Académique Documents
Professionnel Documents
Culture Documents
1
2
3
4
5
6
7
8
9
10
DISTRICT OF ARIZONA
11
12
13
14
15
16
vs.
Joseph. M. Arpaio, et. Al.,
Defendants.
17
18
19
In this Courts February 26, 2016, order (Order) regarding Maricopa Countys
20
21
Motion for Recognition of Rights as a Party Litigant (Motion for Recognition), the
22
Court denied the Countys motion . . . to the extent that the Motion seeks to limit the
23
County for purposes of this lawsuit as being other than the County as a whole sued as the
24
appropriate jural entity against which suits against the MCSO must be brought. (Doc.
25
26
27
28
1630, at p. 2, ll. 10-13.) Defendant Maricopa County respectfully moves this Court,
pursuant to LRCiv 7.2(g), to reconsider this portion of its order or, in the alternative, to
1
1
2
3
4
5
6
7
certify to the Arizona Supreme Court, pursuant to Ariz. Rev. Stat. Ann. 12-1861, the
question of whether the County is the appropriate jural entity to be sued for actions of the
Sheriff and Maricopa County Sheriffs Office (MCSO). This motion is supported by
the following Memorandum of Points and Authorities.
MEMORANDUM OF POINTS AND AUTHORITIES
LRCiv 7.2(g) provides, in part, as follows:
8
9
10
11
12
13
LRCiv 7.2(g) authorizes a party to file a motion for reconsideration if the party
14
15
(motion for reconsideration shall point out with specificity the matters that the movant
16
17
18
19
reconsideration because the unaddressed argument may be a reason the courts decision is
20
clearly erroneous. See McIntoch v. Maricopa Community Coll. Dist., No. CV-07-0760,
21
2008 WL 1286197, at *1 (D. Ariz. May 8, 2009) (court should grant motion for
22
23
reconsideration if the movant makes a convincing showing that the Court failed to
24
consider material facts that were presented to the Court before its initial decision);
25
Motorola, Inc. v. J.B. Rodgers Mechanical Contractors, Inc., 215 F.R.D. 581, 586 (D.
26
923, 925 (D. Ariz. 1999) (reconsideration appropriate where court has patently
3
4
5
Lerner v. Sartori, No. CIV 98-1989, 1999 WL 33128002 at *1 (D. Ariz. Apr. 21, 1999)
(same).
misapprehended the Countys argument regarding the reasons why it is a legal entity
8
9
separate and distinct from the Sheriff and MCSO and, by virtue of that fact, entitled to
10
exercise the full rights of a party litigant, including the right to espouse and advocate
11
positions in the litigation regardless of their consistency with those taken by any other
12
party.
13
15
16
In its Motion for Recognition, the County asked the Court to recognize it is
17
entitled to the full panoply of rights of any other party to this matter, including, inter
14
I.
18
alia, the right to assert substantive and legal positions irrespective of their consistency
19
20
with those taken by any other party . . .. (Doc. 1272, at p. 2, at ll. 10-12). In its Order,
21
the Court stated that, [t]he County has . . . been allowed to participate and proceed as a
22
separate party, with the exception that, on a few occasions, the Court has upheld
23
relevance objections to some of the Countys lines of questioning in light of its status in
24
25
this suit as the appropriate jural entity for the MCSO. (Doc. 1630, at p.2, ll. 6-9).
26
While the County appreciates that the Court has recognized the Countys right to
27
participate as a separate party, the Order did not specifically address the central question
28
1
2
3
4
posed by the Countys Motion for Recognition that the County has the right to assert its
own positions, irrespective of their consistency with positions taken by other parties. The
Courts Order overlooks the fact that the Court has actually been much more restrictive
than the Order would suggest in this regard. Three examples are provided below for
context.
7
8
9
At the April 23, 2015, Evidentiary Hearing, the Court indicated that . . . as I think
Ive indicated more or less clearly since the beginning, Im not sure that you have
10
independent status here other than being, according to the Ninth Circuit order, the
11
appropriate party, represented for all practical purposes in this matter by Ms. Iafrate.
12
13
14
15
for the time being, in these proceedings. (Exhibit A, Hearing Tr., April 23, 2015, at p.
613, l. 25 p. 614, l. 9).
16
As another example, at the July 31, 2015, Status Conference, the Court stated,
17
Mr. Walker, last week I think you indicated that you really dont have any right to
18
substantively argue anything different than the sheriff, because while you have no power
19
20
to control the sheriff, and you may or may not agree with him, Maricopa County is bound
21
22
substantive opposition to the admission for pro hac vice of Larry Klayman when the
23
sheriff explicitly took no possession [sic] one way or the other. I dont know that you
24
25
have any authority to do that, do you? . . . youre a party because youre going to be
26
liable for any judgment, not because you have any substantively different legal right to
27
protect. (Exhibit B, Status Conf. Tr., July 31, 2015, at p. 57, ll. 8-18; at p. 58, ll. 16-18).
28
As a final and perhaps most pointed example, at the August 7, 2015, In-Court
Hearing, the Court stated, . . . Im really not sure, as it relates to the merits of this
3
4
lawsuit, that youre in a position to take any position different than the Sheriffs Office,
and I think we discussed that last week. (Exhibit. C, Hearing Tr., Aug. 7, 2015, at p. 37,
ll. 14-17).
For the reasons articulated at length in the Countys motion and reply, but not
8
9
addressed in the Order, the County respectfully submits that the Court should reconsider
10
its ruling and grant the relief requested recognition that the County has the full panoply
11
of rights enjoyed by all other parties. This necessarily includes the right to determine for
12
itself what substantive positions are in the best interest of the County regardless of
13
14
15
16
17
18
In the Order, the Court denied the Countys Motion for Recognition . . . to the
19
extent that the Motion seeks to limit the County for purposes of this lawsuit as being
20
other than the County as a whole sued as the appropriate jural entity against which suits
21
22
against the MCSO must be brought. (Doc. 1630, at p. 2, ll. 10-13.) In reaching this
23
conclusion, the Court failed to address the analysis required under McMillian v. Monroe
24
25
1983 liability cannot be imputed without it. Id. Furthermore, the decision in Hounshell
26
27
28
established that Arizonas Counties are without authority to discipline the employees of
5
1
2
their Sheriffs for misconduct. Hounshell v. White, 220 Ariz. 1, 202 P.3d 466 (App.
2008). Without such authority, the County cannot exert meaningful control over the
3
4
Sheriff, which goes directly to a key issue the Supreme Court in McMillian held must be
weighed in determining whether the liability of a sheriff can be imputed to the County
under Monell v. Dept of Social Svcs., 436 U.S. 658, 694 (1978).
In McMillian, the Supreme Court of the United States concluded that Sheriff Tate
8
9
of Monroe County, Alabama, represented the State of Alabama and was not a
10
policymaker for Monroe County when acting in the realm of law enforcement.
11
McMillian at 783. While a similar outcome is sought by the County here, what is
12
important for purposes of this motion is that the process by which the outcome was
13
14
reached in McMillian was rooted in a careful analysis of state law, an analysis that is yet
15
to occur in the present litigation. Id. Of note, the MCSOs status as a non-jural entity
16
was specifically noted as an issue of first impression in Arizona by the Braillard Court,
17
and that court did not speak to the analysis required under McMillian. Braillard v.
18
Maricopa Cty., 232 P.3d 1263 (Ariz. Ct. App. 2010). Therefore, the issue of whether
19
20
Arizona Counties are the appropriate jural entities for Arizona sheriffs and their deputies
21
with respect to their activities in the area of law enforcement, as determined by a proper
22
McMillian analysis, is also a matter of first impression for the Arizona courts. The fact
23
that the Arizona courts have yet to address this question presents a compelling reason to
24
25
certify to the Arizona Supreme Court the question of whether the Sheriff, in the
26
performance of law enforcement functions, is acting on behalf of the County or the State.
27
28
1
2
3
4
indisputably is a matter of state law. The McMillian Court expressly indicated that a
main principle guiding its decision was that . . . [its] inquiry is dependent on an analysis
of state law. McMillian at 786, citing Jett v. Dallas Independent School Dist., 491 U.S.
701, 737 (1989). In response to Petitioners concern that a state-by-state analysis would
8
9
10
11
12
13
14
result in sheriffs being characterized differently in different states, the Court responded:
[W]hile it might be easier to decide cases arising under 1983 and Monell
if we insisted on a uniform, national characterization for all sheriffs, such
a blunderbuss approach would ignore a crucial axiom of our government:
the States have wide authority to setup their state and local governments
as they wish. Understandably, then, the importance of counties and the
nature of county government have varied historically from region to
region, and from State to State. Id. at 795 (emphasis added).
15
There can be no doubt, therefore, that courts are to analyze the laws of each state
16
when faced with issues pertaining to the relationship between a sheriff, the county in
17
which the sheriff serves, and the State itself. The Supreme Court performed an extensive
18
analysis of Alabama law, including the Alabama Code, relevant case law, and the
19
20
21
historical development of those provisions, and the interpretation given them by the
22
Alabama Supreme Court . . .. Id. at 787-92. It also cited key factors in support of its
23
conclusion, the most significant of which are present here, including that: (a) Alabama
24
25
sheriffs are granted their law enforcement authority by State statute; (b) counties are
26
granted no such authority; (c) county commissions, the governing bodies of Alabama
27
counties, have no authority to instruct their sheriffs how to carry out their law
28
1
2
3
4
enforcement functions; and (d) Alabama counties cannot be held liable for the acts of
their sheriffs under a respondeat superior theory. Id. at 789-91.
Further, the Supreme Court stated that . . . our understanding of the actual
the definition of the officials functions under relevant state law. Id. at 786; See Regents
of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) ([The] federal question can be
8
9
10
11
12
answered only after considering the provisions of state law that define the agencys
character).
If this Court concludes that it cannot give full recognition to the Countys rights as
a party litigant in this action, it must come to grips with the fact that Arizona law on the
13
14
question of on whose behalf the Sheriff and his deputies act when performing law
15
enforcement functions is, at best, murky. In these circumstances, the question should be
16
submitted to the one body with the authority to make a definitive pronouncement on the
17
18
Ariz. Rev. Stat. Ann 12-1861 provides for questions of Arizona law to be
19
20
21
22
23
24
25
26
27
28
1
2
The appropriate entity to be held legally liable for the actions of the MCSO is both
an open question of Arizona law and determinative of the cause pending before this
3
4
Court, insofar as claims asserted against the County are concerned. Absent controlling
Arizona precedent that the County is the appropriate jural entity for the MCSO in the area
of law enforcement, a precedent that the Arizona courts have yet to set, certification to
8
9
10
III.
Additionally, the County would like to make mention of the fact that the Court
11
12
incorrectly stated in its Order that [n]o party has sought to dismiss the County as a
13
separate entity. The County has repeatedly taken the position that as long as Sheriff
14
Arpaio is included as a party to the litigation, the County is an unnecessary party and
15
ought to be dismissed.
16
17
As one example, in the July 20, 2015, Status Conference, counsel for the County
18
explained the reasoning for its position that the Court would not be precluded from
19
dismissing the County from the proceeding. Specifically, counsel explained that it read
20
the Ninth Circuits decision in Melendres II as essentially ordering the County be added
21
22
as a party, but also saying that that if the County is a party, the sheriff is not needed.
23
Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015) (Melendres II). Counsel for the
24
County explained that, in its view, the reverse is also true: if the Sheriff is a party to the
25
litigation, the County is not needed. Therefore, the Court could find that the County is
26
27
28
not a necessary party and dismiss it. (Exhibit D, Status Conf. Tr., July 20, 2015, at p. 55,
9
1
2
l. 4 p. 56, l. 6). Thus, the Court, in its ruling on the Countys Motion for Recognition,
overlooked the fact that the County has, in fact, sought dismissal from the litigation.
CONCLUSION
4
5
For the reasons stated herein, the County respectfully requests that the Court
reconsider its Order concluding that the County is the appropriate jural entity against
which suits against the MCSO must be brought or, in the alternative, certify to the
8
9
10
Arizona Supreme Court the question of whether the County is the appropriate jural entity
to be sued for actions of the MCSO.
11
12
13
14
/s/Richard K. Walker
By
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
CERTIFICATE OF SERVICE
2
3
I hereby certify that on March 14, 2016, I electronically filed Defendant, Maricopa
County, Arizonas Motion for Reconsideration of the Courts February 26, 2016 Order
or, in the Alternative, for Certification of Question of Law to the Arizona Supreme Court,
6
7
8
with the Clerk of the Court for filing and uploading to the CM/ECF system which will
send notification of such filing to all parties of record.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11