Thomas v. Mundell ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW PEYTON THOMAS, 
Maricopa County Attorney;
LORENZO ARENIVAZ; TIMOTHY
WILLIS; BARBARA WILLIS,
Plaintiffs-Appellants,
v.
BARBARA MUNDELL, Judge of the
Superior Court of Arizona; CAREY No. 07-15388
SNYDER HYATT, Judge of the D.C. No.
Superior Court of Arizona; AIMEE  CV-06-00598-PHX-
ANDERSON, Commissioner, EHC
Superior Court of Arizona;
OPINION
RICHARD NOTHWEHR,
Commissioner, Superior Court of
Arizona; STEVEN LYNCH,
Commissioner, Superior Court of
Arizona; JAMES T. BLOMO,
Commissioner, Superior Court of
Arizona,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Argued and Submitted
October 23, 2008—San Francisco, California
Filed July 15, 2009
Before: J. Clifford Wallace, Sidney R. Thomas and
Susan P. Graber, Circuit Judges.
8947
8948 THOMAS v. MUNDELL
Opinion by Judge Wallace
8950 THOMAS v. MUNDELL
COUNSEL
Michael A. Carvin, Jones Day, Washington, D.C., for the
plaintiffs-appellants.
Scot L. Claus, Mariscal, Weeks, McIntyre & Friedlander,
P.A., Phoenix, Arizona, for the defendants-appellees.
OPINION
WALLACE, Senior Circuit Judge:
Andrew Peyton Thomas, the County Attorney for Maricopa
County, Arizona, in his official capacity (Thomas), along with
Lorenzo Arenivaz, Timothy Willis, and Barbara Willis (indi-
vidual plaintiffs), sued several judges and commissioners of
the Arizona Superior Court for injunctive and declaratory
relief. They allege that certain post-sentencing probation pro-
grams adopted and supervised by the superior court violate
their federal constitutional and statutory rights. The district
court dismissed their claims for lack of standing. Thomas and
the individual plaintiffs timely appealed from the district
court’s dismissal. Because we agree that Thomas and the indi-
vidual plaintiffs lack standing to challenge the probation pro-
grams at issue, we affirm the district court’s dismissal.
I.
In 1998, the Maricopa County Adult Probation Department
instituted a separate and specialized probation program for
THOMAS v. MUNDELL 8951
individuals convicted of aggravated driving-under-the-
influence (DUI) offenses. This program was funded through
a grant from the National Traffic Safety Administration, and
is commonly known as the “DUI court.” Eligible persons
were enrolled in the DUI court after having completed their
respective sentences. The DUI court differs from traditional
criminal probation in several respects. For example, proba-
tioners in the DUI court engage in more frequent contact with
their assigned probation officers, participate in substance
abuse treatment courses and counseling, and take part in peer
support groups and observation. Probationers are also
required to attend monthly status hearings before a superior
court judge, who tracks and monitors their progress.
Subsequently, Maricopa County instituted separate DUI
courts for Spanish-speaking and for Native American proba-
tioners. These programs were meant in part to address
observed deficiencies in the treatment and rehabilitation ser-
vices rendered to these groups of probationers in the standard
DUI court program. The “Spanish-speaking DUI court” was
established in December 2002, and the “Native American
DUI court” followed in 2003 (collectively, separate DUI
courts). The separate DUI courts were funded through a grant
from the Substance Abuse and Mental Health Services
Administration of the United States Department of Health and
Human Services.
Thomas and the individual plaintiffs allege that the separate
DUI courts “segregate targeted recipients and treat them dif-
ferently than the ‘regular’ DUI court.” Specifically, the
amended complaint alleges that proceedings in the Spanish-
speaking DUI court are conducted in Spanish and are presided
over exclusively by defendant Judge Barbara Mundell.
Thomas and the individual plaintiffs allege that probationers
in the Spanish-speaking DUI court receive more positive rein-
forcement and fewer or lighter punishments as compared to
probationers in the “regular” DUI court. Also, the headphone
translation system employed in the Spanish-speaking DUI
8952 THOMAS v. MUNDELL
court is allegedly outdated and inadequate, preventing mem-
bers of the public and the press from receiving “translation in
a timely and appropriate manner.”
With respect to the Native American DUI court, the
amended complaint alleges that probationers here are gener-
ally required to appear on the same day. Probationers in the
Native American DUI court also allegedly participate in “cul-
tural programs, specially designed for them, such as being
sent to sweat lodges and participating in talking circles.”
Administrators of the DUI court program also allegedly treat
participants in the Native American DUI court “as a separate
group” for grant reporting purposes.
Thomas filed the original complaint on February 28, 2006.
An amended complaint was filed on March 13, 2006, adding
the individual plaintiffs to this action. As described above,
Thomas is the County Attorney for Maricopa County.
Arenivaz is a resident of Maricopa County, and a victim of a
DUI crime perpetrated by a probationer who participated in
the “regular” DUI court. The Willises are residents of Mari-
copa County, and victims of a DUI crime committed by a pro-
bationer who participated in the Spanish-speaking DUI court.
Thomas and the individual plaintiffs assert claims under the
First Amendment, the Equal Protection Clause and Due Pro-
cess Clause of the Fourteenth Amendment, Title VI of the
Civil Rights Act of 1964, and 42 U.S.C. § 1981. They seek an
order declaring the separate DUI courts unconstitutional, and
enjoining the defendants from operating these probation pro-
grams. The defendants filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1) and (6), asserting,
among other claims, that the plaintiffs lack standing to bring
this action in federal court. The district court granted the
defendants’ motion to dismiss, ruling that the plaintiffs have
failed to allege sufficient injury in fact to establish their stand-
ing to bring suit under Article III. This appeal followed.
THOMAS v. MUNDELL 8953
II.
Standing is a necessary element of federal-court jurisdic-
tion under Article III of the Constitution. Warth v. Seldin, 422
U.S. 490, 498 (1975). “A threshold question in every federal
case is, therefore, whether at least one plaintiff has standing.”
City of South Lake Tahoe v. Cal. Tahoe Reg’l Planning
Agency, 625 F.2d 231, 233 (9th Cir. 1980), citing Constr.
Indus. Ass’n of Sonoma County v. City of Petaluma, 522 F.2d
897, 903 (9th Cir. 1975). We review the district court’s deter-
mination on that issue de novo. Stewart v. Thorpe Holding
Co. Profit Sharing Plan, 207 F.3d 1143, 1148 (9th Cir. 2000).
Because the standing issue was raised before the district court
in a motion to dismiss, we “must accept as true all material
allegations of the complaint, and must construe the complaint
in favor of the complaining party.” Warth, 422 U.S. at 501.
[1] To have standing to sue in federal court, a plaintiff must
allege “ ‘such a personal stake in the outcome of the contro-
versy’ as to warrant his invocation of federal-court jurisdic-
tion and to justify exercise of the court’s remedial powers on
his behalf.” Id. at 498-99, quoting Baker v. Carr, 369 U.S.
186, 204 (1962). Therefore, “the plaintiff must have suffered
an ‘injury in fact’ — an invasion of a legally protected inter-
est which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical.” Lujan v. Defend-
ers of Wildlife, 504 U.S. 555, 560 (1992) (citations, internal
quotation marks, and footnote omitted). A “particularized”
injury is one that “affect[s] the plaintiff in a personal and indi-
vidual way.” Id. at 560 n.1. Thus, a plaintiff normally does
not have standing where the only “asserted harm is a ‘general-
ized grievance’ shared in substantially equal measure by all or
a large class of citizens.” Warth, 422 U.S. at 499, citing
United States v. Richardson, 418 U.S. 166, 174-80 (1974).
A.
We first hold that Thomas lacks standing to bring this suit
under our well-settled precedent South Lake Tahoe. In that
8954 THOMAS v. MUNDELL
case, the mayor and city councilmembers of the City of South
Lake Tahoe (collectively, councilmembers) sought to enjoin
the enforcement of certain land use regulations and regional
and transportation plans adopted by the California Tahoe
Regional Planning Agency (Agency), a political subdivision
of the State of California. 625 F.2d at 232-33. They alleged
that the regulations and plans violated various federal consti-
tutional guarantees. Id. The councilmembers argued that they
had standing to challenge these regulations because “they are
required by law to enforce the [Agency’s] regulations, and yet
by voting to enforce these [purportedly unconstitutional] reg-
ulations[, they] would violate their oaths of office to uphold
the U.S. Constitution.” Id. at 233 (internal citation omitted).
In rejecting the councilmembers’ standing arguments, we
concluded that the source of the councilmembers’ complaint
was “just abstract outrage at the enactment of an unconstitu-
tional law. Apart from the highly speculative potential expo-
sure to civil liability [for enforcing an unconstitutional
regulation] . . . , the councilmembers will lose nothing by
enforcing the [Agency’s] ordinances save an abstract measure
of constitutional principle.” Id. at 237. We reasoned that to
confer standing on the councilmembers based on their “ab-
stract disagreement with the legislature over land use” would
conflict with the fundamental premise of federal standing doc-
trine — that a litigant’s standing cannot be based on the
“ ‘generalized interest of all citizens in constitutional gover-
nance.’ ” Id. at 237-38, quoting Schlesinger v. Reservists
Comm. to Stop the War, 418 U.S. 208, 217 (1974). Thus, we
held that the councilmembers’ interest in that case was “ ‘offi-
cial’ rather than ‘personal,’ ” rendering their claim to standing
deficient. Id. at 238.
The distinction we drew between “official” and “personal”
interests derives from the Supreme Court’s decision in Smith
v. Indiana, 191 U.S. 138 (1903). In that case, the Court held
that a county tax auditor did not have standing to challenge
THOMAS v. MUNDELL 8955
the constitutionality of a state property tax statute in federal
court. Id. at 149-50. In so holding, the Court reasoned:
It is evident that the auditor had no personal interest
in the litigation. He had certain duties as a public
officer to perform. The performance of those duties
was of no personal benefit to him. Their nonperfor-
mance was equally so. He neither gained nor lost
anything by invoking the advice of the [state]
supreme court as to the proper action he should take.
He was testing the constitutionality of the law purely
in the interest of third persons, viz., the taxpayers
. . . . We think the interest of an appellant in this
court should be a personal, and not an official, inter-
est . . . .
Id. at 149 (internal citation omitted). The Court accordingly
dismissed the tax auditor’s challenge because the auditor “did
not have the requisite interest to maintain [his] appeal.” Id. at
150.
[2] Under South Lake Tahoe and Smith, Thomas does not
have standing to challenge the constitutionality of the separate
DUI courts because his interest in this case is official, and not
personal. The amended complaint alleges that, “[t]hrough his
representation of the people of Maricopa County before state
DUI courts, [Thomas] and his office are compelled to partici-
pate in unconstitutional separate DUI courts for Spanish
speakers and for Native Americans . . . in violation of the
Constitution and laws of the United States.” South Lake
Tahoe teaches, however, that a public official’s “personal
dilemma” in performing official duties that he perceives to be
unconstitutional does not generate standing. 625 F.2d at 237.
Like the councilmembers in that case, Thomas’ “abstract out-
rage” at his obligation to participate in purportedly unconsti-
tutional programs is based on nothing more than the
“ ‘generalized interest of all citizens in constitutional gover-
nance.’ ” Id., quoting Schlesinger, 418 U.S. at 217. Moreover,
8956 THOMAS v. MUNDELL
the performance of his duties as County Attorney in the sepa-
rate DUI courts is of no personal benefit to him. See Smith,
191 U.S. at 149. Thomas loses nothing by his participation in
these separate DUI courts “save an abstract measure of consti-
tutional principle.” South Lake Tahoe, 625 F.2d at 237. He
therefore lacks standing to bring this suit.
Thomas argues that his injury is more direct and particular-
ized than the councilmembers’ injury in South Lake Tahoe
because here he is “subjected . . . to an unconstitutional and
illegal judicial process,” whereas the councilmembers were
merely “implementing or enforcing” purportedly unconstitu-
tional regulations. But the councilmembers could have simi-
larly characterized their injury as being subject to the
purportedly unconstitutional regulations they were obliged to
enforce. The crux of their claimed injury, however, lay in
their “abstract outrage at the enactment of an unconstitutional
law.” Id. Likewise, Thomas’ claimed injury is based upon his
“abstract outrage” at the operation of a state program he per-
ceives to be unconstitutional. Thus, South Lake Tahoe is
directly on point.
Thomas attempts to circumvent the clear import of South
Lake Tahoe by alleging that the operation of the separate DUI
courts “disadvantages him and his office in fulfilling prosecu-
torial functions.” But any “disadvantage” suffered by Thomas
(and his office) in the separate DUI courts is institutional, not
personal. In Raines v. Byrd, 521 U.S. 811, 829-30 (1997), the
Supreme Court held that members of Congress did not have
standing to challenge the constitutionality of the Line Item
Veto Act because they did not have a sufficient “personal
stake” in the dispute. The congresspersons alleged that the
Line Item Veto Act caused an unconstitutional diminution of
Congress’ power relative to the Executive Branch, thereby
inflicting upon each congressperson a judicially cognizable
injury. Id. at 816. The Court rejected this argument, conclud-
ing that the alleged injury “is based on a loss of political
power, not loss of any private right.” Id. at 821. “The claimed
THOMAS v. MUNDELL 8957
injury thus runs (in a sense) with the Member’s seat, a seat
which the Member holds (it may quite arguably be said) as
trustee for his constituents, not as a prerogative of personal
power.” Id.
[3] Similarly, Thomas’ claimed injury in being “disadvan-
taged” by the separate DUI courts is based on the loss of his
institutional power as County Attorney, not the loss of any
private right. Thomas is not personally affected by the various
ways the separate DUI courts allegedly hamper the execution
of his prosecutorial duties. As with the congresspersons’ alle-
gations of injury in Raines, the alleged disadvantages imposed
on the office of County Attorney by the operation of the sepa-
rate DUI courts run with the office, and cannot be considered
injuries personal to Thomas. Id. Thus, Thomas’ allegations of
disadvantage to the office of County Attorney are insufficient
to plead successfully standing.
Thomas responds that even if the disadvantages suffered by
his office cannot be attributed to him personally, he has
alleged the requisite injury in fact because the “racially segre-
gated” DUI court imposes on him a direct and personal injury
under Georgia v. McCollum, 505 U.S. 42 (1992). In McCol-
lum, the Supreme Court held that the State of Georgia had
third-party standing to raise the equal protection rights of
jurors improperly excluded from a jury by a criminal defen-
dant’s discriminatory use of peremptory challenges. Id. at 55-
56. In so ruling, the Court held that a state suffers a cogniza-
ble injury for standing purposes because “racial discrimina-
tion in the selection of jurors ‘casts doubt on the integrity of
the judicial process,’ and places the fairness of a criminal pro-
ceeding in doubt.” Id. at 56, quoting Powers v. Ohio, 499 U.S.
400, 411 (1991).
Thomas argues that as Maricopa County Attorney he acts
“on behalf of the State,” and therefore has standing as a state
agent to challenge the separate DUI courts as racially discrim-
inatory. However, even assuming that Thomas can properly
8958 THOMAS v. MUNDELL
be considered a representative of the State of Arizona with
respect to his claims (itself a dubious proposition given the
Arizona Attorney General’s silence in this action), McCollum
does not confer upon him standing to sue. McCollum’s hold-
ing that the state had a cognizable injury for third-party stand-
ing purposes was guided by the fact that the state was a party
in the specific criminal prosecution at issue. See id. at 55-56.
Here, Thomas does not allege that he or the State is a party
in proceedings before the separate DUI courts. Although the
amended complaint alleges that Thomas represents “the peo-
ple of Maricopa County before state DUI courts,” and that he
and his office are “compelled to participate” in the probation
programs, these allegations are too vague to plead success-
fully his standing to sue under McCollum. See Mann v. City
of Tucson, 782 F.2d 790, 793 (9th Cir. 1986) (per curiam)
(“Although we must, in general, accept the facts alleged in the
complaint as true, wholly vague and conclusory allegations
are not sufficient to withstand a motion to dismiss”).
[4] Thomas’ powers as County Attorney are strictly limited
by the Arizona Constitution, and he points to no constitutional
provision or other legal authority indicating that he or his
office is a party to the proceedings in the separate DUI courts.
The Arizona Constitution provides that “[t]he duties, powers,
and qualifications of [the County Attorney] shall be as pre-
scribed by law.” Ariz. Const. art. 12, § 4. The legislature in
turn has prescribed that the County Attorney shall “[a]ttend
the superior and other courts within the county and conduct,
on behalf of the state, all prosecutions for public offenses.”
Ariz. Rev. Stat. § 11-532(A)(1). As the amended complaint
alleges, however, the DUI courts are “post-sentencing” proba-
tion programs, conducted for “defendants convicted of DUI”
— they are not “prosecutions for public offenses.” Therefore,
Thomas as County Attorney, representing either the County
or the State, cannot be considered a party to these proceed-
ings; he thus does not have standing under McCollum.
[5] Finally, to the extent that Thomas argues that he has
third-party standing to assert the rights of the various proba-
THOMAS v. MUNDELL 8959
tioners required to attend the separate DUI courts, we reject
his contention. To establish third-party standing, a plaintiff
must allege that he has suffered an “injury in fact, thus giving
him or her a sufficiently concrete interest in the outcome of
the issue in dispute.” Powers, 499 U.S. at 411 (internal quota-
tion marks omitted). As described above, Thomas’ interest in
this dispute is purely official, so he lacks the requisite injury
in fact to assume third-party standing on behalf of the separate
DUI court probationers.
B.
The individual plaintiffs similarly lack standing to chal-
lenge the separate DUI courts. They allege that they are vic-
tims of DUI crimes perpetrated by certain probationers who
participated in either the “regular” DUI court or the Spanish-
speaking DUI court. As such, they have been allegedly “dis-
advantaged by unequal access to judicial services and by hav-
ing the case of the defendant who harmed them adjudicated
in a racially separate DUI court system.” These allegations
describe injuries too generalized and impersonal to generate
standing. See Lujan, 504 U.S. at 560 (requiring that a plaintiff
assert the intrusion of a legally protected interest that is “con-
crete” and “particularized”).
[6] In United States v. Mindel, 80 F.3d 394 (9th Cir. 1996),
we held that crime victims did not have standing to challenge
a district court order rescinding criminal restitution payments
because the restitution order “serves a penal rather than a
compensatory purpose,” and so its rescission did not cause the
crime victims an injury in fact. Id. at 397, citing United States
v. Johnson, 983 F.2d 216, 217 (11th Cir. 1993). In this case,
the DUI court at issue serves a similarly penal, rather than
compensatory, purpose. The amended complaint alleges that
the DUI court “focuses on defendants convicted of aggravated
DUIs,” and may include “participation in substance abuse
treatment programs, attendance at support group meetings
such as Alcoholics Anonymous, observing a Victim Impact
8960 THOMAS v. MUNDELL
Panel, reporting to the Probation Department, seeking or
securing employment, and pledges of sobriety.” The DUI
courts thus mainly operate to penalize DUI probationers
rather than compensate victims. Therefore, the fact that the
Superior Court altered these probation programs to some
degree by incorporating the separate DUI courts does not
cause any concrete injury to the individual plaintiffs as vic-
tims of DUI probationers.
[7] The individual plaintiffs respond that the separate DUI
courts deprive them, as crime victims, of their “rights to jus-
tice and due process” as protected by the Victims’ Bill of
Rights in the Arizona Constitution. However, each of the indi-
vidual plaintiffs has already seen the perpetrator of their
respective crimes tried and convicted for the charged DUI
offense in the Superior Court. The individual plaintiffs cite no
authority for the proposition that their rights to “justice and
due process” also encompass an interest in the administration
and operation of non-compensatory post-conviction probation
programs such as the separate DUI courts. See Kelly v. Robin-
son, 479 U.S. 36, 52 (1986) (observing that the “criminal jus-
tice system is not operated primarily for the benefit of
victims, but for the benefit of society as a whole”).
III.
[8] We hold that neither Thomas nor the individual plain-
tiffs have successfully pled their standing to challenge the
constitutionality of the separate DUI courts. Although we do
not take lightly allegations of racial discrimination in the judi-
cial system, the doctrine of standing is of equal consequence.
This constitutional prerogative “is founded in concern about
the proper—and properly limited—role of the courts in a
democratic society.” Warth, 422 U.S. at 498. And as we held
nearly three decades ago, the standing requirements of Article
III “bar the courthouse door until the victim of a law’s uncon-
stitutional enforcement . . . chooses to knock.” South Lake
Tahoe, 625 F.2d at 238. In this case, Thomas and the individ-
THOMAS v. MUNDELL 8961
ual plaintiffs have not alleged sufficient interest in this dispute
to merit their entry into federal court. We therefore affirm the
district court’s dismissal of their claims for lack of standing.
AFFIRMED.