Michael K Jeanes, Clerk of Court *** Electronically Filed *** M.

Paigen, Deputy 9/20/2013 3:28:00 PM Filing ID 5459488

1 CHRIS FORD, ESQ., SBN 029437 LAW OFFICE OF CHRIS FORD 2 125 East Coronado Road 3 Phoenix, AZ 85004 t: 602-688-5571 4 f: 888-447-3714 5 cford@azbar.org 6 Attorneys for Plaintiffs, JOSE ROBERTO SOTO, MARIA SALAZAR, MAYRA MIRANDA 7 8 9 10 11 12 JOSE ROBERTO SOTO, MARIA 13 14 15 v. 16 LEAGUE OF UNITED LATIN 17 CHAPTER (LULAC); JOHN MIRELES, 18 Arizona Chapter; DAVID HERNANDEZ, 19 LULAC, Arizona Chapter; ANA
in his capacity as executive director of VALENZUELA, in her capacity as in his capacity as an officer of LULAC, AMERICAN CITIZENS, ARIZONA SALAZAR, MAYRA DISCUA MINRANDA, Plaintiffs, Case No. CV2013-008731 PLAINTIFFS REPLY BRIEF REGARDING SUBJECT MATTER JURISDICTION Assigned to: Hon. Michael Herrod

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA FOR THE COUNTY OF MARICOPA

20 national vice-president for youth for 22 23 24 25

1083; DOES 1-20,

21 capacity as president, LULAC Council #

Defendants.

LULAC; MARI ALVARADO, in her

INTRODUCTION
Plaintiffs hereby submit their Reply Brief in response to Defendants Brief in Opposition

26 (Opposition or Opp.) in compliance with rule 7.1(a), Ariz. R. Civ. P. In summary, defendants 27 make the following arguments, all of them conclusory: (1) LULAC has proceeded according to 28 due process, as defined by Manual Escobar or other LULAC leaders, and according to its own
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1 rules, Opp. at 2:2-9, 2:25-26;1 (2) LULAC has a right to deal with its internal affairs, including 2 membership, and that it has acted reasonably in such affairs, Opp. at 2:9-15; (3) Plaintiffs were 3 not members of LULAC and thus not entitled to vote (no time frame given), Opp. at 2:15-17, 4 2:19-20, 2:24-25, 3:3-4; (4) LULAC members are bound by LULACs constitution (a contention 5 plaintiffs do not dispute as a general proposition but does not bear on the jurisdiction issue), Opp. 6 at 2:17-18; and (5) ARS 10-3721 & 10-3302 apparently do not form the basis for jurisdiction, 7 Opp. at 2:23-25. 8
Defendants further attempt to make substantive arguments related to this case but unrelated

9 to the issue of subject matter jurisdiction. See Opp. at 2:20-22, 2:26-30. Such arguments include 10 the conclusory contention that LULAC do[es] not have unreasonable and arbitrary violations of 11 private rights and/or a contravention of established public policy. Opp. at 2:33-3:2. 12
Finally, Defendants appear to make a standing argument, i.e. Plaintiffs have no standing

13 to sue because they were not members, a position Defendants support with various U.S. Supreme 14 Court cases that deal with the bases on which a court may or may not intervene in a private 15 organizations decisions to accept members, see Opp. at 3. Defendants standing position is odd, 16 because this litigation concerns Defendants illicit and wrongful conduct of LULAC elections, not 17 their bases for accepting members. In summary, as further explained below Defendants completely 18 fail to rebut Plaintiffs position that the Court has subject matter jurisdiction over this litigation. 19 20 21
ARGUMENT
I. Defendants Fail to Demonstrate That the Court Lacks Statutory Bases for Jurisdiction. Defendants offer nothing substantive to rebut Plaintiffs arguments regarding the bases under

22 Arizona statutes on which this Court should find that it has jurisdiction over this case. See generally 23 Plaintiffs Brief Regarding Subject Matter Jurisdiction (Brief), at 3:8-6:5. For example, the only 24 support Defendants offer for their claim that the court lacks jurisdiction under A.R.S. 10-3721 is 25 26 27 28
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The copy of Defendants Opposition served on Plaintiffs contains no page numbers. The Opposition is three pages long, with substantive argument found on the second and third pages of the Opposition. Plaintiffs herein refer to the second page of the Opposition as page 2 and the third page as page 3.
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1 that Plaintiffs counsel misapplies for profit corporate law to this case which involves a non2 profit organization. Opp. at 2:23-24. 3
However, as Plaintiffs pointed out in their Brief, A.R.S. 10-3721 is found under Chapter

4 30 of Title 10, which deals with Nonprofit Corporations. Brief, at 3:26-4:1. Thus, the statute 5 clearly regulates nonprofit organizations, contrary to Defendants claim. Defendants offer no further 6 analysis or rebuttal as to whether A.R.S. 10-3721 should or does apply to LULAC, and they make 7 no attempt determine whether the statute implies a right of action under Cort v. Ash, 422 U.S. 66, 8 78 (1975) or Tucson v. Superior Court, 127 Ariz. 205, 208, 619 P.2d 33, 36 (Ariz. Ct. App. 1980). 9
Defendants analysis under A.R.S. 10-3302 is likewise spare. They simply urge the Court

10 to examine the statute objectively and conclude that LULAC has a reasonable and orderly due 11 process procedure pursuant to its By-laws and Constitution. Opp. at 2:25-26. However, A.R.S. 12 10-3302 does not regulate whether a groups procedure has a reasonable and orderly due process. 13 Rather, it constrains nonprofits to act not inconsistent with law in furtherance of their activities 14 and affairs. A.R.S. 10-3302(20). 15
Finally, Defendants offer no comment on whether A.R.S. 10-3302 confers jurisdiction on

16 a court to evaluate whether a nonprofit corporation has acted according to law, nor do they conduct 17 an appropriate analysis under Cort. Moreover, Defendants fail to offer any analysis or rebuttal 18 regarding whether Plaintiffs actually or potentially have a right under A.R.S. 10-3304 to challenge 19 LULACs power to act in a proceeding. 20
It is true that Plaintiffs have yet to make a claim under A.R.S. 10-3304. However, should

21 the Court find that this statute is the only basis under which it could retain subject matter 22 jurisdiction, Plaintiffs would respectfully request that the Court grant them leave to amend their 23 Complaint so that their claims could conform with the requirements of the statute. In summary, 24 Defendants fail to rebut Plaintiffs position that this Court has subject matter jurisdiction based on 25 Arizona statutes. 26 27 28
II. Defendants Cannot Show That the Court Lacks a Common Law Basis to Retain or Take Jurisdiction Over the Matter. The vast majority of Defendants contentions have nothing to do with whether this Court
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1 has or should take jurisdiction to resolve the dispute between the parties. For example, the Court 2 should disregard defendants arguments regarding substantive issues in the case, see Opp. at 2:203 3:4, because they have no bearing on whether the Court has jurisdiction to hear those issues. 4 Likewise, Defendants bare assertions that Plaintiffs in effect lack standing because they 5 supposedly are not members, and the U.S. Supreme Courts has given private groups leeway to 6 reject members they do not want as part of their groups, Opp. at 3, adds nothing of substance to 7 the issue here in dispute. 8
If anything, many of Defendants assertions support Plaintiffs argument that even if the

9 Court does not agree with Plaintiffs that it has statutory bases for jurisdiction, it does have or can 10 take jurisdiction under case authority. See Brief, at 6:6-8:14. According to such authority, the court 11 can and should take jurisdiction in a dispute concerning a private organization where the groups 12 actions are arbitrary and unreasonable; contravene its bylaws, law or public policy; or constitute 13 an abuse of discretion and invasion of the aggrieved partys rights. Brief, at 6:19-7:25. 14
It could be said that Defendants claims e.g., that they acted reasonably or according to

15 due process, that Plaintiffs were not members, or that Plaintiffs have no basis to sue because 16 private organizations have leeway to select their members support a finding of jurisdiction here, 17 to the extent that a court would need to take jurisdiction to resolve factual issues related to such 18 claims by examining evidence offered by the parties. 19
On the other hand, to the extent that Defendants rely on such naked assertions support the

20 proposition that the court does not have jurisdiction to hear this case, their contentions are without 21 merit, because Defendants support such claims only with conclusory assertions and blanket 22 denials and not with evidence. For example, in their affidavits in support of their Answer to First 23 Amended Complaint, Defendants assert, inter alia, that Plaintiffs were not members in good 24 standing, but the submit no documentation so support such a contention 25
In contrast, Plaintiffs have introduced ample proof that they were members at the relevant

26 times, and should the court require further evidence, could provide it. Moreover, relevant to 27 whether the Court has jurisdiction, Plaintiffs have submitted evidence in the form of detailed 28 affidavits that show Defendants abused their discretion and invaded Plaintiffs rights, acted
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1 arbitrarily and unreasonably and in contravention of LULACs constitution and bylaws, and with 2 regard to the voting irregularities this Court already has found that Defendants committed, much 3 less those they further engaged in during the Law Vegas convention contravened law and public 4 policy. 5
In summary, the bulk of Defendants Opposition appears calculated to defend their

6 wrongful acts or repeat their unsupported assertion that Plaintiffs were not members. To the extent 7 that some of their contentions could be seen as bearing on jurisdiction, they offer neither in their 8 Opposition nor in any other papers they have submitted evidence of their assertions. Significantly, 9 Defendants offer no rebuttal to Plaintiffs researched and reasoned position that relevant case 10 authority supports the courts retaining or taking jurisdiction in this case. 11
In summary, Defendants Opposition contains zero rebuttal of the analysis in Plaintiffs

12 Brief demonstrating that this Court has jurisdiction over the subject matter of this case. 13 Accordingly, this Court should find, consistent with the arguments in Plaintiffs Brief, that it has 14 subject matter jurisdiction over the within litigation. 15 16
CONCLUSION
For the foregoing reasons and based on the foregoing authorities, Defendants fail to

17 provide any substantive reason why this Court does not have or should not take subject matter 18 jurisdiction in this case. The court should retain or take jurisdiction and allow the parties to 19 proceed to hearing over whether an injunction should issue. 20 21 DATED this 20th day of September, 2013 22 23 24 25 26 27
___/s/ Chris Ford_________ By: Chris Ford, Esq. Respectfully Submitted, LAW OFFICE OF CHRIS FORD Attorney for plaintiffs

ORIGINAL of the foregoing 28 E-FILED this 20th day of September, 2013 with:
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1 Clerk of the Court 2 Maricopa County Superior Court

201 West Jefferson 3 Phoenix, Arizona 85003

4 FOR Hon. Judge Michael Herrod 5 COPY of the foregoing FAXED 6 this 20th day of September, to: 7 Luis Roberto Vera, Jr. 9
Fax: 210-225-2060 Counsel for defendants

8 League of United Latin American Citizens 10 Anthony Guajardo

National General Counsel,

11 Fax: 602-957-0801

12 ___/s/ Chris Ford_________ 13 By: Chris Ford 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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