Wednesday, April 27, 2011


Chief Justice John Roberts wrote in the case of Winter v. Natural Resources Defense Council, (No. 07-1239) 555 U.S. ___ (2008) that "[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest."

Relying on Winters Judge Paez next takes the Ninth Circuit's review of Judge Bolton's decision to a review of the equitable factors of the case. Citing a litany of cases Paez demonstrates that the balance of equities is clearly in favor of the United States and against Arizona.

Assoc. Gen. Contractors v. Coal. For Econ. Equity, 950 F.2d 1401, 1412 (9th Cir. 1991): "We have stated that an alleged constitutional infringement will often alone constitute irreparable harm."

Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 852-53 (9th Cir. 2009): "[I]t is clear that it would not be equitable or in the public’s interest to allow the state . . . to violate the requirements of federal law, especially when there are no adequate remedies available . . . . In such circumstances, the interest of preserving the Supremacy Clause is paramount."

Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1059-60 (9th Cir. 2009): which recognized that the balance of equities and the public interest weighed in favor of granting a preliminary injunction against a likely-preempted local ordinance.


Paez sustained Judge Bolton writing: "Accordingly, we find that as to the S.B. 1070 Sections on which the United States is likely to prevail, the district court did not abuse its discretion in finding that the United States demonstrated that it faced irreparable harm and that granting the preliminary injunction properly balanced the equities and was in the public interest."

The irony of this scant inquiry in favor of the government's position is that it was a scant inquiry against the government's position in Winter that led to the Supreme Court's review and overruling of that case. The original action in Winter led a California District Court to issue an injunction against the Navy for its use of sonar testing off the California coast. In that case the trial judge failed to give adequate deference to the Navy. What saves Judge Paez's opinion is that this abbreviated part of his analysis is not taken out of context. Paez's section by section discussion of SB 1070 anchors his conclusion; the brevity of which saves us from redundancy.

Coming up next: Judge Noonan's concurring opinion.

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