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Thomas C. Horne
Attorney General

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

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

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

Plaintiffs,

v.

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

Defendants.


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



DEFENDANTS’ RULE 12(C) MOTION
FOR JUDGMENT ON THE
PLEADINGS AS TO PLAINTIFFS’
NOMINAL-DAMAGES CLAIM




Case 2:14-cv-00024-JWS Document 48 Filed 06/10/14 Page 1 of 10

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Pursuant to Federal Rule of Civil Procedure 12(c), Defendants Chad Roche, Pinal
County Superior Court Clerk; Michael K. J eanes, Maricopa County Superior Court
Clerk; and Deborah Young, Coconino County Superior Court Clerk (collectively,
“Defendants”) hereby move the Court for judgment on the pleadings as to Plaintiffs’
claim for nominal damages. As the face of Plaintiffs’ Amended Complaint
demonstrates, Plaintiffs seek a nominal-damages award against Defendants solely in
their official capacities as the Clerks of the Superior Courts of Pinal County, Maricopa
County, and Coconino County. Am. Compl., ¶¶ 110-112, 144 (Doc. 15). Eleventh
Amendment immunity therefore bars Plaintiffs’ nominal-damages claim against
Defendants. Defendants properly preserved their Eleventh Amendment immunity
defense by including it in their responsive pleading, see Answer to Plaintiffs’ Am.
Compl., at 22, ¶ 2 (Doc. 17), and now seek a final judgment dismissing Plaintiffs’
nominal-damages claim.
MEMORANDUM OF POINTS AND AUTHORITIES
A. Legal Standards Governing Rule 12(c) Motions.
Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on
the pleadings “[a]fter the pleadings are closed—but early enough not to delay trial.”
Fed. R. Civ. P. 12(c). In assessing a Rule 12(c) motion, the Court should accept all
factual allegations in the complaint as true and construe them in the light most favorable
to the nonmoving party. Milne ex rel. Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036,
1042 (9th Cir. 2005). The Court should grant a defendant’s Rule 12(c) motion for
judgment on the pleadings concerning a particular claim when the complaint
demonstrates that there is no material issue of fact underlying the claim and that as a
result, the defendant is entitled to judgment as a matter of law. Id.
B. The Eleventh Amendment Immunizes Defendants from Plaintiffs’ Nominal-
Damages Claim.

Under Ninth Circuit law, Eleventh Amendment immunity bars Plaintiffs’ request
for nominal damages. See Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011,
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1021 & n.4 (9th Cir. 2010) (noting that the government defendant “would [have] be[en]
entitled” to Eleventh Amendment “immunity from the plaintiffs’ claims seeking nominal
damages” if it had not waived that defense); Aholelei v. Dep’t of Pub. Safety, 488 F.3d
1144, 1147 (9th Cir. 2007) (stating that the Eleventh Amendment bars federal-court suits
for money damages against States, state agencies, and state officials acting in their
official capacities).
The Eleventh Amendment shields not only the States themselves from federal-
court actions seeking damages, but also shields certain state instrumentalities that are
characterized as “arms of the state” because they are “so closely tied to the State as to be
the direct means by which the State acts.” Holz v. Nenana City Pub. Sch. Dist., 347 F.3d
1176, 1180, 1186 n.12 (9th Cir. 2003). Congress may abrogate a State’s Eleventh
Amendment immunity from federal-court suit, and a State may waive that immunity.
Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999). Congress did not,
however, intend 42 U.S.C. § 1983 actions like this one to abrogate the States’ Eleventh
Amendment immunity, id. at 1026, and Arizona has not waived its immunity, Ansel
Adams Publ’g Rights Trust v. PRS Media Partners, LLC, 502 Fed. App’x 659, 660 (9th
Cir. 2012); Ronwin v. Shapiro, 657 F.2d 1071, 1073-74 (9th Cir. 1981).
To determine whether an entity such as the Office of Superior Court Clerk is an
arm of the State for Eleventh Amendment immunity purposes, the Ninth Circuit applies a
five-factor balancing test that focuses on how state law treats the entity. Savage v.
Glendale Union High Sch., 343 F.3d 1036, 1040-41 (9th Cir. 2003). The five factors
will be discussed in turn. The first factor is whether the State would be legally obligated
to satisfy a money judgment against the entity from the state treasury. Id. at 1040. For
the most part, Arizona Clerks of Court (“the Clerks”) receive the funds for their budgets
from their respective County Boards of Supervisors, not from the State, see Ariz. Rev.
Stat. §§ 12-283(E), -284(K), and there is no statute requiring the State to satisfy
judgments against the Clerks.
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However, the fact that judgments against the Clerks

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Counties are not entitled to Eleventh Amendment immunity. Holz, 347 F.3d at 1180.
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would not be satisfied from the State’s treasury is not fatal to a determination that the
Clerks are an arm of the State because the remaining four factors weigh in favor of such
a determination. See Alaska Cargo Transp., Inc. v. Alaska R.R. Corp., 5 F.3d 378, 380,
382 (9th Cir. 1993) (finding that the Alaska Railroad Corporation was entitled to
Eleventh Amendment immunity even though it had conceded that it rather than the State
would be liable for any monetary judgment against it because the court concluded that a
monetary judgment against it could impact the state treasury given the State’s “strong
interest in keeping [it] operationally and fiscally sound”); ITSI TV Prods., Inc. v. Agric.
Ass’ns, 3 F.3d 1289, 1293 (9th Cir. 1993) (stating that even if the State would not be
legally obligated to satisfy a monetary judgment against the entity in question,
“consideration of the other factors [that the court had] recognized as relevant to the [arm-
of-the State] inquiry could support the conclusion that [the entity was] an arm of the
state”); Austin v. State Indus. Ins. Sys., 939 F.2d 676, 679 (9th Cir. 1991) (stating that a
determination that a monetary judgment against an entity would necessarily have an
impact on the state treasury would lead to the conclusion that the entity was a state
agency, but that the absence of such an impact would not necessarily preclude Eleventh
Amendment immunity and concluding that consideration of the relevant factors
established that the entity in question was entitled to Eleventh Amendment immunity
even though the court could not say that a monetary judgment against it would inevitably
impact the state treasury).
The second factor is whether the entity performs central governmental functions.
Savage, 343 F.3d at 1040. The relevant inquiries here are whether the State “exercises
centralized governmental control over the entity” and whether state law treats the entity
as addressing statewide rather than municipal or local matters. Beentjes v. Placer Cnty.
Air Pollution Control Dist., 397 F.3d 775, 782 (9th Cir. 2005) (internal quotation marks
omitted). Arizona’s judicial power is “vested in an integrated judicial department” that
includes, among other courts, a supreme court and a superior court. Ariz. Const. art. 6, §
1. Arizona’s Supreme Court, which is an arm of the State for Eleventh Amendment
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immunity purposes, Lucas v. Ariz. Supreme Court Fiduciary Certification Program, 457
Fed. App’x. 689, 690 (9th Cir. 2011), has administrative supervision over all Arizona
courts, Ariz. Const. art. 6, § 3. Although Arizona’s Superior Court has divisions in every
county in the State, Ariz. Const. art. 6, § 10, it is considered a single statewide court,
Ariz. Const. art. 6, § 13; Lerette v. Adams, 925 P.2d 1079, 1080 (Ariz. Ct. App. 1996).
Its Clerks of Court are constitutional officers whom the qualified electors in each county
elect. Ariz. Const. art. 6, § 23. The Clerks’ duties are determined by statute or by
supreme or superior court rule. Id.; see also Ariz. Rev. Stat. § 12-283 (establishing the
Clerks’ duties); Ariz. S. Ct. R. 94 (same); Ariz. S. Ct. R. 92(a)(3) (authorizing the
presiding judge of the superior court in each county to prescribe duties for the Clerks in
addition to those prescribed by law and by the supreme court). The Clerks’ salaries are
established by statute, Ariz. Const. art. 6, § 23; see also Ariz. Rev. Stat. § 12-281
(establishing the Clerks’ salaries), and are reviewed by the Commission on Salaries for
Elective State Officers, Ariz. Rev. Stat. § 41-1903(A).
At one time, the statutes that pertain to the Clerks were located in Ariz. Rev. Stat.
title 11, which deals with the counties, and the Clerks were listed as county officers in
Ariz. Rev. Stat. § 11-401. See 1982 Ariz. Sess. Laws ch. 168, §§ 1, 5 (Appendix
[“App.”] 1). The Arizona Supreme Court concluded that in listing the Clerks as county
officers under that statutory regime, the Legislature did not intend to remove them from
the judiciary’s supervisory control. Roylston v. Pima County, 475 P.2d 233, 234 (Ariz.
1970). The court reasoned that since the judiciary had authority under Ariz. Const. art.
6, § 23 to establish the Clerks’ powers and duties, it necessarily had authority to
supervise the operation of their offices. Id. It stated that the Clerks’ duties were “not
purely ministerial, but [were] rather an integral part of the whole judicial process” and
that “from time immemorial [the Clerks had] been considered . . . officer[s] of the court .
. . endowed with certain judicial authority to aid and promote the judicial process.” Id. at
233 (internal quotation marks omitted). It therefore held that the Clerks were part of the
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state’s judicial branch of government. Id. at 234. Federal courts give substantial
deference to such state-court determinations. Austin, 939 F.2d at 678.
The Legislature subsequently deleted the Clerks from the list of county officers in
Ariz. Rev. Stat. § 11-401; deleted references to the Clerks from other title 11 statutes;
moved the title 11 statutes that pertained exclusively to the Clerks to title 12, which deals
with the courts; and amended Ariz. Rev. Stat. § 12-281 to provide that the Clerks’ bond
of office was subject to the presiding superior court judge’s rather than to the chairman
of the County Board of Supervisors’ approval. 1982 Ariz. Sess. Laws ch. 168 (App. 1);
see also Ariz. Rev. Stat. §§ 12-281 to -289 (current statutes pertaining to the Clerks).
Thus, both the Arizona Legislature and the Arizona Supreme Court consider the Clerks
to be part of the state judicial system.
The fact that the Clerks obtain their funding for the most part from their County
Boards of Supervisors does not undermine the determination that the Clerks are part of
the state judicial system. See Winter v. Coor, 695 P.2d 1094, 1097-98, 1102 (Ariz. 1985)
(holding that town magistrates were part of the State’s judicial system even though the
town paid their salaries); Salerno v. Espinoza, 115 P.3d 626, 628-29 (Ariz. Ct. App.
2005) (determining that a superior court deputy clerk was a state rather than a county
employee and stating that the county’s statutory obligation to provide funds for the
deputy clerk’s salary was irrelevant to making this determination); State v. Pima Cnty.
Adult Prob. Dep’t, 708 P.2d 1337, 1340 (Ariz. Ct. App. 1985) (holding that probation
officers for a county adult probation department were “officers, agents, and employees”
of the state judicial department even though the county subsidized their salaries). Nor
does the fact that the Legislature has delegated some authority concerning the Clerks to
the County Boards of Supervisors undermine the determination that the Clerks are part
of the state judicial system because the delegated authority does not give the County
Boards the type of ultimate authority over the Clerks that the State’s judiciary has.
Roylston, 475 P.2d at 234 (stating that because the judicial department has the authority
to control personnel directly connected with the courts’ operations and the Clerks are
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part of the judicial department, the County Boards have a ministerial duty to approve
personnel appointments that the Clerks make unless the Boards can show that the Clerks
have acted unreasonably, arbitrarily, or capriciously in making the appointments); see
also Salerno, 115 P.3d at 628-29 (stating that the Legislature’s grant of “ministerial
regulation” of judicial employees to the supervisors of various counties did not change
the judicial department’s “ultimate authority” over those employees) (internal quotation
marks omitted); Yamamoto v. Santa Cruz Cnty. Bd. of Supervisors, 606 P.2d 28, 30
(Ariz. Ct. App. 1979) (holding that because a Clerk of Court’s duties were imposed by
law, not by the county, the county could not be liable for the Clerk’s alleged torts under a
respondeat superior theory).
In Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995), the Ninth Circuit
noted that a California appellate court had determined that California’s municipal courts
were part of the statewide court system because they had been established by the state
constitution and statutes—which gave the State rather than the counties authority over
them—and their workings, powers, and makeup involved state rather than municipal or
local affairs. The Ninth Circuit concluded that the municipal courts were arms of the
State for Eleventh Amendment immunity purposes because of the extensive control that
the State exercised over them. Id. This Court should similarly find that the Clerks of
Court are arms of the State because both Arizona’s Supreme Court and Legislature
consider them to be part of Arizona’s integrated judicial system, Arizona’s Constitution
and statutes vest ultimate authority over the Clerks in the Legislature and the judiciary
rather than in the counties, and the Clerks address statewide rather than local matters as
part of Arizona’s statewide judicial system. At the very least, the Court should find that
the second factor weighs heavily in favor of immunity because the Clerks so clearly
perform central state governmental functions. See Beentjes, 397 F.3d at 782.
The third factor is whether the entity may sue or be sued. Savage, 343 F.3d at
1040. There are no provisions that expressly authorize the Clerks to sue or be sued.
Arizona State Code of J udicial Administration § 1-204(D)(1) anticipates that Clerks and
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other court personnel may be sued, however, and requires them to notify the Arizona
Department of Administration’s Risk Management Division if they are served with a
summons and complaint. Arizona State Code of J udicial Administration § 1-204(D)(8)
provides that the Administrative Office of the Court (“AOC”) will serve as liaison
between the Attorney General or outside counsel concerning all litigation involving state
courts and that if the Attorney General cannot provide court personnel with legal
representation for any reason, the AOC will assist them in obtaining representation. The
fact that there are no provisions authorizing the Clerks to sue or be sued as entities
separate from the state superior court and that the Clerks will normally be represented by
the Attorney General’s Office if they are sued, just as the courts and other court
personnel will be, weighs in favor of immunity. See Savage, 343 F.3d at 1049
(commenting that the school district’s defense of the suit without the Attorney General’s
involvement weighed against immunity); Collins v. Corbin, 771 P.2d 1380, 1380, 1382
(Ariz. 1989) (stating that because justices of the peace were local rather than state
officers, the County Attorney rather than the Attorney General had to provide them with
legal representation).
The fourth factor is whether the entity can take property in its own name or only
in the State’s name. Savage, 343 F.3d. at 1040. Because there are no provisions that
authorize the Clerks to take property in the name of their office separately from the
court, this factor weighs in favor of immunity.
The fifth factor is the entity’s corporate status. Id. at 1040. This factor concerns
the extent to which an entity has a status that is independent of the State. Beentjes, 397
F.3d at 784-85. Given that as previously discussed, both Arizona’s Legislature and
Supreme Court consider the Clerks to be part of the state judicial system, this factor
weighs in favor of immunity.
Because the second factor weighs so heavily in favor of immunity and four of the
five factors support immunity, this Court should hold that Defendant Clerks are entitled
to Eleventh Amendment immunity from Plaintiffs’ nominal-damages claim.
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CONCLUSION
The Eleventh Amendment bars Plaintiffs’ claim for nominal damages against
Defendants solely in their official capacities as Clerks of the Superior Courts of Pinal,
Maricopa, and Coconino Counties. Defendants therefore respectfully request that this
Court grant Defendants’ motion for judgment on the pleadings as to Plaintiffs’ nominal-
damages claim.

Dated: J une 10, 2014

Thomas C. Horne
Attorney General

Robert L. Ellman
Solicitor General


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

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

Attorneys for Defendants





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CERTIFICATE OF SERVICE

I hereby certify that I electronically transmitted the attached document to the
Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of
Electronic Filing to the following, if CM/ECF registrants, and mailed a copy of same if
non-registrants, this 10th day of J une, 2014.


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

s/ Maureen Riordan



Case 2:14-cv-00024-JWS Document 48 Filed 06/10/14 Page 10 of 10

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

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

Plaintiffs,

v.

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

Defendants.


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



ORDER GRANTING DEFENDANTS’
MOTION FOR JUDGMENT ON THE
PLEADINGS AS TO PLAINTIFFS’
NOMINAL-DAMAGES CLAIM


Pursuant to the Defendants’ Rule 12(c) motion for judgment on the pleadings as
to Plaintiffs’ claim for nominal damages, and good cause appearing,
IT IS HEREBY ORDERED granting the Defendants’ motion for judgment on
the pleadings. Plaintiffs’ claim for nominal damages, i.e., ¶ 144 of Plaintiffs’ Amended
Complaint (Doc. 15) is barred by the Eleventh Amendment and is hereby dismissed.

Case 2:14-cv-00024-JWS Document 48-1 Filed 06/10/14 Page 1 of 1

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