ASS'N OF AMERICAN PHYSICIANS & SURGEONS v. Brewer

494 F.3d 1145 (2007)

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 State of Arizona, Plaintiff,
v.
Jan BREWER, in her official capacity as Secretary of State of 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; 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.

No. 05-15630.

United States Court of Appeals, Ninth Circuit.

Filed July 18, 2007.

Tim Keller, Esq., Scott G. Bullock, Esq., Institute for Justice, Phoenix, AZ, Plaintiffs-Appellants.

Deborah Goldberg, Esq., Brennan Center for Justice, New York, NY, Timothy M. Hogan, Esq., Arizona Center for Law in the Public Interest, Phoenix, AZ, Joy E. Herr-Cardillo, Esq., Tucson, AZ, for Intervenors-Appellees.

Craig W. Soland, Peter A. Silverman, Esq., Office of the Arizona, Attorney General, Phoenix, AZ, for Defendants-Appellees.

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 dismissing 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, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (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.