February 03, 2010

Interesting Development in Ninth Circuit Appeal of Arizona Matching Funds Case

On January 20, I linked to the federal district court opinion holding that the matching funds provision of Arizona's public financing law likely violated the First Amendment under the reasoning of the Supreme Court's opinion in Davis v. FEC. (For more on the legal argument, see this article by one of my Loyola of Los Angeles Law Review advisees, Emily Schuman.).

When the district court issued its order granting a preliminary injunction barring the matching funds provision of the law pending a final determination on the merits, its stayed its order for 10 days for the state to seek a further stay from the Ninth Circuit. Today a motion's panel of the Ninth Circuit issued this order extending the stay pending a further order from a (presumably different) Ninth Circuit merits panel to hear the appeal. It also expedited the appeal for consideration in April.

What is interesting about the order is that there was a six page dissent to it by one of the three Ninth Circuit judges, Judge Bea. Judge Bea takes the position that the challengers to the law are likely to succeed on the merits, under Davis. Judge Bea also cites to some dicta in Citizens United, making this perhaps the first case to cite to Citizens United. Judge Bea's order is worth a read; the state has to be hoping Judge Bea won't be on the merits panel.

Posted by Rick Hasen at February 3, 2010 02:04 PM