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Case 2:07-cv-02513-GMS Document 1652 Filed 03/14/16 Page 1 of 11

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Richard K. Walker (SBN 004159)
Charles W. Jirauch (SBN 004219)
WALKER & PESKIND, PLLC
16100 N. 71st Street, Suite 140
Scottsdale, Arizona 85254-2236
rkw@azlawpartner.com
cwj@azlawpartner.com
Phone: 480/483-6336
Facsimile: 480/483-6337
Counsel for Defendant Maricopa County, Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE

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DISTRICT OF ARIZONA

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Manuel de Jesus Ortega Melendres, et al.,
Plaintiffs,

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CASE NO: 2:07-CV-02513-GMS
DEFENDANT MARICOPA COUNTY,
ARIZONA’S MOTION FOR
RECONSIDERATION OF COURT’S
FEBRUARY 26, 2016, ORDER OR, IN
THE ALTERNATIVE, FOR
CERTIFICATION OF QUESTION OF
LAW TO ARIZONA SUPREME
COURT

vs.
Joseph. M. Arpaio, et. Al.,
Defendants.

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(ORAL ARGUMENT REQUESTED)

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In this Court’s February 26, 2016, order (“Order”) regarding Maricopa County’s

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Motion for Recognition of Rights as a Party Litigant (“Motion for Recognition”), the

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Court denied the County’s motion “. . . to the extent that the Motion seeks to limit the

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County for purposes of this lawsuit as being other than the County as a whole sued as the

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appropriate jural entity against which suits against the MCSO must be brought.” (Doc.

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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
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Case 2:07-cv-02513-GMS Document 1652 Filed 03/14/16 Page 2 of 11

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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 Sheriff’s 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:

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The Court will ordinarily deny a motion for reconsideration of an Order
absent a showing of manifest error or a showing of new facts or legal
authority that could not have been brought to its attention earlier with
reasonable diligence. Any such motion shall point out with specificity
the matters that the movant believes were overlooked or
misapprehended by the Court . . . . (emphasis added)

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LRCiv 7.2(g) authorizes a party to file a motion for reconsideration if the party

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believes the court has “overlooked” or “misapprehended” an argument. LRCiv 7.2(g)

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(motion for reconsideration “shall point out with specificity the matters that the movant

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believes were overlooked or misapprehended by the Court”). A court’s failure to address

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a dispositive argument previously raised by a party constitutes grounds for

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reconsideration because the unaddressed argument may be a reason the court’s decision is

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clearly erroneous. See McIntoch v. Maricopa Community Coll. Dist., No. CV-07-0760,

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2008 WL 1286197, at *1 (D. Ariz. May 8, 2009) (court should grant motion for
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reconsideration if the movant “makes a convincing showing that the Court failed to

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consider material facts that were presented to the Court” before its initial decision);

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Motorola, Inc. v. J.B. Rodgers Mechanical Contractors, Inc., 215 F.R.D. 581, 586 (D.

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Ariz. 2003) (same); Saini v. Immigration and Nationalization Service, 64 F. Supp. 2d
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923, 925 (D. Ariz. 1999) (reconsideration appropriate where court “has patently

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misunderstood a party . . . or has made an error not of reason but of apprehension”);

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Lerner v. Sartori, No. CIV 98-1989, 1999 WL 33128002 at *1 (D. Ariz. Apr. 21, 1999)
(same).

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Maricopa County respectfully submits that the Court “overlooked” or

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“misapprehended” the County’s argument regarding the reasons why it is a legal entity

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separate and distinct from the Sheriff and MCSO and, by virtue of that fact, entitled to

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exercise the full rights of a party litigant, including the right to espouse and advocate

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positions in the litigation regardless of their consistency with those taken by any other

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party.

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THE COUNTY’S RIGHTS TO TAKE ITS OWN POSITIONS AS A
FULL-FLEDGED PARTY, IRRESPECTIVE OF POSITIONS
TAKEN BY OTHER PARTIES

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In its Motion for Recognition, the County asked the Court to recognize it is

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“entitled to the full panoply of rights of any other party to this matter, including, inter

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I.

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alia, the right to assert substantive and legal positions irrespective of their consistency
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with those taken by any other party . . .”. (Doc. 1272, at p. 2, at ll. 10-12). In its Order,

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the Court stated that, “[t]he County has . . . been allowed to participate and proceed as a

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separate party, with the exception that, on a few occasions, the Court has upheld

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relevance objections to some of the County’s lines of questioning in light of its status in

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this suit as the appropriate jural entity for the MCSO.” (Doc. 1630, at p.2, ll. 6-9).

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While the County appreciates that the Court has recognized the County’s right to

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participate as a separate party, the Order did not specifically address the central question

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posed by the County’s 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
Court’s Order overlooks the fact that the Court has actually been much more restrictive

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than the Order would suggest in this regard. Three examples are provided below for

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context.

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At the April 23, 2015, Evidentiary Hearing, the Court indicated that “. . . as I think
I’ve indicated more or less clearly since the beginning, I’m not sure that you have

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independent status here other than being, according to the Ninth Circuit order, the

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appropriate party, represented for all practical purposes in this matter by Ms. Iafrate.

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Nevertheless, in order not to prejudice the County, I am allowing . . . you to participate,

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for the time being, in these proceedings.” (Exhibit A, Hearing Tr., April 23, 2015, at p.
613, l. 25 – p. 614, l. 9).

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As another example, at the July 31, 2015, Status Conference, the Court stated,

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“Mr. Walker, last week I think you indicated that you really don’t have any right to

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substantively argue anything different than the sheriff, because while you have no power
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to control the sheriff, and you may or may not agree with him, Maricopa County is bound

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legally and liability-wise by his actions.

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substantive opposition to the admission for pro hac vice of Larry Klayman when the

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And you filed a different – you filed a

sheriff explicitly took no possession [sic] one way or the other. I don’t know that you

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have any authority to do that, do you? . . . you’re a party because you’re going to be

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liable for any judgment, not because you have any substantively different legal right to

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protect.” (Exhibit B, Status Conf. Tr., July 31, 2015, at p. 57, ll. 8-18; at p. 58, ll. 16-18).

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As a final – and perhaps most pointed – example, at the August 7, 2015, In-Court

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Hearing, the Court stated, “. . . I’m really not sure, as it relates to the merits of this

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lawsuit, that you’re in a position to take any position different than the Sheriff’s Office,

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and I think we discussed that last week.” (Exhibit. C, Hearing Tr., Aug. 7, 2015, at p. 37,

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ll. 14-17).

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For the reasons articulated at length in the County’s motion and reply, but not

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addressed in the Order, the County respectfully submits that the Court should reconsider

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its ruling and grant the relief requested – recognition that the County has the full panoply

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of rights enjoyed by all other parties. This necessarily includes the right to determine for

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itself what substantive positions are in the best interest of the County regardless of

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whether these positions coincide with those embraced by the Sheriff.
II.

WHETHER THE COUNTY IS THE APPROPRIATE JURAL
ENTITY FOR ACTIONS BY THE SHERIFF IS A MATTER OF
STATE LAW REQUIRING CAREFUL ANALYSIS UNDER
McMILLIAN

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In the Order, the Court denied the County’s Motion for Recognition “. . . to the

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extent that the Motion seeks to limit the County for purposes of this lawsuit as being

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other than the County as a whole sued as the appropriate jural entity against which suits

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against the MCSO must be brought.” (Doc. 1630, at p. 2, ll. 10-13.) In reaching this

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conclusion, the Court failed to address the analysis required under McMillian v. Monroe

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County, Alabama, 520 U.S. 781 (1997).

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McMillian teaches that control is key and that

§ 1983 liability cannot be imputed without it. Id. Furthermore, the decision in Hounshell

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established that Arizona’s Counties are without authority to discipline the employees of
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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

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Sheriff, which goes directly to a key issue the Supreme Court in McMillian held must be

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weighed in determining whether the liability of a sheriff can be imputed to the County

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under Monell v. Dep’t of Social Svcs., 436 U.S. 658, 694 (1978).

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In McMillian, the Supreme Court of the United States concluded that Sheriff Tate

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of Monroe County, Alabama, represented the State of Alabama and was not a

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policymaker for Monroe County when acting in the realm of law enforcement.

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McMillian at 783. While a similar outcome is sought by the County here, what is

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important for purposes of this motion is that the process by which the outcome was

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reached in McMillian was rooted in a careful analysis of state law, an analysis that is yet

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to occur in the present litigation. Id. Of note, the MCSO’s status as a non-jural entity

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was specifically noted as an issue of first impression in Arizona by the Braillard Court,

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and that court did not speak to the analysis required under McMillian. Braillard v.

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Maricopa Cty., 232 P.3d 1263 (Ariz. Ct. App. 2010). Therefore, the issue of whether
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Arizona Counties are the appropriate jural entities for Arizona sheriffs and their deputies

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with respect to their activities in the area of law enforcement, as determined by a proper

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McMillian analysis, is also a matter of first impression for the Arizona courts. The fact

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that the Arizona courts have yet to address this question presents a compelling reason to
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certify to the Arizona Supreme Court the question of whether the Sheriff, in the

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performance of law enforcement functions, is acting on behalf of the County or the State.

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As in McMillian, whether the County, as opposed to the State of Arizona or some
other entity, is the appropriate jural entity to be sued for actions by the MCSO

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indisputably is a matter of state law. The McMillian Court expressly indicated that a

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main principle guiding its decision was that “. . . [its] inquiry is dependent on an analysis

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of state law.” McMillian at 786, citing Jett v. Dallas Independent School Dist., 491 U.S.

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701, 737 (1989). In response to Petitioner’s concern that a state-by-state analysis would

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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).

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There can be no doubt, therefore, that courts are to analyze the laws of each state

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when faced with issues pertaining to the relationship between a sheriff, the county in

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which the sheriff serves, and the State itself. The Supreme Court performed an extensive

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analysis of Alabama law, including the Alabama Code, relevant case law, and the
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Alabama Constitution, particularly “the constitutional provisions concerning sheriffs, the

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historical development of those provisions, and the interpretation given them by the

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Alabama Supreme Court . . .”. Id. at 787-92. It also cited key factors in support of its

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conclusion, the most significant of which are present here, including that: (a) Alabama
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sheriffs are granted their law enforcement authority by State statute; (b) counties are

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granted no such authority; (c) county commissions, the governing bodies of Alabama

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counties, have no authority to instruct their sheriffs how to carry out their law

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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

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function of a governmental official, in a particular area, will necessarily be dependent on

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the definition of the official’s functions under relevant state law.” Id. at 786; See Regents

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of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“[The] federal question can be

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answered only after considering the provisions of state law that define the agency’s
character”).
If this Court concludes that it cannot give full recognition to the County’s rights as
a party litigant in this action, it must come to grips with the fact that Arizona law on the

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question of on whose behalf the Sheriff and his deputies act when performing law

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enforcement functions is, at best, murky. In these circumstances, the question should be

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submitted to the one body with the authority to make a definitive pronouncement on the

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subject – the Arizona Supreme Court.

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Ariz. Rev. Stat. Ann § 12-1861 provides for questions of Arizona law to be
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certified to the Arizona Supreme Court as follows:
The supreme court may answer questions of law certified to it by the
supreme court of the United States, a court of appeals of the United
States, a United States district court or a tribal court when requested by
the certifying court if there are involved in any proceedings before the
certifying court questions of law of this state which may be
determinative of the cause then pending in the certifying court and as
to which it appears to the certifying court there is no controlling
precedent in the decisions of the supreme court and the intermediate
appellate courts of this state. (emphasis added). Ariz. Rev. Stat. Ann §
12-1861.
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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

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Court, insofar as claims asserted against the County are concerned. Absent controlling

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Arizona precedent that the County is the appropriate jural entity for the MCSO in the area

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of law enforcement, a precedent that the Arizona courts have yet to set, certification to

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the Arizona Supreme Court is warranted.

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III.

THE COUNTY HAS REPEATEDLY SOUGHT ITS DISMISSAL
FROM THIS LITIGATION

Additionally, the County would like to make mention of the fact that the Court

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incorrectly stated in its Order that “[n]o party has sought to dismiss the County as a

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separate entity.” The County has repeatedly taken the position that as long as Sheriff

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Arpaio is included as a party to the litigation, the County is an unnecessary party and

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ought to be dismissed.

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As one example, in the July 20, 2015, Status Conference, counsel for the County

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explained the reasoning for its position that the Court would not be precluded from

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dismissing the County from the proceeding. Specifically, counsel explained that it read

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the Ninth Circuit’s decision in Melendres II as essentially ordering the County be added

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as a party, but also saying that that if the County is a party, the sheriff is not needed.

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Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015) (“Melendres II”). Counsel for the

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County explained that, in its view, the reverse is also true: if the Sheriff is a party to the

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litigation, the County is not needed. Therefore, the Court could find that the County is

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not a necessary party and dismiss it. (Exhibit D, Status Conf. Tr., July 20, 2015, at p. 55,
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l. 4 – p. 56, l. 6). Thus, the Court, in its ruling on the County’s Motion for Recognition,
overlooked the fact that the County has, in fact, sought dismissal from the litigation.

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CONCLUSION

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For the reasons stated herein, the County respectfully requests that the Court

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reconsider its Order concluding that the County is the appropriate jural entity against

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which suits against the MCSO must be brought or, in the alternative, certify to the

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Arizona Supreme Court the question of whether the County is the appropriate jural entity
to be sued for actions of the MCSO.

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DATED: March 14, 2016
By

/s/Richard K. Walker

By

/s/ Charles W. Jirauch

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Attorneys for Maricopa County, Arizona

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CERTIFICATE OF SERVICE

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I hereby certify that on March 14, 2016, I electronically filed Defendant, Maricopa

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County, Arizona’s Motion for Reconsideration of the Court’s February 26, 2016 Order

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or, in the Alternative, for Certification of Question of Law to the Arizona Supreme Court,

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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.

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/s/ Michelle Giordano

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