (D.C.Cir.1974), holding that the Attorney General was not entitled absolute immunity for his part in directing the activities of the police in Washington, D.C. during the "May Day" demonstrations in 1971.1

Anticipating Imbler by two years, Judge Leventhal wrote for the court that:

In arguing for absolute immunity, the defendants stress the particular duties of the Attorney General, especially his broad supervisory responsibilities over much of the Federal criminal justice system. The Attorney General is on occasion referred to as the nation's "chief prosecutor" as a kind of journalistic shorthand. However, the absolute immunity often accorded prosecuting attorneys cannot shield the defendants in this case, for the prosecutor's absolute protection, like that of the judge from which it is derived, is both justified and bounded by the judicial traditions and procedures that limit and contain the danger of abuse.

(S)uch an extension of judicial immunity would not encompass the executive action complained of here the making of decisions establishing policy as to clearing streets, making arrests, and confining those detained for no comparable safeguards accompany them. 506 F.2d at 93-94 (footnotes omitted).

Following Imbler, this court once again ruled, in Briggs v. Goodwin, 569 F.2d 10 (D.C.Cir.1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978), that a prosecutor who was not involved in a prosecutorial/advocacy role was not shielded by absolute immunity. The court in Briggs recognized that absolute immunity extends only so far as necessary to protect a prosecutor's decision with respect to the initiation and conduct of particular cases. Imbler does not, in our reading, immunize prosecutors for any and all measures they may undertake in the course of wide-ranging law enforcement investigations or general fact-finding expeditions. 569 F.2d at 19-20. See also Tigue v. Swaim, 585 F.2d 909 (8th Cir. 1978); Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir. 1974); Hampton v. City of Chicago, 484 F.2d 602 (7th Cir. 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974).

16-924. Civil penalties; attorney general; county, city or town attorney

A. Unless another penalty is specifically prescribed in this title, if the filing officer for campaign finance reports designated pursuant to section 16-916, subsection A has reasonable cause to believe that a person is violating any provision of this title, except for violations of chapter 6, article 2, the secretary of state shall notify the attorney general for a violation regarding a statewide office or the legislature, the county officer in charge of elections shall notify the county attorney for that county for a violation regarding a county office or the city or town clerk shall notify the city or town attorney for a violation regarding a city or town office. The attorney general, county attorney or city or town attorney, as appropriate, may serve on the person an order requiring compliance with that provision. The order shall state with reasonable particularity the nature of the violation and shall require compliance within twenty days from the date of issuance of the order. The alleged violator has twenty days from the date of issuance of the order to request a hearing pursuant to title 41, chapter 6.

B. If a person fails to take corrective action within the time specified in the compliance order issued pursuant to subsection A, the attorney general, county attorney or city or town attorney, as appropriate, shall issue an order assessing a civil penalty of not more than one thousand dollars. The person alleged to have violated the compliance order has thirty days from the date of issuance of the order assessing the civil penalty to request a hearing pursuant to title 41, chapter 6.

C. Any party aggrieved by an order or decision of the attorney general, county attorney or city or town attorney, as appropriate, may appeal to the superior court as provided in title 12, chapter 7, article 6.

D. For the purposes of this section, failure to comply with a compliance order issued by the attorney general, county attorney or city or town attorney, as appropriate, as prescribed in subsection A is deemed an intentional act.

I told you so! And no, I don't hate to say it.

A directed ruling will be issued after attorneys for both parties offer Judge Silver a proposal on how to resolve the situation. The ruling states:

1 This background constitutes the Court’s factual findings.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Mark Orgeron,

Plaintiff,

vs.

Town of Quartsite, et al.,

Defendants.


No. CV-12-1238-PHX-ROS

ORDER

On July 12, 2012, the Court held a preliminary injunction hearing. Pursuant to the parties’ stipulation, that hearing was consolidated with the trial on the merits regarding Counts 1 through 3 of Plaintiff’s complaint. As set forth below, Plaintiff is entitled to relief on Count 2 of his complaint but Counts 1 and 3 will be dismissed.

BACKGROUND

1

The town of Quartzsite is located in La Paz County. Prior to July 2009, Plaintiff Mark Orgeron lived in nearby Yuma County. In July 2009, Plaintiff moved into a trailer park in Quartzsite. (Exhibit 1). Plaintiff began employment with the Quartzsite Elementary School District on July 14, 2009. (Exhibit 2). In the fall of 2010, Plaintiff and his wife bought and moved into a house in Quartzsite. (Exhibit 3). In connection with purchasing this house, Plaintiff and his wife executed a deed of trust. A portion of that deed of trust stated Plaintiff and his wife agreed to Despite buying the house in Quartzsite, Plaintiff’s wife continues to spend a portion of her time at a rental property in Yuma closer to her work.

The language of the Quartzsite code is confusing but it seems to provide for the automatic transfer of power on election day. It states “Council Members shall assume the duties of office at the regularly scheduled Council meeting next following the date of the general election at which, or effective as of the date of which, the Council Members were elected.” Quartzsite Code § 2-1-3.

Defendants’ latest supplemental brief argues state law provides for current officers to continue in place until newly elected individuals are formally recognized as “qualified” and allowed to take their place. The Court need not address the precise timing of when newly elected individuals assume their positions. “occupy, establish, and use” the Quartzsite house as their “principal residence within 60 days” after signing the deed of trust. Plaintiffs and his wife also agreed they would occupy the house as their “principal residence for at least one year after the date of occupancy.” (Exhibit 4, § 6). Plaintiff keeps all of his vehicles, clothes, and other personal property in the house in Quartzsite.

After relocating to Quartzsite, Plaintiff attempted to register to vote in La Paz County. To do so, Plaintiff went to a Department of Motor Vehicles location in Yuma and changed his address to an address in Quartzsite. The address was changed but there was an error on the zip code. Plaintiff’s voter registration was rejected because of the zip code error. Plaintiff did not know about the zip code error and was unaware his voter registration had been rejected. On June 28, 2011, Plaintiff successfully registered to vote in La Paz County. (Exhibit 7).

Prior to May 15, 2012, Defendant Jose Lizarraga served as mayor of Quartzsite, Defendant Barbara Cowell served as Vice Mayor and as a member of the Town Council, and Joseph Winslow served as a member of the Town Council. Mr. Lizarraga decided not to run for reelection but Ms. Cowell and Mr. Winslow campaigned to retain their Town Council seats. Plaintiff also campaigned for a seat on the Town Council. At the election held on May 15, 2012, non-party Ed Foster won election as mayor while Plaintiff received the most votes for a seat on the Town Council. (Exhibit 8). Non-party Patricia Workman received the second most votes for Town Council. Ms. Cowell and Mr. Winslow received the third and fourth-most votes for Town Council. Because there were only two seats available, Ms. Cowell and Mr. Winslow did not achieve reelection. Quartzsite’s code provides authority is transferred “effective as of the date [of the election].”

Quartzsite Code § 2-1-3. Thus, as of May 15, 2012 Mr. Foster was entitled to the position of mayor, Plaintiff and Ms. Workman were entitled to seats on the Town Council, and Ms. Cowell and Mr. Winslow were not going to continue as members of the Town Council.

On June 4, 2012, and before the newly elected individuals assumed their positions, the incumbent Mayor and Town Council held a meeting. At that meeting, Mr. Lizarraga, Ms. Cowell, and Mr. Winslow “purported to exercise the powers of office, and purported to cast votes.” (Doc.19 at 7). By a vote of 6-1, Mr. Lizarraga, Ms. Cowell, Mr. Winslow, and the other members of the Town Council voted to disqualify Mr. Foster under a provision of the Quartzsite code that prevents an individual who owes money to Quartzsite from serving as a public official. And by a vote of 5-2, Plaintiff was disqualified from taking his seat on the Town Council based on his alleged failure to satisfy the one-year residency requirement set forth by Arizona law and the Quartzsite code.

Based on the disqualification of Plaintiff and Mr. Foster, Plaintiff filed a three-count complaint against Town of Quartzsite, Mr. Lizarraga, the members of the Town Council, and the Quartzsite Town Clerk. Plaintiff later filed an amended complaint against the same Defendants. The amended complaint contained four claims. First, Plaintiff claimed the one-year residency requirement violated his “right to travel under the Privileges and Immunities Clause and the Due Process Clause of the Fourteenth Amendment of [the] U.S. Constitution.” (Doc. 19 at 9). Second, Plaintiff sought “declaratory and injunctive relief” that Defendants were misapplying the one-year residency requirement of Arizona law. Third, Plaintiff sought “declaratory and injunctive relief” that disqualification of Mr. Foster as the mayor-elect violated Arizona law. And fourth, Plaintiff claimed Defendants violated 42 U.S.C. § 1973c by failing to obtain preclearance of the town code provision used to disqualify Mr. Foster. Plaintiff sought preliminary injunctive relief in the form of an order removing certain members of the Town Council as well as his appointment as a legitimate member of the Town Council. Shortly after Plaintiff filed his complaint, the La Paz County Attorney filed a quo warranto

The term “quo warranto” refers to “[a] common-law writ used to inquire into the authority by which a public office is held or a franchise is claimed.” Black’s Law Dictionary 1264 (7d ed. 1999). action in La Paz County Superior Court. As explained by Defendants, “by bringing the quo warranto
action, the County Attorney has necessarily determined that he has reason to believe that the office of the Quartzsite Town Council is being usurped, intruded or unlawfully held.” (Doc. 18 at 2). Defendants believe this Court should abstain until the quo warranto action is resolved while Plaintiff argues the filing of the quo warranto action should not impact this case because “political corruption” will prevent him from adequately defending his rights in the La Paz County Superior Court.

At the start of the preliminary injunction hearing on July 12, 2012, Plaintiff’s counsel stated the parties had reached an agreement that: on the factual issues of where Mr. Orgeron resides and why he was disqualified from office . . . this hearing should be dispositive. There’s still some factual issues that are particular to the Voting Rights Act in Count 4
that we’ll probably resolve through a Motion for Summary Judgment later on. But [the parties agree] that this hearing should be consolidated with the trial on the merits as to the factual issues in Counts 1 through 3 . . . . See Fed. R. Civ. P. 65(a)(2) (allowing for consolidation of preliminary injunction hearing with trial on the merits). Based on that agreement, the Court will proceed to a final determination regarding Counts 1 through 3.

ANALYSIS

I. Federal Jurisdiction

The current complaint contains two claims pursuant to 42 U.S.C. § 1983. The original complaint, however, contained only one claim under 42 U.S.C. § 1983 based on Plaintiff’s alleged federal right to intrastate travel. Initially, the Court questioned whether the sole § 1983 stated a claim on which relief could be granted. Of course, the Court has jurisdiction to decide that issue.

See Bollard v. Cal. Province of the Society of Jesus

, 196 F.3d 940, 951 (9th Cir. 1999) (“Any non-frivolous assertion of a federal claim suffices to establish federal question jurisdiction, even if that claim is later dismissed on the merits under Rule 12(b)(6).”). But if the sole § 1983 were to be dismissed, the Court could have exercised its discretion and refused to hear the state-law claims. 28 U.S.C. § 1367(c)(3).
Now that Plaintiff has added a second § 1983 claim, the path of possibly dismissing the intrastate travel claim and declining jurisdiction on the other claims is not possible. Because the amended complaint clearly raises non-frivolous claims under federal law, the Court has jurisdiction to hear this matter. And due to the two federal claims, supplemental jurisdiction exists regarding the two state-law claims. Even under a cramped view of the “same case or controversy” requirement, the state-law claims qualify for the exercise of supplemental jurisdiction. 28 U.S.C. § 1367(a).

II. Abstention is Not Appropriate

In an attempt to avoid the merits of the disputes, Defendants claim the filing of the quo warranto action in state court should lead the Court to abstain from hearing this suit. The basis for this argument is Younger v. Harris, 401 U.S. 37 (1971). According to Defendants, “Younger abstention is required when state-court proceedings are initiated before any proceedings of substance on the merits have occurred in federal court.” (Doc. 25 at 2). Defendants are correct regarding the general scope of Younger abstention. But Defendants overlook a crucial difference between the quo warranto action and the present suit.

The quo warranto action involves some of the same defendants as the present suit but it is undisputed that Plaintiff is not a party in the quo warranto action. Plaintiff may be allowed to intervene in that action if he wished to do so, but he is not required to do so nor is there a requirement that the state court allow him to do so if he were to make such a request. The Ninth Circuit has held Younger abstention can only be applied against a party “actually involved in state litigation.” Benavidez v. Eu, 34 F.3d 825, 832 (9th Cir. 1994). Based on Plaintiff’s current absence from the quo warranto action, Younger abstention is not appropriate.

In earlier briefing, the parties also addressed the possibility that the Court should abstain under Railroad Commission v. Pullman Co., 312 U.S. 496 (1941). Pullman abstention applies only upon the satisfaction of three criteria. Those criteria are: “(1) the federal plaintiff’s complaint requires resolution of a sensitive question of federal constitutional law; (2) the constitutional Based on Defendants’ failure to present controverting evidence, the standard of review and burden of proof issues have little impact. That is, even if a more deferential standard of review applied and the burden of proof were higher, Plaintiff would still be entitled to relief.

The question could be mooted or narrowed by a definitive ruling on the state law issues; and (3) the possibly determinative issue of state law is unclear.” Potrero Hills Landfill, Inc. v. County of Solano, 657 F.3d 879, 888 (9th Cir. 2011). Pullman abstention generally is not proper if “there is no uncertain question of state law.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 236 (1984). Thus, abstention is not appropriate when the outcome turns on the “facts of the particular case” rather than some uncertainty regarding the governing law. Pearl Inv. Co. v. City and County of San Francisco, 774 F.2d 1460, 1465 (9th Cir. 1985). Here, Defendants have not identified any uncertain question of state law. The parties agree that Arizona law directs how residency is to be defined and the only disagreement appears to be onthe factual issues surrounding Plaintiff’s residence in Quartzsite. Therefore, Pullman abstention is not appropriate.

III. Plaintiff Was Qualified for Town Council

In Count 2 of his complaint, Plaintiff claims Defendants misapplied the one-year residency requirement in Arizona law. In particular, Plaintiff claims the factual determination by the Town Council that he was not a resident of Quartzsite was wrong. The parties have not specified whether the Court must conduct a de novo inquiry on this issue or if a more deferential review is required.

The parties have also not identified Plaintiff’s burden of proof. Absent guidance from the parties, the Court will conduct a de novo inquiry and use the preponderance of the evidence standard.5 Arizona law provides [a] person shall not be a member of a city or town council unless, at the time of the election, the person is . . . a qualified elector residing within the city or town at the time of the election, and has resided in the city or town for one year next preceding the election. A.R.S. § 9-232(A). The statutory definition of “resident” is “an individual who has . . .actual physical presence in the political subdivision, combined with an intent to remain.” A.R.S. § 16-101(B).

The Court admits to some confusion regarding Defendants’ decision to disqualify Plaintiff based on these statutes. There can be no serious dispute that Plaintiff had an “actual physical presence” in Quartzsite for close to three years prior to the election. Plaintiff’s physical presence is evidenced by employment records, rental records, utility bills, documents connected to the purchase of his home, and Plaintiff’s own uncontradicted testimony. Thus, the only possible basis for dispute is whether Plaintiff had an “intent to remain” in Quartzsite.

On the issue of intent, Plaintiff testified he formed such an intent not long after he moved to Quartzsite in July 2009. Defendants did not offer any evidence casting doubt on Plaintiff’s stated intent. In fact, all the evidence supported Plaintiff’s testimony. Plaintiff owns a home in Quartzsite and all of his vehicles and personal property are in Quartzsite. Also, Plaintiff’s wife testified that she spends certain days of the week in Quartzsite and plans to live there full-time once she retires from her job in Yuma. Plaintiff clearly had an “intent to remain” in Quartzsite at least one year prior to the election.

Defendants presumably had some basis for determining Plaintiff was not a resident of Quartzsite but Defendants chose not to present the Court with that basis. In short, the Court is left with uncontroverted evidence that Plaintiff was a resident of Quartzsite for more than one year prior to the election. Thus, Plaintiff is entitled to declaratory judgment on Count 2. The parties will be directed to submit a proposed order specifying the precise actions Defendants should be ordered to take to effectuate Plaintiff’s success on Count 2.

IV. Count 1 Will Be Dismissed

Plaintiff’s request for a temporary restraining order, motion for preliminary injunction, and supplemental briefing focused on Count 1 and his belief that his federal right to intrastate travel was being infringed by application of the one-year residency requirement. The relief sought in Count1, however, is identical to the relief sought in Count 2. As set forth above, Plaintiff is entitled to relief on Count 2. Therefore, the Court need not address Count 1.

See Northwest Austin Mun. Utility Dist. No. One v. Holder, 557 U.S. 193, 205 (2009) (courts should “not decide a constitutional question if there is some other ground upon which to dispose of the case”).

V. Count 3 Will Be Dismissed

In Count 3, Plaintiff seeks declaratory relief regarding the provision of Quartzsite code that prohibits individuals who owe Quartzsite money from serving as an elected official. The provision at issue prevented Mr. Foster from taking his seat as Mayor. Plaintiff believes he has standing to raise this claim because he “intend[ed] to work closely with [Mr. Foster] to improve public policy in” Quartzsite. (Doc. 19 at 11). By refusing to seat Mr. Foster, Plaintiff’s plans to work with Mr. Foster are being thwarted. The Court will dismiss this claim for lack of standing. Stormans, Inc v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (standing may be considered sua sponte).

“Standing includes two components: Article III constitutional standing and prudential standing.” Yakima Valley Memorial Hosp. v. Washington State Dept. of Health, 654 F.3d 919, 932 (9th Cir. 2011). A plaintiff must have both types of standing and the Court need not address both if one type is found lacking. See Estate of McKinney v. United States, 71F.3d 779, 782 (9th Cir. 1995) (court need not address Article III standing if plaintiff lacks prudential standing). Prudential standing requires the plaintiff “(1) assert his own rights, rather than rely on the rights or interests of third parties; (2) allege an injury that is more than a generalized grievance; and (3) allege an interest that is arguably within the zone of interests protected or regulated by the statute or constitutional guarantee in question.” Hong Kong Supermarket v. Kizer,

830 F.2d 1078, 1081 (9th Cir. 1987). These requirements are disjunctive, meaning the “[f]ailure to satisfy any of these . . . requirements defeats standing.” Id. Plaintiff has not satisfied the first or second requirement. On the first requirement, Count 3 primarily is an attempt to vindicate the rights of Mr. Foster rather than Plaintiff. The main focus of Count 3 is the denial of Mr. Foster’s right to sit as Mayor. It is not clear that Mr. Foster wishes to vindicate this right and Mr. Foster would clearly be the preferable individual to bring a challenge regarding this right. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 80 (1978) (noting complications of allowing plaintiff to raise rights of third-party).
And on the second requirement, Plaintiff’s injury is in large part one shared by all residents of Quartzsite. All residents of Quartzsite have an interest in having the duly elected mayor sit. Plaintiff claims he is suffering more than a generalized grievance because he planned “to work closely with the Mayor Elect to improve public policy in Quartzsite.” But this injury is far too tenuous; many individuals in Quartzsite could formulate a substantially similar injury. See Warth v. Seldin, 422 U.S. 490, 499 (1975) (“generalized grievance” is a harm “shared in substantially equal measure by all or a large class of citizens”). For example, any resident could claim he was being injured because he was not being governed by the duly elected Mayor. Generalized injuries of this type are not sufficient.See Schlesinger v. Reservists Committee to Stop the War, 18 U.S. 208, 217 (1974) (the “generalized interest of all citizens in constitutional governance” is insufficient for standing purposes). Because Plaintiff’s alleged injury is substantially similar to that shared by all residents of Quartzsite, he lacks prudential standing. Count 3 will be dismissed.

VI. Count IV

Count IV appears to have been added to Plaintiff’s complaint to ensure the presence of federal jurisdiction. It is unclear whether Plaintiff will still have an interest in pursuing that claim now that he has obtained the relief that most directly impacts him. The Court is, of course, willing to hear the claim but there is serious doubt whether to do so would be a wise use of resources by the Court and the parties. Quartzsite has admitted that it
“inadvertently failed to submit” the ordinance for approval. Quartzsite has now done so. (Doc. 36 at 7). Based on this submission, it is unclear why Quartzsite is attempting to enforce the ordinance at this time. Alternatively, if the ordinance were to obtain clearance, it is unclear what relief the Court could grant. The parties will be ordered to confer regarding Count IV and make every effort to settle that claim.

VII. Summary

Plaintiff is entitled to relief on Count 2. The parties will be directed to confer and submit a proposed order regarding the appropriate type of relief on that count. Count 1 will be dismissed based on the doctrine of constitutional avoidance and Count 3 will be dismissed due to lack of standing. The parties will be directed to submit a joint status statement regarding Count 4.

Accordingly

IT IS ORDERED

no later than July 24, 2012 the parties shall confer and file a joint proposed order setting forth the relief the Court should grant based on Plaintiff’s success on Count 2.

IT IS FURTHER ORDERED

Counts 1 and 3 are DISMISSED.

IT IS FURTHER ORDERED

no later than July 27, 2012 the parties shall file a joint statement regarding Count 4.
DATED this 20th day of July, 2012.

Langhofer smack down on TOQ election challenge

Langhofer  likely put the last nail in the cabal coffin with this hammer! Final arguments have been filed in Candidate-elect Mark Orgeron's legal challenge to the Quartzsite Town Council refusing to seat him. Chief Judge Roslyn O. Silver is expected to rule quickly on the matter.

....................................................................................................................

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

MARK ORGERON,

Plaintiff,

v.

TOWN OF QUARTZSITE,

et al.,

Defendants.

No. CV-12-01238-PHX-ROS

PLAINTIFF’S RESPONSE TO

DEFENDANTS’ SECOND SUPPLEMENTAL BRIEF

Plaintiff Mark Orgeron (“Orgeron”) hereby responds to the second supplemental brief filed by the Defendants on July 18, 2012 (the “Second Supplemental Brief”).

The issues are (1) whether the Defendants untimely disqualified the Mayor Elect and Orgeron and (2) whether this Court has original and supplemental jurisdiction over the various claims in the First Amended Verified Complaint.

I. TIMELINESS OF THE DISQUALIFICATIONS

Orgeron agrees with the Defendants that, although Town Code § 2-1-3 facially entitles successful candidates to take office immediately after polls close in the general election, the Town Council must canvas the vote before the successful general election candidates are entitled to take office. Holding otherwise would controvert state law and invite a “rush to the courthouse” after every close election, while votes are still being counted.

See also Ariz. Rev. Stat. §§ 9-234(A), 9-821, 38-295(B) (entitling incumbents to canvas elections and to hold office until their successors are qualified).

The Defendants’ disqualification of the Mayor Elect and Orgeron was nonetheless untimely. The appropriate time for a challenge to the qualifications of the Mayor Elect and/or Orgeron was before or immediately after the primary election. State law allows candidates to be challenged before or immediately after a primary election—and such challenges may include challenges based on residency or any other qualifications for office. Ariz. Rev. Stat. §§ 16-351(B), 16-671, 16-672(A)(2). By approving the primary election results, and allowing both the Mayor Elect and Orgeron to proceed to the general election, the Defendants presented the voters a false choice between “real” candidates who would not be disqualified if elected and “fake” candidates whom the Defendants never intended to qualify for office. The delayed challenge prejudiced the voters, including Orgeron, by depriving them of a genuine option in selecting their preferred candidates in the general election

i.e., essentially forcing the voters to elect the candidates favored by the Town Council).

Because the Defendants failed to timely challenge the qualifications of the Mayor Elect and Orgeron, and because the delay prejudiced the voters in the Town, including Orgeron, the doctrine of laches prohibits them from doing so after the general election.

See Save the Peaks Coalition v. United States Forest Serv.

, 669 F.3d 1025, 1031 (9th Cir. 2012) (“To establish laches, a party must demonstrate ‘(1) that the opposing party lacked diligence in pursuing its claim; and (2) that prejudice resulted from that lack of diligence.’” (citation omitted)).

II. ORIGINAL JURISDICTION

This Court has original jurisdiction over both Count I and Count IV because “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

a. Count I

Count I arises under the Due Process and Privileges and Immunities Clauses of the Fourteenth Amendment to the U.S. Constitution, and therefore is within the original jurisdiction of this Court.

b. Count IV

Count IV arises under 42 U.S.C. §§ 1973C and 1983 and therefore is within the original jurisdiction of this Court.

The U.S. Supreme Court has held that individual voters have standing to bring a private right of action to enforce the preclearance requirements of 42 U.S.C. § 1973C.

Allen v. State Bd. of Elections,

393 U.S. 544, 554-57 (1969); accord Perkins v. Matthews,400 U.S. 379 (1971).

Although the Defendants suggest that this Court does not have jurisdiction because Count IV must be tried before a three-judge panel, that issue is procedural and not jurisdictional. To be sure, Count IV must be tried before a three-judge panel, 42 U.S.C. § 1973C(a)—but a“[a] single judge may conduct all proceedings except the trial” as to Count IV, and may issue orders (other than a preliminary injunction) as to Count IV,

see 28 U.S.C. § 2284(b)(3). Because there is no pending motion for a preliminary injunctionas to Count IV ( i.e., the pending motion for preliminary injunction applies to Counts I, II, and III only), there is no need for the empanelment of additional judges at this time.

See generally Perkins

, 400 U.S. at 383-387 (discussing the limited responsibilities of threejudge

courts, and the importance of not vesting matters with a three-judge court without express statutory authorization).

1 Plaintiff will, of course, move for the empanelment of a

three-judge court before moving for summary judgment as to Count IV. Regardless of when a three-judge court is empaneled, however, Count IV arises under federal statutes and is therefore within the original jurisdiction of this Court.

See 28 U.S.C. § 1331. The

issue is procedural and not jurisdictional.

c. Original Jurisdiction Is Unrelated to the Merits of the Claims

The Defendants argue strenuously that there is no original jurisdiction because Count I and Count IV will fail on the merits. Putting aside the merits of the Count I and

Although the Plaintiff does not believe Section 1973C(a) requires a three-judge panel to review any issues other than the merits of Count IV, the Plaintiff would have no objection to the immediate empaneling of a three-judge court. If this Court wishes to deem the Second

Supplemental Brief as a motion for the empanelment of a three-judge court, or if the Defendants wish to move for the empanelment of a three-judge court immediately rather than waiting for the Plaintiff to do so, the Plaintiff would have no objection to such a motion.

Count IV—which have already been briefed thoroughly as to Count I, and will be ddressed in a subsequent motion for summary judgment as to Count IV—the Defendants’ argument misconstrues the nature of original jurisdiction.
The question of federal jurisdiction is completely distinct from the likelihood of success on the merits.

As frequently happens where jurisdiction depends on subject matter, the question whether jurisdiction exists has been confused with the question whether the complaint states a cause of action. The Judicial Code, in vesting jurisdiction in the District Courts, does not create causes of action, but only confers jurisdiction to adjudicate those arising from other sources which satisfy its limiting provisions.

Petitioner asserted a cause of action under the [a federal law]. To determine

whether that claim is well founded, the District Court must take jurisdiction, whether its ultimate resolution is to be in the affirmative or the negative. If the complaint raises a federal question, the mere claim confers power to decide that it has no merit, as well as to decide that it has.

Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co.

, 341 U.S. 246, 249 (1951);

accord Louisville & N. R. Co. v. Rice

, 247 U.S. 201, 203 (1918) (“If the plaintiff really makes a substantial claim under an act of Congress there is jurisdiction whether the claim ultimately be held good or bad.”);

Bollard v. California Province of the Soc’y of Jesus,

196 F.3d 940, 951 (9th Cir. 1999) (“Failure to state a claim under federal law is not the same thing as failure to establish federal question jurisdiction under 28 U.S.C. § 1331.

Any non-frivolous assertion of a federal claim suffices to establish federal question jurisdiction, even if that claim is later dismissed on the merits under Rule 12(b)(6).”).

Accordingly, the Defendants’ arguments as to the merits of Count I and Count IV are not properly categorized as jurisdictional arguments, and this Court must take jurisdiction and resolve those claims.

While the merits are irrelevant to the jurisdictional issue raised by this Court, the Plaintiff notes that, on the merits, both Count I and Count IV are valid claims.

As to Count I, the Defendants argue that the claim fails on the merits because there is no federal right to run for local office or to elect local politicians—but for the reasons discussed in the Plaintiff’s Response to the Defendant’s Supplemental Brief, that argument both oversimplifies the claim in Count I (which relies the federal right to travel in addition to the right to run for office and to select the candidate of one’s choosing) and relies on Snowden v. Hughes, 321 U.S. 1 (1944), which is no longer good law. Those arguments need not be restated here.

As to Count IV, the Defendants argue that, because Town Code § 2-1-10 might eventually be precleared pursuant to 42 U.S.C. § 1973C, the Plaintiff will have no remedy for his claim in Count IV. In reality, however, Town Code § 2-1-10 is very unlikely to receive preclearance. The

Even if Count I and Count IV were very weak on the merits—which they are not— this Court has original jurisdiction over those claims because they arise under the U.S. Constitution and the U.S. Code.

III. SUPPLEMENTAL JURISDICTION

The Defendants argue that there is no supplemental jurisdiction for Count II or Count III. This argument fails, for the reasons discussed below.

a. Waiver

The Defendants have waived their arguments against supplemental jurisdiction. At the preliminary injunction hearing on July 12, 2012, this Court asked counsel for the Defendants whether they agreed that, if there is federal jurisdiction for Count IV, the Court would have supplemental jurisdiction over the other claims in the First Amended Verified Complaint. Counsel for the Defendants expressly agreed that the Court would, in fact, have supplemental jurisdiction in these circumstances. The Defendants have therefore waived their arguments against supplemental jurisdiction.

b. Exhaustion of State Law Remedies

The Defendants next argue that there is no supplemental jurisdiction over Count II because Orgeron failed to exhaust his state law remedies before initiating an action in federal court. This argument fails for two reasons.

First, there is simply no requirement that a plaintiff “exhaust state law remedies” before entering federal court. Holding otherwise would effectively eliminate supplemental jurisdiction, because all state claims would have been resolved in state court

ordinance prohibits individuals from running for office if they either (a) owe money to the Town or (b) do not meet “certain standards of conduct.” Financial qualifications disproportionately burden racial and ethnic minorities, which historically are less affluent and more likely to have outstanding debts, and elections regulations that disproportionately affect racial and ethnic minorities will not be precleared.

See 28 C.F.R. § 51.52 (requiring rejection of an elections
ordinance where the government cannot demonstrate that the change will have no discriminatory effects);

id. § 51.54(b) (indicating that an elections ordinance will be found to have a

discriminatory effect if it “will make members of [a racial or ethnic group] worse off than they had been before the change”). Furthermore, the imposition of “certain standards of conduct” is so vague and easily manipulated to exclude racial and ethnic minorities from office that it, too, will be denied preclearance.

See id. § 51.57(b) (considering whether an elections regulation was

adopted with “objective guidelines and fair and conventional procedures”).

before any federal actions are initiated. The Defendants cite no authority in support of their exhaustion argument.

Second, although the Defendants argue that Orgeron should have filed an election contest pursuant to Ariz. Rev. Stat. § 16-671,

et seq., before initiating this action, see

Second Supplemental Brief at 5, Orgeron would not have been able to raise the argument in Count II under the Arizona election contest statutes. Section 16-672(A) of the Arizona Revised Statutes authorizes an elector to file an election contest for any of five specifically enumerated reasons. Orgeron’s claim in Count II—that a qualifications statute was misconstrued and misapplied—is not one of the five reasons for an elections contest under Section 16-672(A). So even if Orgeron were required to exhaust state law remedies before initiating this action—which he was not—there was no remedy available to Orgeron for the issue in Count II under the state elections contest statute cited by the Defendants.

c. All the Claims in This Case Are Part of the Same Case or

Controversy.

Although Count II and Count III arise under state law, this Court has supplemental jurisdiction over those claims because “the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).

The claims in Count II and Count III are part of the case and controversy presented in Count I and Count IV. Each of the claims involves the following common questions of fact and law:

The identity and role of the plaintiff and each defendant, all of whom are

parties to each count in the First Amended Verified Complaint.

The adoption, meaning, and validity of Town Code § 2-1-10, which

regulates the qualifications for

both mayors and members of Town Council

in the Town.

The conduct and results of the 2012 Elections.

The June 4th Meeting, and the canvas of the 2012 Elections.

The June 12th Meeting, and the fact that individuals other than the

candidates who prevailed in the 2012 Elections have purported to exercise

the powers of office.

The filing of the quo warranto action, and the possible effects of the quo

warranto

action on Orgeron’s legal claims and rights.

The proper application of the qualifications statutes and ordinances to the

candidates who received the most votes in the 2012 Elections.

On these facts, all four claims in this case are part of the same case or controversy and within the supplemental jurisdiction of the Court pursuant to Section 1367(a).

See Kuba v. 1-A Agric. Ass’n, 387 F.3d 850, 855 (9th Cir. 2004) (“Nonfederal claims are part of the same ‘case’ as federal claims when they derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them in one judicial proceeding.”).

The Defendant’s reading of the case and controversy requirement, meanwhile, is so narrow that virtually no case would ever qualify for supplemental jurisdiction, and would require the re-litigation of virtually every related issue in state court whenever there is not a directly applicable provision in the U.S. Constitution or the U.S. Code. Supplemental jurisdiction was designed to avoid exactly that contingency, and to help conserve scarce judicial resources through the adjudication of all reasonably related claims in one judicial action.

See Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (noting “judicial economy” as a relevant factor in the exercise of supplemental jurisdiction).

d. Supplemental Jurisdiction Is Not Discretionary in This Case.

The Defendants also note that, under 28 U.S.C. § 1367(c), this Court “may” decline supplemental jurisdiction if one of four factors is present. In this case, none of the four factors is present, so supplemental jurisdiction is mandatory.

The first factor—whether the state law claims “raise[] a novel or complex issue of State law”—is not applicable here. Count II raises only factual issues, as there is no dispute as to the legal definition of residency under Arizona law. Count III, meanwhile, raises the straightforward question of whether the Town was authorized to adopt Town Code § 2-1-10, an issue as to which there are Arizona precedents on-point. There is, therefore, no “novel or complex issue of State law” in Count II or Count III.

The second factor—whether the state claims “substantially predominate[] over the claim or claims over which the district court has jurisdiction”—is also inapplicable. To be sure, the state law claims are a significant part of Orgeron’s lawsuit, but it cannot be said that they “substantially predominate” over his federal claims. In fact, judging by the extent of the briefing on Count I and Count IV

(i.e., the federal claims), it appears that Orgeron’s federal claims have so far been the most significant issues raised in these proceedings.

The third factor—whether “the district court has dismissed all claims over which it has original jurisdiction”—is clearly inapplicable. Neither Count I nor Count IV, the federal claims over which this Court has original jurisdiction, has been dismissed.

The fourth and final factor—whether there are “exceptional circumstances” and “compelling reasons for declining jurisdiction”—does not apply. The commonality of facts and legal questions between the federal and state law claims, as presented in this case, is typical for a supplemental jurisdictional case. There are no “extraordinary circumstances” or “compelling reasons” recommending against supplemental jurisdiction; in fact, to the extent there are extraordinary circumstances or compelling reasons bearing on supplemental jurisdiction, those circumstances and reasons recommend

in favor of supplemental jurisdiction, as discussed below.

e. Even if Discretionary, The Court Should Exercise Supplemental

Jurisdiction in This Case.

Even if one or more of the factors set forth in 28 U.S.C. § 1367(c) applies, so that supplemental jurisdiction is discretionary rather than mandatory, this Court should exercise supplemental jurisdiction over the state law claims in this action.

The Mayor Elect and Orgeron won the 2012 Elections—and voters in the Town are presently being deprived of their right to elect the candidates of their choosing. This Court can remedy that injustice almost immediately, because it has already reviewed the evidence and received full legal briefing on the merits of Counts I, II, and III. If the Court declines to exercise supplemental jurisdiction over Counts II and III, however, another court may be required to start from scratch, taking all the evidence again and receiving the same arguments on the merits of those claims—and the inevitable result will be further delay and expense for the parties, and a postponed remedy for the voters in the Town. In these circumstances, even if supplemental jurisdiction is discretionary rather than mandatory, this Court should accept supplemental jurisdiction and reach the merits of Counts II and III.

IV. CONCLUSION

For the reasons set forth above, this Court has jurisdiction over Counts I, II, III, and IV, and should grant the Plaintiff’s Motion for a Temporary Restraining Order and a Preliminary Injunction.

RESPECTFULLY SUBMITTED this 19th day of July, 2012.

SNELL & WILMER L.L.P.

By

s/ Kory A. Langhofer

Kory A. Langhofer

Michael T. Liburdi

Eric H. Spencer

One Arizona Center

400 East Van Buren Street, Suite 1900

Phoenix, Arizona 85004-2202

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on July 19, 2012, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing.

s/ Lynda Ficarra