United States v. 2005-08-09 | 05-15005 | HOUSE VNAPOLITANO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 FRIENDLY HOUSE; SAMUEL U
CHAVIRA; TAMMY GREGOIRE; JULIA
V, by and through his guardian ad
litem; V BETO; MARISOL C, by and
through their guardian ad litem;
ADAN C; FRANCISCO C; ALEJANDRA
C; LUCY A; JOAQUIN G, by and
through their guardian ad litem;
MANUEL G; JOSE G; MARIA S, by
and through their guardian ad
litem; SERGIO S; JUANITA S;
NATHAN S; MARCO S; CLAUDIA S;
LYDIA HERNANDEZ, No. 05-15005
Plaintiffs-Appellants, D.C. No.
v. CV-04-00649-DCB
 District of Arizona, JANET NAPOLITANO, in her official Tucson capacity as Governor of the State
of Arizona; JAN BREWER, in her ORDER
official capacity as Secretary of
State of the State of Arizona;
DAVID A BERNS, Director of the
Arizona Dept of Economic
Security,
Defendants-Appellees,
YES ON PROPOSITION 200; RANDY
PULLEN; FEDERATION FOR AMERICAN
IMMIGRATION REFORM; KATHY
MCKEE; CLAUDIA BLOOM,
Defendants-Intervenors-
Appellees. 
10233

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Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted
June 13, 2005—San Francisco, California
Filed August 9, 2005
Before: Alfred T. Goodwin, Thomas M. Reavley,* and
Johnnie B. Rawlinson, Circuit Judges.
COUNSEL
Hector O. Villagra, Mexican American Legal Defense and
Educational Fund, Los Angeles, California, for the plaintiffs-
appellants.
Mary O’Grady, Office of Attorney General, Phoenix, Ari-
zona, for the defendants-appellees.
Edmond D. Kahn, Tucson, Arizona, for intervenors-
defendants/appellees McKee and Bloom.
Jayme Shipp and William Perry Pendley, Mountain States
Legal Foundation, Lakewood, Colorado, for defendants-
intervenors/appellees Yes on Proposition 200, et al.
ORDER
The appeal is dismissed for want of jurisdiction. The dis-
trict court record reveals that there was no case or controversy
*The Honorable Thomas M. Reavley, Senior United States Circuit
Judge for the Fifth Circuit, sitting by designation.
10234 FRIENDLY HOUSE v. NAPOLITANO

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between plaintiffs and the State of Arizona when pleadings
were before the district court. See San Diego County Gun
Rights Comm’n v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996)
(“Standing is an essential, core component of the case or con-
troversy requirement.”). The order of the district court, styled
Friendly House v. Napolitano, and filed on December 22,
2004, must be vacated because the plaintiffs lack standing.
Plaintiffs appeal the district court’s denial of a preliminary
injunction to enjoin the enforcement of Arizona Proposition
200, addressing voter registration and public benefits. The
plaintiffs are certain state and local employees subject to
Proposition 200’s criminal provision and certain potentially
eligible benefit recipients. Plaintiffs have not met their burden
of demonstrating an injury-in-fact. “[N]either the mere exis-
tence of a proscriptive statute nor a generalized threat of pros-
ecution satisfies the ‘case or controversy’ requirement.”
Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134,
1139 (9th Cir. 2000) (en banc). Although it is not necessary
for a plaintiff to subject himself to actual arrest or prosecution
in order to establish standing, see, e.g., Culinary Workers
Union, Local 226 v. Del Pap, 200 F.3d 614, 617-618 (9th Cir.
1999), a plaintiff must at least show a “genuine threat of
imminent prosecution.” See San Diego County, 98 F.3d at
1126. Here, plaintiffs have not articulated (1) a concrete plan
to violate Proposition 200, (2) evidence that prosecuting
authorities have communicated a specific warning or threat to
initiate proceedings, or (3) a history of past persecution,
which clearly cannot be shown here. See Thomas, 220 F.3d at
1139. Nor is a First-Amendment injury alleged which would
relax the standing requirement. See San Diego County, 98
F.3d at 1129.
We therefore VACATE the order below and REMAND
with instructions to DISMISS WITHOUT PREJUDICE. Nei-
ther party to receive costs.
10235 FRIENDLY HOUSE v. NAPOLITANO

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The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2005 Thomson/West.

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