PLAINTIFFS' RESPONSE TO MOTION TO DISMISS by ula13878

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 1   Jennifer C. Pizer (Pro Hac Vice)
     Tara L. Borelli (Pro Hac Vice)
 2
     LAMBDA LEGAL DEFENSE AND
 3   EDUCATION FUND, INC.
     3325 Wilshire Boulevard, Suite 1300
 4   Los Angeles, California 90010
 5   jpizer@lambdalegal.org
     tborelli@lambdalegal.org
 6   Telephone: 213.382.7600
 7
     Daniel C. Barr (#010149)
 8   Rhonda L. Barnes (#023086)
     James E. Barton II (#023888)
 9   PERKINS COIE BROWN & BAIN P.A.
10   2901 North Central Avenue, Suite 2000
     Phoenix, Arizona 85012-2788
11   DBarr@perkinscoie.com
     RBarnes@perkinscoie.com
12
     JBarton@perkinscoie.com
13   Telephone: 602.351.8000
14   Attorneys for Plaintiffs Tracy Collins, Keith B.
     Humphrey, Joseph R. Diaz, Judith McDaniel,
15
     Beverly Seckinger, Stephen Russell, Deanna
16   Pfleger, Corey Seemiller, Carrie Sperling and
     Leslie Kemp
17
18
                                   UNITED STATES DISTRICT COURT
19
                                            DISTRICT OF ARIZONA
20
21
22   Tracy Collins, et al.,                                 No. CV09-2402-PHX-JWS

23                            Plaintiffs,
                                                            PLAINTIFFS’ RESPONSE TO
24          v.                                              MOTION TO DISMISS
25   Janice K. Brewer, in her official capacity as          Oral Argument Requested
26   Governor of the State of Arizona, et al.,

27                            Defendants.

28

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 1                                                    TABLE OF CONTENTS
 2
                                                                                                                                         Page
 3
 4   TABLE OF CONTENTS .................................................................................................... i
 5   TABLE OF AUTHORITIES.............................................................................................. ii
 6   I. INTRODUCTION ..................................................................................................................... 2
 7   II. ARGUMENT ............................................................................................................................ 3
 8        A. The Standard Of Review .......................................................................................... 3
 9
          B. Section O Creates Two Classes Of State Employees, Denying Plaintiffs Equal
10           Protection Based On Their Sexual Orientation And Sex ......................................... 4
11        C. Sexual Orientation Classifications Are Suspect And Should Be Strictly Scrutinized.
12           At A Minimum, Section O’s Classification Of Plaintiffs Based On Their Sex
             Requires Heightened Scrutiny.................................................................................. 5
13
          D. Even Under Rational Basis Review, Section O’s Class-Based Discrimination
14           Requires A More Searching Examination, And Cannot Satisfy Even That
15           Deferential Review................................................................................................... 9

16        E. Because Section O Burdens Plaintiffs’ Freedom To Form And Sustain
             Intimate Family Relationships, It Is Subject To Heighted Scrutiny, Which
17           It Fails To Meet ...................................................................................................... 13
18
          F. As The State’s Chief Executive Officer, Governor Brewer Is A Proper Party In
19           This Suit To Enjoin Her From Implementing An Unconstitutional Law. ............. 15
20   III. CONCLUSION ........................................................................................................... 17
21   CERTIFICATE OF SERVICE.......................................................................................... 18
22
23
24
25
26
27
28

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 1                                               TABLE OF AUTHORITIES
 2                                                                                                                               Page
 3                                                               CASES
 4
     Alaska Civil Liberties Union v. Alaska
 5   122 P.3d 781 (Alaska 2005) ........................................................................................ passim
 6   al-Kidd v. Ashcroft
     580 F.3d 949 (9th Cir. 2009) .............................................................................................. 17
 7
     Ashcroft v. Iqbal
 8   129 S. Ct. 1937 (2009).......................................................................................................... 3
 9   Baehr v. Lewin
     852 P.2d 44 (Haw. 1993)...................................................................................................... 9
10
     Bailey v. City of Austin
11   972 S.W.2d 180 (Tex. App. 1998) ..................................................................................... 13
12   Balistreri v. Pacifica Police Dept.
     901 F.2d 696 (9th Cir. 1990) ................................................................................................ 3
13
     Bell Atl. Corp. v. Twombly
14   550 U.S. 544 (2007). ............................................................................................................ 3
15   Bradley v. Milliken
     433 F.2d 897 (6th Cir. 1970) .............................................................................................. 15
16
     Califano v. Jobst
17   434 U.S. 47 (1977) ............................................................................................................. 11
18   Carrington v. Rash
     380 U.S. 89 (1965) ............................................................................................................. 11
19
     Edelman v. Jordan
20   415 U.S. 651 (1974) ........................................................................................................... 10
21   Erie County Retirees Assn. v. County of Erie
     220 F.3d 193 (3rd Cir. 2000)................................................................................................ 5
22
     Finstuen v. Crutcher
23   496 F.3d 1139 (10th Cir. 2007) ............................................................................................ 7
24   Frontiero v. Richardson
     411 U.S. 677 (1973) ....................................................................................................... 7, 10
25
     Graham v. Richardson
26   403 U.S. 365 (1971) ........................................................................................................... 10
27   Hernandez-Montiel v. INS
     225 F.3d 1084 (9th Cir. 2000) .............................................................................................. 8
28

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 1   High Tech Gays v. Defense Indus. Sec. Clearance Office
     668 F. Supp. 1361 (N.D. Cal. 1987)..................................................................................... 7
 2
     High Tech Gays v. Defense Indus. Sec. Clearance Office
 3   895 F.2d 563 (9th Cir. 1990) ................................................................................................ 6
 4   In re Golinski
     2009 U.S. App. LEXIS 25778 (9th Cir. 2009)................................................................... 14
 5
     In re Marriage Cases
 6   183 P.3d 384 (Cal. 2008)...................................................................................................... 5
 7   Irizarry v. Board of Education
     251 F.3d 604 (7th Cir. 2001) .............................................................................................. 11
 8
     Karouni v. Gonzales
 9   399 F.3d 1163 (9th Cir. 2005) .............................................................................................. 8
10   Kelo v. City of New London
     545 U.S. 469 (2005) ............................................................................................................. 9
11
     Lawrence v. Texas
12   539 U.S. 558 (2003) .................................................................................................... passim
13   Lazy Y Ranch Ltd. v. Behrens
     546 F.3d 580 (9th Cir. 2008) ................................................................................................ 4
14
     Massachusetts Bd. of Retirement v. Murgia
15   427 U.S. 307 (1976) ............................................................................................................. 6
16   Mathews v. Lucas
     427 U.S. 495 (1976) ............................................................................................................. 9
17
     Memorial Hospital v. Maricopa County
18   415 U.S. 250 (1974) ....................................................................................................... 9, 10
19   Perry v. Proposition 8 Official Proponents
     587 F.3d 947 (9th Cir. 2009) ................................................................................................ 6
20
     Plyler v. Doe
21   457 U.S. 202 (1982) ........................................................................................................... 10
22   Reed v. Reed
     404 U.S. 71 (1971) ........................................................................................................10-11
23
     Regan v. Taxation With Representation
24   461 U.S. 540 (1983) ........................................................................................................... 15
25   Robinson v. Kansas
     295 F.3d 1183 (10th Cir. 2002) .................................................................................... 15, 17
26
     Romer v. Evans
27   517 U.S.620 (1996) ........................................................................................................ 6, 12
28

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 1   Rowland v. Mad River Local School Dist.
     470 U.S. 1009 (1985) ........................................................................................................... 6
 2
     Shapiro v. Thompson
 3   394 U.S. 618 (1969) ............................................................................................... 10, 11, 13
 4   Snetsinger v. Mont. Univ. Sys.
     104 P.3d 445 (Mont. 2004)................................................................................................... 5
 5
     Stanley v. Illinois
 6   405 U.S. 645 (1972). .......................................................................................................... 10
 7   State Employees Bargaining Agent Coalition v. Rowland
     494 F.3d 71 (2d Cir. 2007) ........................................................................................... 15, 17
 8
     Tanner v. Oregon Health Sciences Univ.
 9   971 P.2d 435 (Or. Ct. App. 1998) ........................................................................................ 5
10   United States v. Virginia
     518 U.S. 515 (1996) ............................................................................................................. 9
11
     Watkins v. United States Army
12   875 F.2d 699 (9th Cir. 1989) ............................................................................................ 6, 8
13   Witt v. Dep’t of the Air Force
     527 F.3d 806 (9th Cir. 2008) ........................................................................................ 13, 14
14
     Ysursa v. Pocatello Education Association
15   129 S. Ct. 1093 (2009)........................................................................................................ 15
16                                                              STATUTES
17   1 U.S.C. § 7 .......................................................................................................................... 7
18   A.R.S. § 41-101(A)(1)........................................................................................................ 15
19   A.R.S. § 41-703(1) ............................................................................................................. 15
20   Ariz. Admin. Code § R2-5-101 .......................................................................................... 11
21   Ariz. Const. art. 5, § 4......................................................................................................... 16
22
                                                      OTHER AUTHORITIES
23
     American Psychiatric Association, Psychiatric Treatment and Sexual Orientation (1998)
24    available at http://www.psych.org/Departments/EDU/
      Library/APAOfficialDocumentsandRelated/PositionStatements/200001.aspx............... 8
25
     American Psychological Association, Just the Facts About Sexual Orientation & Youth:
26   A Primer for Principals, Educators and School Personnel (2008)
       available at http://www.apa.org/pi/lgbt/resources/just-the-facts.pdf............................... 8
27
     Human Rights Campaign, Statewide Marriage Prohibitions, 2009
28     available at http://www.hrc.org/documents/marriageprohibitions2009.pdf.................... 8

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 1                                   I.      INTRODUCTION
 2          In their Motion to Dismiss (“Motion”), Defendants Governor Janice K. Brewer,
 3   Interim Director David Raber, and Director of Human Resources Kathy Peckardt
 4   (collectively, “Defendants”) fundamentally mischaracterize Plaintiffs’ suit and fail to
 5   carry their burden. Defendants misrepresent Plaintiffs’ constitutional claims as a request
 6   that the Court sit as a “superlegislature” and evaluate Section O based on “policy”
 7   arguments. (Motion, 2:16, 6:2.) Plaintiffs’ claims are a legal challenge to a law that
 8   Defendants cannot defend for what it is—a deliberate decision to provide lower
 9   compensation to lesbian and gay State employees than to their heterosexual co-workers
10   simply because of the employees’ sexual orientation and sex. Defendants try to paint
11   family health benefits as an “optional subsidy” the State may offer or withhold from its
12   workers willy-nilly. But this case is not about whether the State is free to eliminate
13   payment for certain benefits for all its workers, but whether it may do so for only some of
14   them, in a way that discriminates in violation of the federal Constitution.
15          Offering no answer to Plaintiffs’ claims of sexual orientation and sex
16   discrimination, Defendants argue instead that Section O merely distinguishes between
17   married and unmarried employees. But as both federal and state courts have recognized,
18   and logic underscores, a system for providing valuable employee benefits that offers one
19   group of unmarried employees (heterosexuals) a way to qualify using a particular measure
20   of family commitment (marriage) and denies access entirely for the other group of
21   unmarried employees (gay people) by denying them any way to show adequate family
22   commitment, cannot be said to treat all unmarried employees equally. Rather such a
23   system favors one group and excludes the other. This distinction between these groups,
24   drawn along invidious lines of sexual orientation and sex, should be subjected to at least
25   heightened scrutiny. But here, the State’s discrimination against its lesbian and gay
26   employees cannot survive even rational basis review because it fails to advance any
27   legitimate reason for the government to treat one group of people worse than the other.
28

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 1          Defendants likewise offer no answer to Plaintiffs’ charge that Section O—which
 2   will impose extreme financial, emotional and health-related hardships on Plaintiffs—
 3   wrongfully burdens the due process right recognized in Lawrence v. Texas, 539 U.S. 558
 4   (2003), of every American adult freely to form and maintain an intimate family
 5   relationship with a same-sex partner, as with a different-sex partner. Boldly defying the
 6   principles emphasized in Lawrence, Section O selects benefits criteria that dock the
 7   compensation of lesbian and gay State workers who are exercising their constitutional
 8   liberty by building family life with a same-sex life partner. At the same time, the State
 9   provides a means by which its workers who are pursuing the same dreams of family life,
10   but with a different-sex life partner, can obtain greater compensation for the same work.
11   Just as the Constitution would not permit states to have two different pay scales for gay
12   and heterosexual employees, likewise they may not offer or withhold family health
13   insurance using criteria that favors or penalizes their employees according to those
14   employees’ sexual orientation and sex.
15                                        II.    ARGUMENT
16          A.       The Standard Of Review.
17          The Court’s review of the Amended Complaint must take all allegations of material
18   fact as true—“even if doubtful in fact”—and construe them in the light most favorable to
19   Plaintiffs. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A dismissal for failure
20   to state a claim must either be premised on “the lack of a cognizable legal theory or the
21   absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica
22   Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Plaintiffs’ claims must meet a facial
23   plausibility standard, which “is not akin to a ‘probability requirement.’” Ashcroft v. Iqbal,
24   129 S. Ct. 1937, 1949 (2009), quoting Twombly, 550 U.S. at 556. A complaint meets this
25   standard if it allows a reasonable inference that the defendants are liable (Iqbal, 129 S. Ct.
26   at 1949), or—as is appropriate in a suit such as this for prospective declaratory and
27   injunctive relief—that defendants will be liable if they enforce an unconstitutional law.1
28          1
                Counsel for the parties have agreed informally to cooperate in seeking a merits

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 1   Plaintiffs have pleaded their claims in ample detail to show how Defendants have violated
 2   federal constitutional standards and, accordingly, why Defendants’ motion fails.
 3
            B.     Section O Creates Two Classes Of State Employees, Denying Plaintiffs
 4                 Equal Protection Based On Their Sexual Orientation And Sex.

 5          Defendants are silent regarding Section O’s classification of Plaintiffs for unequal
 6   treatment based on sexual orientation and sex, perhaps because, as described further
 7   below, such classifications should receive at least heightened scrutiny under federal law.
 8   Defendants instead rely entirely on the argument that Section O classifies Plaintiffs for
 9   differential treatment based only on marital status. But this mischaracterizes Section O’s
10   purpose and actual operation. The Court’s proper identification of the classification
11   created by Section O is a critical “first step” in the analysis. See Lazy Y Ranch Ltd. v.
12   Behrens, 546 F.3d 580, 589 (9th Cir. 2008). Section O deliberately classifies state
13   employees into two groups—heterosexual employees who are offered a way to qualify for
14   family health insurance (by marrying), and lesbian and gay State employees who are
15   deprived of any way to qualify for those benefits. Section O thus imposes a harsh and
16   explicit disability on lesbian and gay employees that is not equally imposed on their
17   heterosexual co-workers. By intention, design and result, Section O treats employees
18   differently based on their sexual orientation and thus is not a neutral policy that treats all
19   unmarried employees equally. Instead, by strictly barring unmarried lesbians and gay
20   men from obtaining family benefits, while providing a path of access for unmarried
21   heterosexuals, Section O expressly creates two classes of unmarried State employees and
22   discriminates against the unmarried gay ones. Every state appellate court to examine the
23   issue since 1998 has reached the same conclusion. See Alaska Civil Liberties Union v.
24   Alaska, 122 P.3d 781, 788 (Alaska 2005) (holding that “the proper comparison is between
25
     determination in this case before Defendants’ intended enforcement of Section O as of
26   October 1, 2010. Plaintiffs accordingly have streamlined the case through an Amended
     Complaint (“Compl.”) that seeks only declaratory and injunctive relief. Plaintiffs reserve
27   the right to seek leave to reinstate their damages claims if Plaintiffs subsequently discover
     that a merits determination may not be accomplished before October 1, 2010, which
28   would lead to Plaintiffs incurring damages.

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 1   same-sex couples and opposite-sex couples” because a restriction requiring marriage does
 2   not “treat same-sex and opposite-sex couples the same,” where heterosexuals “have the
 3   opportunity to obtain these benefits” and gay people do not); Snetsinger v. Mont. Univ.
 4   Sys., 104 P.3d 445, 452 (Mont. 2004) (holding that lower court erred in using marital
 5   status comparison and comparing employees with a same-sex partner to those with a
 6   different-sex partner instead); and Tanner, 971 P.2d at 525.
 7          The restriction of partner benefits to married employees “‘cannot be understood as
 8   having merely a disparate impact on gay persons, but instead properly must be viewed as
 9   directly classifying and prescribing distinct treatment on the basis of sexual orientation.’”
10   In the matter of Brad Levenson, 560 F.3d 1145, 1147 (9th Cir. 2009) (Reinhardt, J.,
11   decision following EDR proceeding) (quoting In re Marriage Cases, 183 P.3d 384, 440
12   (Cal. 2008)). “‘A statute that limits [benefits] to a union of persons of opposite sexes,
13   thereby placing [those benefits] outside the reach of couples of the same sex,
14   unquestionably imposes different treatment on the basis of sexual orientation.’” Id. at
15   1147 (quoting Marriage Cases, 183 P.3d at 440 (brackets in the original)). Defendants
16   claim that Section O treats all unmarried employees equally, but this “reasoning misses
17   the point.” Tanner v. Oregon Health Sciences Univ., 971 P.2d 435, 447-48 (Or. Ct. App.
18   1998). A law does not provide equal treatment by making a benefit “available on terms
19   that, for gay and lesbian couples, are a legal impossibility.” Id.2
20          C.     Sexual Orientation Classifications Are Suspect And Should Be Strictly
                   Scrutinized. At A Minimum, Section O’s Classification Of Plaintiffs
21                 Based On Their Sex Requires Heightened Scrutiny.
22          Defendants do not dispute that a law classifying Plaintiffs for adverse treatment
23   based on their sexual orientation and sex must be supported by an adequately tailored
24   compelling, or at least important, governmental interest, yet they fail to offer anything
25   other than purportedly rational reasons for enforcing the law (Motion, 8:4 - 10:10). A law
26   that discriminates based on sexual orientation must be strictly scrutinized because lesbians
27          2
             Cf. Erie County Retirees Assn. v. County of Erie, 220 F.3d 193, 215 (3rd Cir.
     2000) (employers cannot discriminate against employees under Age Discrimination in
28   Employment Act based on proxies for age, such as Medicare eligibility).

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 1   and gay men have been “saddled with such disabilities, or subjected to such a history of
 2   purposeful unequal treatment, or relegated to such a position of political powerlessness as
 3   to command extraordinary protection from the majoritarian political process.”
 4   Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976) (internal quotation
 5   marks omitted).3
 6          Lesbians and gay men indisputably have experienced a history of purposeful
 7   unequal treatment, based on irrational prejudice about a personal characteristic that does
 8   not indicate their capabilities. See Murgia, 427 U.S. at 313. As the Ninth Circuit has
 9   recognized for at least two decades, “homosexuals have suffered a history of
10   discrimination.” High Tech Gays, 895 F.2d at 573. See also Perry v. Proposition 8
11   Official Proponents, 587 F.3d 947, 954 (9th Cir. 2009) (observing that defendants would
12   be “hard pressed to deny that gays and lesbians have experienced discrimination in the
13   past in light of the Ninth Circuit’s ruling in High Tech Gays”); Watkins v. United States
14   Army, 875 F.2d 699, 724 (9th Cir. 1989) (Norris, J., concurring) (“Discrimination against
15   homosexuals has been pervasive in both the public and private sectors.”); Rowland v. Mad
16   River Local School Dist., 470 U.S. 1009, 1014 (1985) (Brennan, J., and Marshall, J.,
17   dissenting from denial of certiorari) (“homosexuals have historically been the object of
18   pernicious and sustained hostility”).
19          Sexual orientation does not bear upon on one’s ability to contribute to society as a
20   productive employee, as underscored by Arizona’s Executive Order No. 2003-22
21   prohibiting discrimination against lesbian and gay State employees, and presidential
22   Executive Order No. 13087. This long has been recognized by the federal courts. See
23   Watkins, 875 F.2d at 725 (Norris, J., concurring) (“Sexual orientation plainly has no
24          3
               The Supreme Court has not yet determined the appropriate level of scrutiny for
     sexual orientation-based classifications. See Romer v. Evans, 517 U.S. 620, 633 (1996)
25   (law failed even rational basis, making it unnecessary to decide whether higher level of
     review applies). High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563,
26   571 (9th Cir. 1990), previously held that classifying lesbians and gay men for adverse
     treatment is not subject to heightened scrutiny “because homosexual conduct can … be
27   criminalized.” Because the authority for that ruling was repudiated in Lawrence, 539 U.S.
     at 578 (“Bowers [v. Hardwick, 478 U.S. 186 (1986)] was not correct when it was decided,
28   and it is not correct today”), High Tech Gays can no longer be considered sound.

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 1   relevance to a person’s ability to perform or contribute to society.”) (internal quotation
 2   marks omitted); High Tech Gays v. Defense Indus. Sec. Clearance Office, 668 F. Supp.
 3   1361, 1374 (N.D. Cal. 1987) (“The American Psychological Association has declared that
 4   ‘homosexuality per se implies no impairment in judgment, stability, reliability, or general
 5   social or vocational capabilities.’”).
 6          Section O’s targeting of lesbians and gay men by stripping Plaintiffs’ partner health
 7   benefits is a stark illustration of the political vulnerability of lesbians and gay men. Such
 8   vulnerability is sadly commonplace for gay people in America, as recent years have seen
 9   both legislative and ballot measure targeting of this minority group for wrongful
10   elimination of basic rights and family protections that heterosexuals take for granted. See,
11   e.g., Romer, 517 U.S. at 635-36 (striking down state referendum designed to prevent any
12   level of Colorado government from protecting gay people against discrimination);
13   Finstuen v. Crutcher, 496 F.3d 1139, 1156 (10th Cir. 2007) (invalidating Oklahoma
14   statute that aimed to nullify adoptions of children by lesbian and gay couples). Arizona is
15   one of 41 states nationally that expressly deny same-sex couples the freedom to marry
16   through state constitutional amendment or statute (Human Rights Campaign, Statewide
17   Marriage Prohibitions, 2009 (available at http://www.hrc.org/documents/marriage_
18   prohibitions_2009.pdf), and the federal government refuses to respect the fact that many
19   gay people are validly married under state or another country’s law, 1 U.S.C. § 7.
20   Lesbians and gay men are not protected against discrimination in public accommodations
21   or private employment in Arizona, or under federal statute, and by many of these
22   measures suffer greater legal disadvantages than did women, for example, when sex-based
23   classifications were held to be quasi-suspect. At that time, Title VII and the Equal Pay
24   Act forbade sex discrimination, Congress already had approved and submitted to the
25   states for ratification a proposed federal Equal Rights Amendment to the U.S.
26   Constitution, and, the U.S. Supreme Court had observed that “the position of women in
27   America ha[d] improved markedly in recent decades.” Frontiero v. Richardson, 411 U.S.
28   677, 685, 687-88 (1973). Moreover, as women and racial minorities have achieved

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 1   greater protection against discrimination through the political process, the scrutiny of sex-
 2   and race-based classifications has become no less searching.
 3          Although the federal equal protection doctrine has never held immutability of a
 4   personal trait to be a prerequisite for determining that a classification based on that trait
 5   warrants strict scrutiny,4 the Ninth Circuit already has found, and re-affirmed, that sexual
 6   orientation is immutable—at least as that term is used in equal protection cases—an
 7   understanding that conforms with a consensus among major professional social and
 8   behavioral health organizations. See Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th
 9   Cir. 2000) (“Sexual orientation and sexual identity are immutable; they are so
10   fundamental to one’s identity that a person should not be required to abandon them.”);
11   Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005) (same); Watkins, 875 F.2d at
12   725 (Norris, J., concurring) (“it seems appropriate to ask whether heterosexuals feel
13   capable of changing their sexual orientation”) (emphasis in original).5
14          At a minimum, Section O should be subjected to heightened scrutiny because it
15   discriminates on its face against Plaintiffs based on each one’s sex in relation to the sex of
16   his or her life partner. Section O’s restriction of family benefits to employees in different-
17   sex relationships who may marry means, for example, that if Plaintiff Tracy Collins were
18   a man, she could secure health insurance for her beloved life partner, Diana Forrest, by
19   marrying Diana. Simply because Tracy is a woman, however, she is denied that
20   opportunity. See Levenson, 560 F.3d at 1147 (holding that denial of health benefits to
21          4
             Laws that classify based on religion, alienage and legitimacy all are subject to
     some form of heightened scrutiny, despite the fact that religious people may convert,
22   undocumented people may naturalize, and illegitimate children may be adopted. See also
     Watkins, 875 F.2d at 725 (Norris, J., concurring) (the “Supreme Court has never held that
23   only classes with immutable traits can be deemed suspect”).
24          5
              See also American Psychological Association, Just the Facts About Sexual
     Orientation & Youth: A Primer for Principals, Educators and School Personnel (2008)
25   (the notion that lesbians’ and gay men’s sexual orientation can be changed or cured “has
     been rejected by all the major health and mental health professions”) (available at
26   http://www.apa.org/pi/lgbt/resources/just-the-facts.pdf); American Psychiatric
     Association, Psychiatric Treatment and Sexual Orientation (1998) (noting that the
27   significant risks of “reparative therapy” are “great” and “include depression, anxiety, and
     self-destructive behavior”) (available at http://www.psych.org/Departments/EDU/
28   Library/APAOfficialDocumentsandRelated/PositionStatements/200001.aspx).

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 1   man in same-sex relationship, where he could qualify for them if he were a woman and
 2   could marry his partner, is “sex-based”); Baehr v. Lewin, 852 P.2d 44, 67-68 (Haw. 1993).
 3   Classifications based on sex require heightened scrutiny, United States v. Virginia, 518
 4   U.S. 515, 524 (1996), and Defendants have not even attempted to offer a single state
 5   interest of even arguably sufficient importance or close tailoring to satisfy this standard.
 6          D.     Even Under Rational Basis Review, Section O’s Class-Based
                   Discrimination Requires A More Searching Examination, And Cannot
 7                 Satisfy Even That Deferential Review.
 8          Ignoring the classifications created by Section O, Defendants claim the law creates
 9   merely an economic or regulatory distinction and argue that this Court should apply only a
10   deferential review. (Motion, 7:9-10.) But rational basis analysis is not “toothless,” and
11   classifications that target a disfavored minority group require a more searching review.
12   Mathews v. Lucas, 427 U.S. 495, 510 (1976); Lawrence, 539 U.S. at 580 (O’Connor, J.,
13   concurring) (“When a law exhibits such a desire to harm a politically unpopular group, we
14   have applied a more searching form of rational basis review to strike down such laws
15   under the Equal Protection Clause.”); Kelo v. City of New London, 545 U.S. 469, 490-91
16   (2005) (Kennedy, J., concurring) (distinguishing between the rational basis test applied to
17   “economic regulation” and the test applied to classifications discriminating against a
18   particular group of people). Defendants do not dispute that Section O intentionally
19   eliminates the possibility of health benefits for lesbian and gay State employees with a
20   same-sex life partner, instead offering reasons why the legislature may have wished to
21   accomplish that. Under the meaningful rational basis review appropriate here, the Court
22   must consider whether this desire to compensate lesbian and gay State employees
23   unequally for working equally is a legitimate goal. The unsound nature of Defendants’
24   attempted justifications, discussed below, demonstrates that it is not.
25          Defendants claim that cost-savings justify Section’s O differential treatment of
26   lesbian and gay State employees (8:4-8). But federal courts consistently have rejected the
27   idea that a state may “protect the public fisc by drawing an invidious distinction between
28   classes of its citizens.” Memorial Hospital v. Maricopa County, 415 U.S. 250, 263

                                                  -9-
      Case 2:09-cv-02402-JWS Document 23            Filed 02/11/10 Page 14 of 22



 1   (1974). See also Shapiro v. Thompson, 394 U.S. 618, 633 (1969) (holding that a state
 2   may not safeguard the fiscal integrity of its programs by drawing discriminatory lines
 3   between groups of its citizens), overruled in part on other grounds by Edelman v. Jordan,
 4   415 U.S. 651 (1974); Graham v. Richardson, 403 U.S. 365, 374-75 (1971) (same).
 5   Accordingly, Defendants must “do more than show” that denying same-sex partner health
 6   benefits “saves money,” Shapiro, 394 U.S. at 633, because their argument that the savings
 7   the State accrues justifies its discrimination against lesbian and gay employees does
 8   nothing “more than justify [their] classification with a concise expression of an intention
 9   to discriminate,” Plyler v. Doe, 457 U.S. 202, 227 (1982). In other words, this purported
10   state interest is inadequate on its face.6
11          Nor does purported administrative convenience justify singling out lesbian and gay
12   employees for disfavored treatment. While “efficacious administration of governmental
13   programs is not without some importance, ‘the Constitution recognizes higher values than
14   speed and efficiency.’” Frontiero, 411 U.S. at 690 (holding that administrative
15   convenience could not justify requirement that only female service members must show
16   dependency of a spouse to receive benefits, and not male service members), quoting
17   Stanley v. Illinois, 405 U.S. 645, 656 (1972). In fact, the Bill of Rights was “designed to
18   protect the fragile values of a vulnerable citizenry from the overbearing concern for
19   efficiency and efficacy that may characterize praiseworthy government officials.”
20   Stanley, 405 U.S. at 656. See also Reed v. Reed, 404 U.S. 71, 76-77 (1971) (reducing
21   probate courts’ workload through mandatory preference for men as administrators of
22          6
              The cost-saving rationale also is implausible given that any savings would be
     negligible, if not “illusory.” See Memorial Hospital, 415 U.S. at 265 (recognizing that
23   delayed medical care can cause a patient needlessly to deteriorate, requiring more
     expensive care in the future and possibly causing disability, which can strain a state’s
24   social services). Defendants misleadingly claim that Plaintiffs “admit” that eliminating
     partner health benefits for lesbian and gay employees will save the State “millions of
25   dollars.” (Motion, 5:3-4.) In fact, however, the Amended Complaint clearly avers that
     same-sex couples are a “small fraction” of the approximately 800 unmarried employees
26   whose benefits reportedly cumulatively cost $3.3 million (or 0.033% of the total state
     budget), meaning that the cost of family benefits for lesbian and gay State employees is
27   only a small fraction of that amount. And Plaintiffs certainly have not conceded that
     protecting the public fisc is “a legitimate goal” that would permit the State to discriminate
28   against one group of employees, as Defendants imply. (Motion, 5:6-7.)

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      Case 2:09-cv-02402-JWS Document 23            Filed 02/11/10 Page 15 of 22



 1   estates over equally qualified women is not “consistent with the command of the Equal
 2   Protection Clause”); Shapiro, 394 U.S. at 636 (“The argument that the waiting period [for
 3   welfare benefits] serves as an administratively efficient rule of thumb for determining
 4   residency similarly will not withstand scrutiny.”).
 5          This is so even where “making a less-clearly-defined (compared to spouses)
 6   category of persons eligible for employment benefits would create administrative
 7   burdens.” Alaska, 122 P.3d at 791. See also Carrington v. Rash, 380 U.S. 89, 96 (1965)
 8   (concluding that interest in ensuring residency to qualify to vote did not excuse the state
 9   from administrative burden of verifying residency, even where “special problems may be
10   involved” in making such determinations for servicemen).
11          Defendants’ authorities do not support a different result. Califano v. Jobst, 434
12   U.S. 47 (1977), addressing allocation of Social Security funds, speaks about the power of
13   Congress to assume that children who are adults, married, non-disabled or non-students
14   may as a group be less likely to need support, but expressly qualifies this ruling with the
15   caveat that “a general rule may not define the benefited class by reference to a distinction
16   which irrationally differentiates between identically situated persons.” Id. at 53.
17          Defendants’ reference to Irizarry v. Board of Education, 251 F.3d 604 (7th Cir.
18   2001), is still more puzzling. Irizarry involved a challenge to a public school system’s
19   health benefits program that offered same-sex partner coverage to its gay employees
20   because they could not marry. Id. at 606. The court rejected plaintiff’s claim that
21   unmarried heterosexual employees should be entitled to the same domestic partner
22   benefits—a claim that no plaintiff raises here—and held that the school board had valid
23   grounds for declining to inquire into the nature of the domestic relationships of
24   heterosexual employees “who can if they wish marry.” Id. at 610. In fact, the court found
25   the school board’s policy, requiring employees with a same-sex life partner to satisfy
26   eligibility criteria similar to those in Ariz. Admin. Code § R2-5-101, satisfied rational
27   basis review. Id. at 606, 610-11.
28          Finally, Defendants offer several marriage-related, purported state interests

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      Case 2:09-cv-02402-JWS Document 23            Filed 02/11/10 Page 16 of 22



 1   ostensibly furthered by Section O: (i) the funds are “better spent” on spouses; (ii) the
 2   benefit might be most valuable to married persons who supposedly are more likely to have
 3   dependent children; and (iii) Section O furthers the government’s interest in “favoring
 4   marriage.” (Motion, 10:4-10.) The first ground is a restatement of the intent to
 5   discriminate, not a valid state interest. See Romer, 517 U.S. at 633. Professing a belief
 6   that funds are “better spent” on heterosexuals rather than gay people expresses an overt
 7   desire to privilege one class over another, and offers the sort of moral judgment that
 8   offends equal protection guarantees. Id. at 634.
 9          To the extent that Defendants’ second proffered interest professes to protect
10   children—who do better when both they and their parents have access to health care, and
11   are spared the anxiety and financial hardship that untreated illness creates—such a
12   purpose is so “discontinuous” with Section O’s stripping of any way for lesbian and gay
13   State employees to qualify for insurance for their partners and their partners’ children as
14   to fail any form of review. See id. at 632. Heterosexual employees’ children are not
15   benefited in any way by the elimination of health insurance for lesbian and gay
16   employees’ children. Nor are family health benefits limited to those heterosexuals who
17   have or intend to have children. Section O cannot be said to promote the welfare of
18   children because it accomplishes the opposite, by arbitrarily stripping benefits from one
19   group of employees with children who are no less worthy of insurance.
20          Finally, Defendants’ purported interest in “favoring” marriage cannot justify
21   Section O. Because marriage is limited to heterosexual couples under Arizona law, a wish
22   to “favor” that group of employees simply restates an intent to privilege those employees
23   along invidious lines. If Defendants intend to suggest that Section O promotes marriage,
24   they offer no explanation of how Section O’s elimination of a way for lesbian and gay
25   couples to obtain insurance is even rationally related to that goal. There is no indication
26   that denying gay employees family benefits will induce heterosexuals to marry each other.
27   See Alaska, 122 P.3d at 793. Nor is there any indication that Plaintiffs, once denied
28   benefits, will “seek opposite-sex partners with an intention of marrying them,” and any

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      Case 2:09-cv-02402-JWS Document 23            Filed 02/11/10 Page 17 of 22



 1   such sham marriages “would not seem to advance any valid reasons for promoting
 2   marriage.” Id.7 Defendants have failed to offer even a single permissible rational basis
 3   for Section O, and thus the law thus fails any level of constitutional review.
 4          E.     Because Section O Burdens Plaintiffs’ Freedom To Form And Sustain
                   Intimate Family Relationships, It Is Subject To Heighted Scrutiny,
 5                 Which It Fails To Meet.
 6          Contrary to Defendants’ suggestion, Plaintiffs’ substantive due process claim does
 7   not assert that there is a fundamental right to health care or health insurance benefits, but
 8   rather challenges the burden their government employer is imposing upon each Plaintiff’s
 9   liberty interest in engaging freely in “private intimate conduct and [a] family relationship”
10   with a same-sex life partner, as addressed in Lawrence. (Compl. 42:4-5). See Lawrence,
11   539 U.S. at 578 (finding that the federal constitution protects the choice to have an
12   intimate relationship with a same-sex partner “without intervention of the government”).
13          The Ninth Circuit has determined the standard of review that applies “when the
14   government attempts to intrude upon the personal and private lives of homosexuals, in a
15   manner that implicates the rights identified in Lawrence,” though remarkably, Defendants
16   do not even cite this authority. Witt v. Dep’t of the Air Force, 527 F.3d 806, 819 (9th Cir.
17   2008). Such an intrusion is not appropriately examined under the rational basis review
18   Defendants would have the Court apply. Id. at 816 (“We cannot reconcile what the
19   Supreme Court did in Lawrence with the minimal protections afforded by traditional
20   rational basis review.”). Rather, “the government must advance an important
21   governmental interest, the intrusion must significantly further that interest, and the
22   intrusion must be necessary to further that interest.” Id. at 819. Abstaining from any
23   argument that Section O meets such heightened review, Defendants simply assert that
24
            7
              Bailey v. City of Austin, 972 S.W.2d 180 (Tex. App. 1998) casts no light on this
25   issue. Defendants cite Bailey as upholding a revocation of partner benefits because it
     “saved on the costs of administering a benefits package” (Motion, 10:21-23). Yet Bailey
26   actually reaffirmed Shapiro’s ruling that a state may not increase cost savings by drawing
     invidious lines between classes of citizens (id. at 188), and upheld the revocation based on
27   a purported interest in favoring marriage. But the decision failed to examine how
     excluding same-sex couples from partner health benefits could be seen to advance such an
28   interest (id. at 188-89), and conceded it was exercising only a very “limited review.”

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      Case 2:09-cv-02402-JWS Document 23            Filed 02/11/10 Page 18 of 22



 1   Section O does not “affect any relationship” or “place any burdens upon” Plaintiffs.
 2   (Compl. 12:13-15). Taking Plaintiffs’ well-pleaded facts as true, the Amended Complaint
 3   provides copious details establishing how Section O will impose significant hardship,
 4   distress and burden on Plaintiffs’ intimate relationships. (See, e.g., Compl., 3:8-22, 13:1 -
 5   30:23.) Defendants seem to argue that Lawrence’s protections apply only to criminal
 6   punishment or the assessment of a financial penalty. (Motion, 12:18-19.) But, Witt made
 7   clear that adverse employment actions—such as Section O’s elimination of valuable
 8   health benefits—constitute sufficient injury to give rise to an actionable due process
 9   claim. Witt, 527 F.3d at 812 (concluding that suspension from work resulting in loss of
10   pay and points toward promotion and retirement is sufficient grounds for Lawrence-based
11   claim). Defendants suggest that Section O does not burden Plaintiffs’ relationships
12   because Plaintiffs have succeeded in forming those committed, long-term relationships
13   despite the lack of family benefits in the past. But Defendants have cited no authority,
14   and Plaintiffs are aware of none, that would suggest a relationship is only burdened when
15   it is prevented from forming or fails to last long-term, and by that measure even the
16   plaintiffs in Lawrence could not have stated a substantive due process claim.
17          Defendants attempt to cast partner health benefits for lesbian and gay employees as
18   a “subsidized” and “optional” benefit. (Motion, 12:19.) But the “availability of health
19   insurance for oneself and one’s family is a valuable benefit of employment,” In re
20   Golinski, 2009 U.S. App. LEXIS 25778, *1 (9th Cir. 2009) (Kozinski, C.J., decision
21   following EDR proceeding), provided in exchange for one’s work as opposed to being a
22   free subsidy and, while it may be optional for an employer to provide such benefits to any
23   employees, that does not mean the state has the “option” to adopt criteria that
24   discriminatorily deny some employees any ability to qualify for those benefits. See
25   Alaska, 122 P.3d at 783 (denying same-sex partner benefits requires court to determine
26   whether government may “pay public employees who are in committed domestic
27   relationships with same-sex partners less in terms of employee benefits than their co-
28

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      Case 2:09-cv-02402-JWS Document 23             Filed 02/11/10 Page 19 of 22



 1   workers who are married”).8
 2          F.     As The State’s Chief Executive Officer, Governor Brewer Is A Proper
                   Party In This Suit To Enjoin Her From Implementing An
 3                 Unconstitutional Law.
 4          Defendants correctly state that Defendant Brewer’s act of signing Section O into
 5   law is entitled to immunity. (Motion at 14:11-12.) Plaintiffs do not base their claims
 6   against Defendant Brewer on her having signed Section O into law, but on her
 7   implementation of the law as required by statute. See A.R.S. § 41-101(A)(1); and A.R.S.
 8   § 41-703(1) (the Department of Administration and Personnel Board Director is “directly
 9   responsible to the governor for the direction, control and operation of the department”).
10   The governor is the proper party to a lawsuit challenging the constitutionality of a statute
11   that the governor is tasked to implement. Robinson v. Kansas, 295 F.3d 1183, 1192 n.13
12   (10th Cir. 2002) (holding that “the governor and the named officials of the Board of
13   Education are charged with enforcing [the state’s school financing scheme]” and are
14   proper parties to a lawsuit challenging the statute’s constitutionality); Bradley v. Milliken,
15   433 F.2d 897, 905 (6th Cir. 1970) (holding that the governor was the proper party when
16   challenging an act of the legislature that suspended a school board’s integration plan).
17          If the Governor’s statutory role in implementing Section O does not establish her
18   liability as a matter of law, as Plaintiffs believe it does, factual disputes about the
19   Governor’s conduct relative to her statutory duties cannot be resolved against Plaintiffs on
20   this motion to dismiss. In State Employees Bargaining Agent Coalition v. Rowland, the
21   Second Circuit considered a case that, like the one before this Court, concerned employee
22
            8
              Defendants’ cited authority supports this conclusion. Regan v. Taxation With
23   Representation, 461 U.S. 540 (1983), explains the principle that the government need not
     subsidize even a fundamental right: “although government may not place obstacles in the
24   path of a [person’s] exercise of … freedom of [speech], it need not remove those not of its
     own creation.” Id. at 549-50 (internal quotation marks omitted). Section O is
25   unquestionably a barrier of the government’s creation. Unlike Regan and Ysursa v.
     Pocatello Education Association, 129 S. Ct. 1093 (2009), which involved a subsidy of
26   payroll deductions for a third party union, the health benefits here are compensation for
     work performed. The government does not “subsidize” an employee in an optional
27   manner by providing family benefits as a component of the employee’s compensation and
     the government cannot adopt a scheme that uses constitutionally impermissible grounds to
28   deny some employees the ability provided others to get that form of compensation.

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      Case 2:09-cv-02402-JWS Document 23             Filed 02/11/10 Page 20 of 22



 1   benefits and a budget crisis. 494 F.3d 71 (2d Cir. 2007). In that case, the plaintiffs
 2   claimed that they had been terminated from their state employment as retaliation for being
 3   members of a union and “sought reinstatement to their previous positions, or to other
 4   positions in the state workforce, and an array of other forms of relief including a
 5   prohibition against retaliating against plaintiffs.” Id. at 76. The Governor contended that
 6   approximately 3,000 unionized employees had been terminated in response to the state’s
 7   budget crisis. Id. at 78. Like Defendant Brewer, Governor Rowland moved for dismissal
 8   on the grounds that his actions were legislative as they were a part of the budgeting
 9   process. Id. at 76. The Second Circuit, however, upheld the district court’s holding that
10   “discovery [wa]s necessary to assess whether legislative immunity may bar any of
11   plaintiffs’ claims for reinstatement to their previous positions.” Id. Where there remains
12   a factual question with regard to the governor’s responsibility in implementing a
13   challenged statute, the matter cannot be resolved through a motion to dismiss.
14          Governor Brewer acts as the chief executive officer of the State, Ariz. Const. art. 5,
15   § 4, and thus it is her responsibility to implement the law challenged by this action.
16   Plaintiffs have specifically alleged that, consistent with her constitutional and statutory
17   duties, Defendant Brewer is “charged to supervise the official conduct of all executive and
18   ministerial officers, and to ensure that all offices are filled and all duties performed.”
19   (Compl. 6:10-12.) Plaintiffs have also asserted that “Defendant Brewer has the duty and
20   authority to ensure that the Department implements Section O, and through her own
21   individual actions, has acted and, if not enjoined, will continue to act personally to violate
22   Plaintiffs’ right to equal protection by implementing Section O to strip Plaintiffs
23   discriminatorily of access to family coverage for committed same-sex life partner, thereby
24   proximately causing Plaintiffs’ injury.” (Id. at 36:22-27.)
25          Defendants correctly state the law that vicarious liability does not apply to Section
26   1983 actions. (Id. at 15:9-10.) However, a claim for requiring those under her
27   supervision to deprive certain State employees of benefits based on the sexual orientation
28   or sex of those employees does not invoke a vicarious liability theory. Rather, by

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      Case 2:09-cv-02402-JWS Document 23             Filed 02/11/10 Page 21 of 22



 1   requiring that those under her supervision implement Section O, Defendant Brewer is
 2   personally involved in the deprivation of Plaintiffs’ constitutional rights, just as the
 3   Connecticut governor was personally involved in dismissing union employees, Rowland,
 4   494 F.3d 71, and the Kansas governor was personally involved in implementing a school
 5   funding scheme, Robinson, 295 F.3d 1183, and the Michigan governor was personally
 6   involved in implementing an anti-integration law, Bradle, 433 F.2d 897. See also al-Kidd
 7   v. Ashcroft, 580 F.3d 949, 965 (9th Cir. 2009) (stating test for supervisory liability).
 8                                      III.   CONCLUSION
 9          For the foregoing reasons, Plaintiffs respectfully request that the Court deny
10   Defendants’ Motion to Dismiss.
11
     Dated: February 11, 2010
12
     LAMBDA LEGAL DEFENSE                        PERKINS COIE BROWN & BAIN P.A.
13   AND EDUCATION FUND, INC.
                                                     Daniel C. Barr
14       Jennifer C. Pizer                           Rhonda L. Barnes
         Tara L. Borelli                             James E. Barton II
15       3325 Wilshire Blvd., Ste. 1300              2901 North Central Avenue, Ste. 2000
         Los Angeles, California 90010               Phoenix, Arizona 85012-2788
16
         By: s/ Tara L. Borelli          .       Attorneys for Plaintiffs Tracy Collins,
17                                               Keith B. Humphrey, Joseph R. Diaz, Judith
                                                 McDaniel, Beverly Seckinger, Stephen
18                                               Russell, Deanna Pfleger, Corey Seemiller,
                                                 Carrie Sperling and Leslie Kemp
19
20
21
22
23
24
25
26
27
28

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     Case 2:09-cv-02402-JWS Document 23           Filed 02/11/10 Page 22 of 22



 1                               CERTIFICATE OF SERVICE
 2
 3         I hereby certify that on February 11, 2010 I electronically transmitted the foregoing
 4   document to the Clerk of Court using the CM/ECF System for filing and transmittal of a
 5   Notice of Electronic Filing to the following CM/ECF registrants:
 6   Jennifer C. Pizer                                Daniel C. Barr
     jpizer@lambdalegal.org                           DBarr@perkinscoie.com
 7   Tara L. Borelli                                  Rhonda L. Barnes
     tborelli@lambdalegal.org                         rbarnes@perkinscoie.com
 8   LAMBA LEGAL DEFENSE AND                          James E. Barton II
     EDUCATION FUND, INC.                             jbarton@perkinscoie.com
 9   3325 Wilshire Boulevard, Suite 1300              PERKINS COIE BROWN & BAIN P.A.
     Los Angeles, California 90010                    2901 North Central Avenue, Suite 200
10   Attorneys for Plaintiffs                         Phoenix, AZ 85012-2788
                                                      Attorneys for Plaintiffs
11
     Charles A. Grube
12   charles.grube@azag.gov
     Alisa Blandford
13   Alisa.blandford@azag.gov
     Kathryn J. Winters
14   kathryn.winters@azag.gov
     OFFICE OF THE ATTORNEY GENERAL
15   1275 West Washington
     Phoenix, AZ 85007
16   Attorneys for Defendants
17
18
19         I hereby certify that on February 11, 2010 I transmitted the foregoing document by
20   Federal Express overnight delivery to:
21   The Honorable John W. Sedwick
     United States District Court of Arizona
22   Sandra Day O’Connor U.S. Courthouse
     401 West Washington Street
23   Phoenix, Arizona 85003-2118
24
25                                                    s/ Jamie Farnsworth                      .
26
27
28

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