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Case 2:07-cv-02513-GMS Document 1658 Filed 03/23/16 Page 1 of 16

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Cecillia D. Wang (Pro Hac Vice)
cwang@aclu.org
ACLU Foundation
Immigrants’ Rights Project
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 343-0775
Facsimile: (415) 395-0950

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Daniel J. Pochoda
dpochoda@acluaz.org
ACLU Foundation of Arizona
3707 N. 7th Street, Suite 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376

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Attorneys for Plaintiffs (Additional attorneys
for Plaintiffs listed on next page)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

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

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v.
Joseph M. Arpaio, et al.,

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Defendants.

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CV-07-2513-PHX-GMS

PLAINTIFFS’ OPPOSITION TO
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

Case 2:07-cv-02513-GMS Document 1658 Filed 03/23/16 Page 2 of 16

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Additional Attorneys for Plaintiffs:
Andre I. Segura (Pro Hac Vice)
asegura@aclu.org
ACLU Foundation
Immigrants’ Rights Project
125 Broad Street, 17th Floor
New York, NY 10004
Telephone: (212) 549-2676
Facsimile: (212) 549-2654

Jorge M. Castillo (Pro Hac Vice)
jcastillo@maldef.org
Mexican American Legal Defense and
Educational Fund
634 South Spring Street, 11th Floor
Los Angeles, California 90014
Telephone: (213) 629-2512
Facsimile: (213) 629-0266

Anne Lai (Pro Hac Vice)
alai@law.uci.edu
401 E. Peltason, Suite 3500
Irvine, CA 92697
Telephone: (949) 824-9894
Facsimile: (949) 824-0066

James B. Chanin (Pro Hac Vice)
jbcofc@aol.com
Law Offices of James B. Chanin
3050 Shattuck Avenue
Berkeley, CA 94705
Telephone: (510) 848-4752
Facsimile: (510) 848-5819

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Stanley Young (Pro Hac Vice)
syoung@cov.com
Michelle L Morin (Pro Hac Vice)
mmorin@cov.com
Covington & Burling LLP
333 Twin Dolphin Drive, Suite 700
Redwood Shores, CA 94065
Telephone: (650) 632-4700
Facsimile: (650) 632-4800

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Tammy Albarran (Pro Hac Vice)
talbarran@cov.com
Lauren E. Pedley (Pro Hac Vice)
lpedley@cov.com
Covington & Burling LLP
One Front Street
San Francisco, CA 94111
Telephone: (415) 591-7066
Facsimile: (415) 955-6566

Case 2:07-cv-02513-GMS Document 1658 Filed 03/23/16 Page 3 of 16

TABLE OF CONTENTS

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I.

Factual and Procedural Background................................................................................1

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II.

The County’s Motion for Reconsideration Should Be Denied .......................................3

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The County Failed to Exercise Reasonable Diligence Since April 2015,
and Filed Its Motion Late ....................................................................................3

B.

The Ninth Circuit Has Decided the County’s Status as the Proper Jural
Entity in the Case, and this Court Cannot Reconsider the Ninth
Circuit’s Decision ................................................................................................4

III.

The County’s Motion for Certification to the Arizona Supreme Court Should
Be Denied Because the Arizona Intermediate Appellate Courts Have Issued
Decisions That Are Controlling Precedent ......................................................................5

IV.

Conclusion .......................................................................................................................9

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A.

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Case 2:07-cv-02513-GMS Document 1658 Filed 03/23/16 Page 4 of 16

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TABLE OF AUTHORITIES

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Page(s)

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Cases

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Braillard v. Maricopa Cty.,
232 P.3d 1263 (Ariz. Ct. App. 2010) ............................................................................6, 7, 8

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County. of Los Angeles, Cal. v. Goldstein,
134 S. Ct. 906 (2014) ............................................................................................................9
Flanders v. Maricopa Cty.,
54 P.3d 837 (Ariz. App. 2002) ......................................................................................4, 6, 8
Goldstein v. City of Long Beach,
715 F.3d 750 (9th Cir. 2013) .................................................................................................9
Guillory v. Greenlee Cty.,
No. CV05-352TUC DCB, 2006 WL 2816600 (D. Ariz. Sept. 28, 2006) .............................8
Harris v. Arizona Indep. Redistricting Comm’n,
993 F. Supp. 2d 1042 (D. Ariz. 2014) ...................................................................................6
Lovejoy v. Arpaio,
No. CV09-1912PHX-NVW, 2010 WL 466010 (D. Ariz. Feb. 10, 2010) ............................8
Maricopa County, Arizona v. Melendres,
136 S.Ct. 799 (2016) .............................................................................................................4
McMillian v. Monroe Cty.,
520 U.S. 781 (1997) ..............................................................................................................8
Melendres et al. v. Maricopa County et al.,
__ F.3d __, No. 15-15996, 2016 WL 860355 (9th Cir. Mar. 7, 2016) ......................4, 5, 7, 8

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Melendres v. Arpaio,
784 F.3d 1254 (9th Cir. 2015) ...................................................................................1, 4, 5, 7
Mora v. Arpaio,
No. CV-09-1719-PHX-DGC, 2011 WL 1562443 (D. Ariz. Apr. 25, 2011) .........................8
Northwest Acceptance Corp. v. Lynnwood Equip., Inc.,
841 F.2d 918 (9th Cir. 1988) .................................................................................................3

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Puente Arizona v. Arpaio,
76 F. Supp 3d 833 (D. Ariz. 2015) ........................................................................................8

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Puente Arizona v. Arpaio,
No. CV-14-01356-PHX-DGC, 2015 WL 1432674 (D. Ariz. Mar. 27, 2015) ......................8
Smalley v. Contino,
No. CV12-2524-PHX-DGC, 2013 WL 858103 (D. Ariz. Mar. 7, 2013)..............................8
United States v. Maricopa Cty., Ariz.,
915 F. Supp. 2d 1073 (D. Ariz. 2012) ...................................................................................8
United States v. Rezzonico,
32 F.Supp.2d 1112 (D. Ariz. 1998) .......................................................................................3
Statutes
42 U.S.C. § 1983 .....................................................................................................................6, 9
Ariz. Rev. Stat. § 11-201(A)(6) ...................................................................................................7

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Ariz. Rev. Stat. § 11-251(1) ........................................................................................................6

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Ariz. Rev. Stat. § 11-251(25) ......................................................................................................7
Ariz. Rev. Stat. § 11-251(26) ......................................................................................................7

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Ariz. Rev. Stat. § 11-253 .............................................................................................................6

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Ariz. Rev. Stat. § 11-444(A) .......................................................................................................7

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Ariz. Rev. Stat. § 12-1861 .......................................................................................................5, 9

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Other Authorities

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Fed. R. App. P. 4(a)(4) ................................................................................................................7

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Fed. R. Civ. P. 6 ..........................................................................................................................3

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Local Rule 7.2(g) .........................................................................................................................3

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Plaintiffs respectfully oppose Maricopa County’s (“the County’s”) motion for

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reconsideration, and the County’s alternative motion to certify this question to the

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Arizona Supreme Court (Doc. 1652). The County fails to demonstrate that the

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requirements for either reconsideration or certification are met here, and its repeated

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attempts to avoid responsibility for the actions of its chief law enforcement policymaker,

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Sheriff Arpaio, fly in the face of the decisions of this Court, the Ninth Circuit Court of

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Appeals, and the U.S. Supreme Court. They are inconsistent with Arizona state court

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precedents. They also contradict the County’s own representations in its contract with

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United States Immigration and Customs Enforcement to begin immigration enforcement

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under Section 287(g) of the Immigration and Nationality Act. See Exhibit A. The

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County’s insistence upon repeatedly raising the issue of its status as a jural entity against

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which suits against the Maricopa County Sheriff’s Office (“MCSO”) must be brought—

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an issue that has been settled many times over in both Arizona and federal courts—has

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wasted the time of both the parties and the Court. Reconsideration or certification at this

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late stage, when the County could have requested either long ago, would only result in

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more waste, contrary to law. The motion should be denied.

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I.

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Factual and Procedural Background
Plaintiffs rely on and incorporate the factual background set forth in their

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opposition to the County’s Motion for Recognition, Doc. 1344 at 1-4. Since that

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opposition was filed, this Court has continued to conduct hearings on the civil contempt

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charges against defendants Sheriff Arpaio and others. The evidentiary hearing on

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liability for civil contempt has concluded.

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In light of the County’s untimely motion for reconsideration, Plaintiffs offer

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additional background regarding the issue of the County’s role in these proceedings.

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First, on April 21, 2015, shortly after the Ninth Circuit’s ruling on April 15,

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2015, Melendres v. Arpaio, 784 F.3d 1254, 1260 (9th Cir. 2015) (“Melendres II”), the

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Court ordered the County to be made a party to the lawsuit, pursuant to the Ninth

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Circuit’s ruling, and denied the County’s request to stay the case. Exhibit B, Apr. 21,

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2015 Tr., at 10, 33-38. On April 21, 2015, the Court also orally ruled that Sheriff

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Arpaio’s counsel “has adequately represented and does now represent the interests of the

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County.” Id. at 71-72. Then, at a May 8, 2015 status conference, the County’s counsel

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again appeared to represent the County’s interests, alongside counsel that had thus far

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represented MCSO and counsel for Sheriff Arpaio. Exhibit C, May 8, 2015 Tr., at 5, 13,

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15-17. On July 20, 2015, the County again appeared through its own, separate counsel.

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At that hearing, the Court noted that “Maricopa requested the Ninth Circuit to reconsider

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its ruling [referring to the County’s petition for rehearing en banc] and it didn’t do it, so

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you’re on the hook for whatever Sheriff Arpaio may have done that’s wrong,” and

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further noted that this Court is “bound by . . . the Ninth Circuit Court of Appeals.”

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Exhibit D, July 20, 2015 Tr. at 27-28. Counsel for the County agreed. Id. at 28; see also

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id. at 53-56. The County filed no motion to reconsider, nor any motion for certification

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to the Arizona Supreme Court, following the July 20, 2015 hearing. Nor did the County

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file a motion to reconsider or any motion for certification after the July 31, 2015 hearing,

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at which the issue of the County’s rights as a party were again discussed. Exhibit E, July

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31, 2015 Tr. at 57-60.

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The issue of the County’s status was subsequently raised in hearings on August

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28, 2015 and on September 4, 2015, shortly after the County filed its motion for rights as

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a party litigant on August 28, 2015. Doc. 1272; Exhibit F, Aug. 28, 2015 Tr.; Exhibit G,

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Sept. 4, 2015 Tr. As indicated in the Court’s February 26, 2016 Order, the Court

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effectively ruled on the County’s motion orally several times: first, at the September 4,

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2015 hearing, Exhibit G, Tr. at 47-48; then again on September 24, 2015, Exhibit H, Tr.

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at 1048, again on September 25, 2015, Exhibit I, Tr. at 1480-82, September 30, 2015,

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Exhibit J, Tr. at 1829-30, and on October 2, 2015, Exhibit K, Tr. at 2261. At the October

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2, 2015 hearing, the Court overruled the County’s objection to the Court’s

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characterization of Defendants’ documents as “Maricopa County” documents. The

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County filed no motion to reconsider after any of those hearings or rulings, nor did it ask

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the Court to certify any issue to the Arizona Supreme Court.

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II.

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The County’s Motion for Reconsideration Should Be Denied
Pursuant to Local Rule 7.2(g), a motion for reconsideration must be filed within

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fourteen days of the challenged order, and will be denied “absent a showing of manifest

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error or a showing of new facts or legal authority that could not have been brought to

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[the Court’s] attention earlier with reasonable diligence.” LRCiv. 7.2(g). Motions for

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reconsideration are disfavored and are not the place for parties to raise new points absent

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from their original briefs and arguments. See Northwest Acceptance Corp. v. Lynnwood

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Equip., Inc., 841 F.2d 918, 925–26 (9th Cir. 1988). Nor should such motions ask the

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Court to “rethink what the court has already thought through—rightly or wrongly.” See

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United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D. Ariz. 1998) (quoting Above the

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Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)).

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A.

The County Failed to Exercise Reasonable Diligence Since April
2015, and Filed Its Motion Late

The County filed the present motion for reconsideration on March 14, 2016—

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seventeen days after the Court’s February 26, 2016 Order. The County thus failed to

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comply with the 14-day deadline to file a motion to reconsider under Local Rule 7.2(g).

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Plaintiffs are unaware of any local or federal rule authorizing an extension of that

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deadline. See, e.g., Fed. R. Civ. P. 6 (directing computation of time by counting every

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day, including weekends and holidays).

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But the County’s tardiness goes beyond the failure to comply with L.R. 7.2(g).

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As the Court’s February 26, 2016 Order points out, this Court repeatedly “has ruled on

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this motion both orally and in practicality as this case has proceeded.” Doc. 1630 at 1.

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The County has known of the Court’s position on the County’s status as the proper jural

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entity against which suits against the MCSO must be brought since April 15, 2015, as

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the Court has simply been following the Ninth Circuit’s instruction ever since its

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issuance. Melendres II, 784 F.3d at 1260. The County has had ample opportunity to raise

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every possible aspect of its argument at hearings since that time. Supra 1-3. Each time,

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this Court correctly complied with the Ninth Circuit’s binding ruling on the matter.

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Nothing about the February 26, 2016 Order changed the County’s status, the Court’s

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prior rulings, or the relevant law. Anything that could be argued by the County now

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could and should have been brought to the Court’s attention earlier. Accordingly, the

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motion for reconsideration is untimely and should be denied on this basis.

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B.

The Ninth Circuit Has Decided the County’s Status as the Proper
Jural Entity in the Case, and this Court Cannot Reconsider the
Ninth Circuit’s Decision

The Motion for Reconsideration should also be denied because the County’s
status as the proper jural entity in this case was decided by the Ninth Circuit in
Melendres II, 784 F.3d at 1260, and reaffirmed in Melendres et al. v. Maricopa County
et al., __ F.3d __, No. 15-15996, 2016 WL 860355 (9th Cir. Mar. 7, 2016) (“Melendres
III”). Melendres II and Melendres III are the law of this case. The Ninth Circuit has
already turned back the County’s attempts to relitigate this issue, when it denied the
County’s Petition for Panel Rehearing and En Banc Determination of the Melendres II
decision, see Order, No. 13-16285 (9th Cir. June 26, 2015), ECF No. 87, and when it
rejected the County’s separate appeal in Melendres III. In the latter decision, it found
that “Arizona state law makes clear that Sheriff Arpaio’s law-enforcement acts
constitute Maricopa County policy since he ‘has final policymaking authority.’” Id. at *4
(citing Flanders v. Maricopa Cty., 54 P.3d 837, 847 (Ariz. App. 2002)). The County
raised the same issue in its unsuccessful petition for certiorari as to Melendres II. The
Supreme Court denied certiorari, leaving the Ninth Circuit’s binding decision in place.
See Maricopa County, Arizona v. Melendres, 136 S.Ct. 799 (2016). This Court’s
February 26 Order correctly followed the Ninth Circuit, and of course this Court cannot
“reconsider” the Ninth Circuit’s binding ruling.

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The County’s assertion that it has sought to be dismissed from this proceeding,

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Doc. 1652 at 9, provides no basis to reconsider the February 26, 2016 Order, both

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because the County has never filed a written motion to dismiss, and because, to the

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extent any oral motions to dismiss were made, they were properly denied in light of the

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Ninth Circuit’s binding decision in Melendres II. The County has not met its burden of

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showing “manifest error” by this Court in its February 26 Order, nor any ground on

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which to reconsider it.1

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As noted above, the County is bound, as a matter of law, by the judgments of

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this Court and of the Ninth Circuit against the Sheriff in his official capacity, and thus its

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interests are aligned with the Sheriff’s in this litigation. Moreover, the County has failed

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to identify any actual divergence of interest between the County and the Sheriff in this

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litigation. The comments and questions cited by the County, Doc. 1652 at 4-5, do not

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even raise justiciable issues or represent the denial of anything that the County wanted.

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In the future, the Court can consider the merits of each County request on a situation-by-

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situation basis, just as it has been doing.

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III.

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The County’s Motion for Certification to the Arizona Supreme Court
Should Be Denied Because the Arizona Intermediate Appellate Courts
Have Issued Decisions That Are Controlling Precedent
Arizona’s certification statute, Ariz. Rev. Stat. § 12-1861, states that the

Arizona Supreme Court can answer questions certified to it by a United States district

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The County argues that Melendres II essentially said that “if the County is a party,
the sheriff is not needed,” and that therefore “if the Sheriff is a party to the litigation,
the County is not needed.” Doc. 1652 at 9. In suggesting that this Court might consider
the issue of the Sheriff’s dismissal, Melendres II in fact did not say anything about the
County not being needed. In any case, as Melendres III subsequently observed, “at this
juncture it appears that . . . a dismissal [of the Sheriff] may be unwarranted given the
County’s suggestion that it cannot exercise control over Sheriff Arpaio.” Melendres
III, 2016 WL 860355 at n. 1.

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court if there is a pending issue of Arizona law as to which there is no controlling

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precedent in decisions of the Arizona Supreme Court or intermediate appellate courts,

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and if the Arizona state law question “may be determinative of the cause then pending in

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the certifying court.” See also Harris v. Arizona Indep. Redistricting Comm’n, 993 F.

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Supp. 2d 1042, 1083 (D. Ariz. 2014). This Court should decline the motion for

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certification because these prerequisites are not met.

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The Arizona appellate courts have already decided the issue of whether Sheriff

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Arpaio speaks for the County on law enforcement matters, and therefore of whether

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Maricopa County is the appropriate jural entity to sue for acts of the Maricopa County

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Sheriff’s Office. It is not “an open question of Arizona law.” Dkt. 1652 at 9.

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The Arizona Court of Appeals in 2010 rejected the claim that MCSO was a

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jural entity distinct from Maricopa County and indicated that the County could be sued

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in its stead. Braillard v. Maricopa Cty., 232 P.3d 1263, 1269, 1275 (Ariz. Ct. App.

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2010). Before that, the Arizona Court of Appeals concluded in Flanders v. Maricopa

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Cty., 54 P.3d 837, 847 (Ariz. Ct. App. 2002) that Sheriff Arpaio is a final policymaker

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for Maricopa County for purposes of 42 U.S.C. § 1983 liability in a case relating to jail

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conditions. Braillard and Flanders are controlling precedents of an Arizona appellate

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court.2

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The Arizona statutes reinforce this conclusion, as numerous statutory provisions
indicate that under Arizona law, the Sheriff acts for the County and is subject to the
County’s authority and supervision in myriad ways. See, e.g., Ariz. Rev. Stat. § 11-253
(County’s Board of Supervisors retains the power to require reports from county
officers, including the Sheriff, and to remove and replace them for failure to perform
that duty); id. § 11-251(1) (the County, through the Board of Supervisors, may
“[s]upervise the official conduct of all county officers and officers of all districts and
other subdivisions of the county charged with assessing, collecting, safekeeping,
managing or disbursing the public revenues, see that such officers faithfully perform
their duties and direct prosecutions for delinquencies, and, when necessary, require the
officers to renew their official bonds, make reports and present their books and
(continued…)

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The Ninth Circuit has found those Arizona appellate court decisions controlling,

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not just in its April 2015 Melendres II decision ordering the County’s rejoinder as a

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party, but also in its more recent decision in Melendres III, in which it dismissed as

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untimely the County’s attempted appeal of, inter alia, the same 2013 orders that had

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already been largely affirmed in Melendres II. The Ninth Circuit held in Melendres III

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that, “by filing its notice of appeal on May 15, 2015, Maricopa County’s appeal does not

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come close to complying with the thirty-day deadline” of Fed. R. App. P. 4(a)(4), and

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that the County’s appeal should therefore be dismissed for lack of jurisdiction. Id. at *3.

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Melendres III stated that “[b]ecause of the Arizona Court of Appeals’ decision in

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Braillard, it became necessary that the County be rejoined as a defendant.” Id.

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Melendres III also stated that:

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[U]nder the Supreme Court’s decisions interpreting 42 U.S.C. § 1983,
“[i]f the sheriff’s actions constitute county ‘policy,’ then the county is
liable for them.” McMillian v. Monroe Cty., 520 U.S. 781, 783 (1997)
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)).
Arizona state law makes clear that Sheriff Arpaio’s law-enforcement
acts constitute Maricopa County policy since he “has final policymaking
authority.” Flanders v. Maricopa Cty., 54 P.3d 837, 847 (Ariz. Ct. App.
2002); see Ariz. Rev. Stat. § 11- 441(A) (requiring the sheriff to
“[p]reserve the peace,” “[a]rrest . . . all persons who attempt to commit
or who have committed a public offense,” and “[p]revent and suppress
all affrays, breaches of the peace, riots and insurrections which may
come to the knowledge of the sheriff”).

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accounts for inspection”); id. § 11-201(A)(6) (the county determines the budget of the
Sheriff); id. § 11-444(A) (the county need provide only for “actual and necessary
expenses incurred by the sheriff in pursuit of criminals, for transacting all civil or
criminal business and for service of all process and notices”); id. § 11-251(25) (the
county may “[a]uthorize the sheriff to offer a reward . . . for information leading to the
arrest and conviction of persons charged with crime”); id. § 11-251(26) (the county
may “[c]ontract for the transportation of insane persons to the state hospital or direct
the sheriff to transport such persons”).

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Id. at *4.

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The Ninth Circuit has thus already recognized, in this very case, that controlling

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Arizona appellate court precedents preclude the contention that the County now again

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attempts to raise in this Court in the context of the present motion. The County’s

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repeated and wasteful refusal to acknowledge the controlling import of Braillard and

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Flanders (let alone the Ninth Circuit’s explicit finding of that controlling import in light

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of McMillian) may approach vexatiousness. “There is a ‘point of time when litigation

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shall be at an end.’” Melendres III at *5 (citing Browder v. Dir., Dep’t of Corr., 434 U.S.

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257, 264 (1978)). As to this issue, that time has come.3

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On top of all that, the County’s own 2007 Section 287(g) Memorandum of

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Agreement (“MOA”) with U.S. Immigration and Customs Enforcement confirms that

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the Sheriff acts for the County. See Exhibit A. The MOA “constitutes an agreement

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between the United States Immigration and Customs Enforcement (ICE), a component

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of the Department of Homeland Security (DHS), and Maricopa County, a political

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The County’s intransigence is only accentuated by the fact that other district court
judges, in cases also involving the County, have also reached the same conclusion.
See, e.g., United States v. Maricopa County, et al., No. CV-12-00981 (D. Ariz. June
15, 2015), ECF No. 379 at 16-20 (concluding that the Board of Supervisors is charged
with supervising the Sheriff); Puente Arizona v. Arpaio, 76 F. Supp. 3d 833, 868 (D.
Ariz. 2015) (“Flanders compels the conclusion that Sheriff Arpaio is the final
policymaker for [Maricopa] County on law enforcement matters.”); Puente Arizona v.
Arpaio, No. CV-14-01356-PHX-DGC, 2015 WL 1432674, at *1 (D. Ariz. Mar. 27,
2015) (Maricopa County is liable for the Sheriff’s law-enforcement decisions);
Smalley v. Contino, No. CV12-2524-PHX-DGC, 2013 WL 858103, at *5 (D. Ariz.
Mar. 7, 2013) (same); United States v. Maricopa Cty., Ariz., 915 F. Supp. 2d 1073,
1084 (D. Ariz. 2012) (same); Mora v. Arpaio, No. CV-09-1719-PHX-DGC, 2011 WL
1562443, at *7 (D. Ariz. Apr. 25, 2011) (same); Lovejoy v. Arpaio, No. CV091912PHX-NVW, 2010 WL 466010, at *13 (D. Ariz. Feb. 10, 2010) (same); Guillory
v. Greenlee Cty., No. CV05-352TUC DCB, 2006 WL 2816600, at *4-5 (D. Ariz. Sept.
28, 2006) (Greenlee County is liable for its Sheriff’s law-enforcement decisions).

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subdivision of the State of Arizona.” Id. at ORT 000014 (emphasis added). Neither

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Sheriff Arpaio, nor MCSO, nor the State of Arizona is itself a party to the contract. Id.

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Sheriff Arpaio signed the MOA on behalf of Maricopa County, as its Sheriff—not on

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behalf of the State. Id. at ORT 000023. The acting chair and clerk of the County’s Board

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of Supervisors and a Deputy County Attorney added their own signatures, id. at ORT

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000023-24, thereby in effect agreeing that the Sheriff and MCSO act and speak for the

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County on issues relating to law enforcement and, specifically, immigration

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enforcement.

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For all these reasons, there is no absence of controlling Arizona appellate court

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authority here, and no basis under Ariz. Rev. Stat. § 12-1861 for the Arizona Supreme

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Court to answer the question that the County asked this Court to certify.4

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IV.
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Conclusion
For these, and for the reasons set forth in Plaintiffs’ Opposition to the County’s

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Motion for Recognition, the Motion for Reconsideration or Certification should be
denied.
RESPECTFULLY SUBMITTED this 23rd day of March, 2016.

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The analysis of Arizona state law for purposes of this case must of course take place
in the overall context of federal law under 28 U.S.C. § 1983. “Though [a federal court]
must look at the relevant state law and state courts’ characterizations of that law” to
determine whether an official acts for the County or the State in any given set of
circumstances, “the final determination under 42 U.S.C. § 1983 is a federal law
statutory interpretation question; no deference is due to the ultimate conclusion of the
[state] court that the provisions, taken as a whole, indicate the [official] was a state
actor under Section 1983 for any particular function.” Goldstein v. City of Long Beach,
715 F.3d 750, 760-61 (9th Cir. 2013) cert. denied sub nom. County. of Los Angeles,
Cal. v. Goldstein, 134 S. Ct. 906 (2014). Thus, this Court defers to the Ninth Circuit’s
binding rulings, which are articulations of federal law that are based on that Court’s
interpretations of the relevant state law authorities.

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Case 2:07-cv-02513-GMS Document 1658 Filed 03/23/16 Page 15 of 16

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By: /s/ Michelle L. Morin

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Cecillia D. Wang (Pro Hac Vice)
Andre I. Segura (Pro Hac Vice)
ACLU Foundation
Immigrants’ Rights Project

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Daniel Pochoda
ACLU Foundation of Arizona

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Anne Lai (Pro Hac Vice)

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Stanley Young (Pro Hac Vice)
Tammy Albarran (Pro Hac Vice)
Michelle L Morin (Pro Hac Vice)
Lauren E. Pedley (Pro Hac Vice)
Covington & Burling, LLP

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Jorge M. Castillo (Pro Hac Vice)
Mexican American Legal Defense and
Educational Fund

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James B. Chanin (Pro Hac Vice)
Attorneys for Plaintiffs

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Case 2:07-cv-02513-GMS Document 1658 Filed 03/23/16 Page 16 of 16

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CERTIFICATE OF SERVICE
I hereby certify that on March 23, 2016, I electronically transmitted the attached

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document to the Clerk’s office using the CM/ECF System for filing. Notice of this

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filing will be sent by e-mail to all parties by operation of the Court’s electronic filing

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system or by mail as indicated on the Notice of Electronic Filing.

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Dated this 23rd day of March, 2016.

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/s/
Julie Romanow

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