Association of American Physicians and Surgeons v. Brewer

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE ASSOCIATION OF AMERICAN 
PHYSICIANS & SURGEONS, a
nonprofit corporation; MATT
SALMON, a citizen of the State of
Arizona; DEAN MARTIN, a citizen
of the State of Arizona,
Plaintiffs-Appellants,
STEVEN S. POE; CLEAN ELECTIONS
INSTITUTE, INC.,
Intervenors-Appellees,
and
LORI DANIELS, a citizen of the No. 05-15630
State of Arizona, D.C. No.
Plaintiff,
v.  CV-04-00200-EHC
District of Arizona,
JAN BREWER, in her official Phoenix
capacity as Secretary of State of ORDER
the State of Arizona; DAVID A.
PETERSSEN, in his official capacity
as Treasurer of the State of
Arizona; TERRY GODDARD, in his
official capacity as Attorney
General of the State of Arizona;
LESLIE LEMON, a member of the
Arizona Citizens Clean Elections
Commission aka Gene Lemon;
DAVID G. MCKAY, a member of
the Arizona Citizens Clean
Elections Commission;

8695
8696 THE ASSOC. OF AMER. PHYSICIANS v. BREWER
KATHLEEN S. DEETRICK, a member 
of the Arizona Citizens Clean
Elections Commission; ERMILA
JOLLEY, a member of the Arizona
Citizens Clean Elections 
Commission; MARCIA BUSCHING, a
Member of the Arizona Citizens
Clean Elections Commission,
Defendants-Appellees.

Filed July 18, 2007
Before: John T. Noonan, Ronald M. Gould, and
Johnnie B. Rawlinson, Circuit Judges.
ORDER
Dean Martin’s petition for rehearing en banc is construed
as a petition for rehearing by the panel and is GRANTED.
Under binding precedent, his case is not moot. Caruso v.
Yamhill County, 422 F.3d 848, 853-854 (9th Cir. 2005). We
have jurisdiction. The judgment of the district court dismiss-
ing his case for money damages brought against officers of
the State of Arizona acting in their official capacities is
affirmed. The suit is barred by the Eleventh Amendment. Will
v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
The remainder of his complaint, seeking an injunction
against enforcement of A.R.S. § 16-9121(A) states a cause of
action. We remand this portion of the case to the district court
with instructions to permit further development.
AFFIRMED in part. REVERSED in part. REMANDED.
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