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Case 2:07-cv-02513-GMS Document 1688 Filed 05/27/16 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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DEFENDANT MARICOPA COUNTY,
ARIZONA’S MEMORANDUM IN
RESPONSE TO COURT’S ORDER OF
MAY 13, 2016 (DOC. 1677)

vs.

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CASE NO: 2:07-CV-02513-GMS

Joseph. M. Arpaio, et. Al.,

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Defendants.
In the Court’s 162 page Findings of Fact issued May 13, 2016 (Doc. 1677)

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(“Findings”), it invited the parties “to file a brief addressing the matters set forth above

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[in the Findings], their views on the appropriate relief, or any other matters which they

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desire to bring to the attention of the Court.” Doc. 1677 at ¶ 912. The Court limited any

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memorandum to be filed by Defendant MARICOPA COUNTY, ARIZONA (“the

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County”), to 10 pages. Id. at 162, ¶ 6. Following are the issues about which the County

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wishes and is in position to address the Court at this time.1

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The short period of time between the issuance of the Court’s findings and the deadline
set for the parties’ submissions (two weeks), has significantly limited the County’s ability
to digest and consider fully the implications of the Court’s extensive findings. Further,
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Case 2:07-cv-02513-GMS Document 1688 Filed 05/27/16 Page 2 of 11

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As the Court is aware, the Order to Show Cause was issued on February 12, 2015,
when the County had not been a party to this case for more than five years. See October

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13, 2009, Order dismissing claims against the County (Doc. 194); Order granting motion

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to show cause (Doc. 880). Sheriff Arpaio and four other non-party employees of the

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Maricopa County Sheriff’s Office (“MCSO”) were ordered to show cause why they

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should not be held in contempt based on certain specified acts and omissions, primarily

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having to do with the Court’s preliminary injunction issued on December 23, 2011, the

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Sheriff’s and MCSO’s discovery responses in the course of the litigation, the conduct of

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certain MCSO Internal Affairs investigations, and actions taken by MCSO in the wake of

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oral Orders issued by the Court on May 14, 2014. Doc. 880.

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I. At Least Two Paragraphs In The Court’s Findings Referencing The County
Embody Factual Assertions That Are Clearly Erroneous.
While the Court has made it clear that it does not wish to entertain responses to the

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Findings at this juncture, the County is compelled to point out that the Findings include at

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least two references to the County – one direct, and one by implication - that are clearly

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erroneous, in that they are at odds with the record evidence. First, in Paragraph 76 of the

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Findings, the Court states:

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the Court’s limitation on the County’s memorandum to 10 pages, precludes much in the
way of discussion of the Findings, of appropriate relief, or of any other matters the
County might like to bring to the attention of the Court. Accordingly, this submission is
not intended, and should not be construed, as an exhaustive recitation of the County’s
concerns about the Findings and their implications, nor should the County’s omission of
matters not raised herein be understood to imply a waiver by the County of its right to
raise and/or challenge such matters either on appeal or at another appropriate point in
proceedings before this Court.
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Case 2:07-cv-02513-GMS Document 1688 Filed 05/27/16 Page 3 of 11

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On January 31, 2012, Chief Deputy Sheridan was present at a meeting of
the Maricopa County Board of Supervisors at which the Board discussed
with the County Attorney the preliminary injunction granted by this Court,
and the County’s appeal of that injunction. (Doc. 1389 at Tr. 1107-1110,
1113:6-11; Ex 2878).
Doc. 1677 at ¶ 76 (emphasis added).
By the time of the meeting referenced in Paragraph 76, however, the County had
not been a party to the action for some 27 months. See Doc. 194. There thus was no

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occasion in January of 2012 for any discussion of an appeal by the County. In any event,

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the appeal that was taken from the Court’s preliminary injunction Order was filed on

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behalf of the Sheriff and MCSO, not the County. See Melendres v. Arpaio, 695 F.3d 990,

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994 (9th Cir. 2012).

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Nor can the portions of the record cited by the Court in support of its Findings in

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Paragraph 76 be fairly construed to suggest that any appeal on behalf of the County was

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discussed at the Board of Supervisors meeting on January 12, 2012. While the cited

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portions of the trial transcript clearly indicate there was discussion of an appeal at the

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meeting, there is absolutely no indication that there was any contemplation of an appeal
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to be taken by the County. Similarly, Exhibit 2878, the minutes from the January 12,

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2012 meeting, contains no reference to an appeal taken or to be taken on behalf of the

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County. See Ex. 2878 at 9. The minutes do reflect that there was discussion of the fact

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that the Maricopa County Attorney’s Office (“MCAO”) had “filed an injunction [sic] to

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appeal” a portion of this Court’s ruling. At the time, however, MCAO was serving as co-

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counsel of record to the Sheriff and MCSO, not the County. See Melendres v. Arpaio,

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695 F.3d 990, 994 (9th Cir. 2012) (Thomas P. Liddy of MCAO listed as co-counsel).

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Case 2:07-cv-02513-GMS Document 1688 Filed 05/27/16 Page 4 of 11

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At Paragraph 275 of the Findings, the Court states:
Further, as of the first day of the evidentiary hearing, Maricopa County had
not yet produced additional responsive documents that were ordered by the
Court in February. (Doc. 1017 at Tr. 20-27.)
Findings at ¶ 275.
Here again, the County was not a party to this action in February 2015.
Accordingly, the documents at issue in February 2015 were documents within the

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possession, custody, or control of the Sheriff and MCSO. See Order of February 12,

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2015 (Doc. 881); Plaintiff’s Motion for Expedited Discovery (Doc. 862). It is therefore

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inaccurate to suggest that the County had failed to produce any documents it had been

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ordered to produce in February of 2012.

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These matters may seem to be of little moment, given the larger issues dealt with

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in the Findings. Nevertheless, the County respectfully requests that the Court correct its

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findings in Paragraphs 76 and 275 to conform them more accurately to the record.

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II. The County Cannot Be Held Responsible For Funding Remedies Tailored To
Address Willful Or Intentional Contemptuous Misconduct.

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The Findings include conclusions that the Sheriff and some of the other alleged

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contemnors willfully and/or intentionally defied this Court’s Orders in some respects.

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The Court also found that some of the conduct it found to be contemptuous had been

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motivated in part by Sheriff Arpaio’s belief that it would boost his chances of reelection.

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Findings at ¶¶ 58-65.

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Remedial orders providing compensatory relief in contempt proceedings are

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analogous to tort judgments. Coleman v. Espy, 986 F.2d 1184, 1192 (8th Cir. 1993)
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(contempt action is “essentially a tort action”); Parker v. U.S., 153 F.2d 66, 71 (1st Cir.

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1946) (fine in civil contempt proceeding “not unlike a tort judgment for money damages

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caused by wrongful conduct”).

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Most courts that have considered the question of respondeat superior liability

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under Arizona law, including the federal courts, have concluded that Arizona counties’

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lack of control over sheriffs in their performance of statutorily-mandated law

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enforcement duties precludes county liability for the tortious acts of sheriffs and their

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deputies.

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Stricker v. Yavapai County, 2012 WL 5031484, *3 (D. Ariz. 2012) (County not liable for

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See, e.g., Kloberdanz v. Arpaio, 2014 WL 309078, *3-4 (D. Ariz. 2014);

acts of physical abuse by Sheriff’s deputies because claim arose out of deputies’ law

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enforcement duties); Nevels v. Maricopa County, 2012 WL 1623217, *3 (D. Ariz. 2012);

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Guillory v. Greenlee County, 2006 WL 2816600, at *12 (D. Ariz. 2006) (“Under A.R.S.

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§ 11–251, the Greenlee County Board of Supervisors’ powers and duties to supervise its

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county officers, including the Sheriff, does not extend to having control over the Sheriff

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in the exercise of statutorily mandated duties, and therefore, the doctrine of respondeat
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superior does not apply to impose liability on the County.”); see also Fridena v.

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Maricopa County, 18 Ariz. App. 527, 530, 504 P.2d 58, 61 (1972) (citation omitted)

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(County, “having no right of control over the Sheriff or his deputies in service of [a] writ

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of restitution, [could] not [be held] liable under the doctrine of respondeat superior for
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the Sheriff’s torts.”).

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Moreover, Arizona’s “counties have no power to engage in any activities of any

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nature unless there is a statute so authorizing them expressly or by strong implication,

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Case 2:07-cv-02513-GMS Document 1688 Filed 05/27/16 Page 6 of 11

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and . . . they are only liable for the acts of their agents when liability is expressly imposed
by statute or follows as a matter of law from the exercise of powers clearly conferred on

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the county.” Hartford Accident & Indemnity Co. v. Wainscott, 41 Ariz. 439, 445-46, 19

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P.2d 328, 330 (1933); see also Associated Dairy Products v. Page, 68 Ariz. 393, 395, 206

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P.2d 1041, 1043 (1949) (boards of supervisors have only powers expressly, or by

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necessary implication, delegated to them by Arizona Legislature); Mohave County v.

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Mohave-Kingman Estates, Inc., 120 Ariz. 417, 420, 586 P.2d 978, 981 (1978) (actions of

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boards of supervisors “accomplished by a method unrecognized by statute have been

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described as without jurisdiction and wholly void.”).

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A.R.S. § 11-981(A) provides authority for certain of Arizona’s counties to

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purchase insurance, or to establish self-insurance arrangements to provide coverage for

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specified loss contingencies. A.R.S. § 11-981(A)(2) authorizes, in pertinent part, such

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insurance or self-insurance arrangements to provide “[p]ayment of any property loss

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sustained or lawful claim of liability or fortuitous loss made against the . . . county . . . .

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or its elected or appointed officials, employees or officers if such elected or appointed
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official, employees or officers are acting within the scope of employment or authority.”

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A.R.S. § 11-981(B)(4) further provides that those counties with self-insurance trust funds

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may “[n]ot make any expenditure from the trust fund for any purpose not specified in this

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article.”
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The Sheriff and his deputies are required, as a condition of their office, to take an

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oath swearing that they will “support the Constitution of the United States and the

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Constitution and laws of the State of Arizona.” A.R.S. § 38-231(E) and (F). Willful and

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intentional defiance of lawful court orders will ordinarily be inconsistent with this oath

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and, as such, cannot be said to be “within the scope of employment or authority” of the

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oath-taker. It is at least arguable that, under controlling Arizona law, willful and/or

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intentional contemptuous conduct is not within “the scope of employment or authority”

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of County officials and employees. It also seems likely courts construing and applying

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Arizona law would find that there can be no respondeat superior liability for Arizona’s

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counties for any such conduct.

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In addition, A.R.S. § 11-410 expressly prohibits the use of county resources “for

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the purpose of influencing the outcomes of elections.” To the extent the Court’s Findings

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suggest that this has occurred, such conduct would also be beyond the scope of

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employment or authority of any officer who engaged in it.

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In sum, the County is without lawful authority under Arizona law to provide

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funding for measures that are imposed to remedy willful or intentional misconduct,

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including conduct constituting willful or intentional contempt.

For this reason, the

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County respectfully requests that the Court, in fashioning remedies to address the
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contemptuous conduct it has found, specifically and clearly delineate which remedies are

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and are not imposed because of conduct the Court has found to be willful and/or

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intentional contempt. This will facilitate the County’s assessment of which remedies, if

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any, for which it can lawfully take funding responsibility.
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Case 2:07-cv-02513-GMS Document 1688 Filed 05/27/16 Page 8 of 11

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III.

The County’s Position With Regard To The Proposed Victims
Compensation Scheme.

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As the Court is aware, the County has been engaged for several months in

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negotiations with the other parties regarding a plan for providing compensation to

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individuals who may have been detained in violation of the Court’s preliminary

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injunction. A copy of the proposal as it now stands, with issues as to which the parties

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have not agreed identified, is attached hereto as Exhibit “A.” If the Court adopts some

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version of the program the parties have negotiated and imposes it as a remedy for

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contemptuous conduct that it finds was neither willful nor intentional, the County

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recognizes and accepts its responsibility to provide reasonable funding for the program.

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As indicated above, however, to the extent the proposal or any aspects of it were to be

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imposed as a remedy for willful or intentional contempt, the County would not have

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within its lawful authority the power to provide funding for any such aspects.

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Putting the funding issue to one side, following is a list of items in Exhibit “A” as

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to which the parties have been unable to reach agreement, with a brief outline of the

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County’s position with respect to those items.

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1. Coverage Period (Ex. “A” at 2). This Court has found (Findings at ¶ 878) that
Plaintiffs do not contend that violations of the preliminary injunction are

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continuing, and there was no evidence adduced of recent detentions in

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violation of any of the Court’s Orders. Accordingly, the County believes that

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eligibility should be limited to detentions that allegedly occurred during the

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period with the preliminary injunction was in effect.

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2. Nature of Detentions Covered (id. at 2 and 5). The only evidence sufficient to

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show any actual violations of the preliminary injunction that has been adduced

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Case 2:07-cv-02513-GMS Document 1688 Filed 05/27/16 Page 9 of 11

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relates to traffic stops.

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program, should be tailored to address only the types of violations that have

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been established.

The remedy, and accordingly eligibility for this

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3. Notice Plan Budget (id. at 3). Plaintiffs have, in the past week, increased their

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proposal from $125,000 to $200,000. If this program is imposed as a remedy

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for contemptuous conduct that was neither willful nor intentional (see

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discussion supra), undersigned counsel is authorized to offer funding for the
notice budget in the amount of $125,000.
4. Date Range of Alleged Detention Required (id. at 4 and 6). The County
believes that claimants should be required to prove with reasonable accuracy

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when they claim to have been unlawfully detained. Requiring them to specify
the date within a five-day date range seems imminently reasonable.
5. Time Limit for MCSO Response to Claims (id. at 7). The County defers to the

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Sheriff’s position on what is a reasonable timeframe to permit MCSO to do the

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necessary research to respond to claims.

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6. Damages Limit for Physical Harm/Severe Emotional Distress (id. at 8). The

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County believes that, given all other aspects of the program designed to make

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it claimant-friendly, limited potential damages recoveries for physical and

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severe emotional harm to $7,500 is reasonable.

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7. Detentions by ICE/CBP (id. at 8-9). Once an individual is surrendered to the

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custody of ICE/CBP, the Sheriff and MCSO have no control over how long

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they are detained by those agencies. Accordingly the County believes this
program should not provide compensation for periods of detention over which
ICE/CBP have sole control.
8. Compensation for Detentions (id. at 11). The compensation rates proposed by

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Plaintiffs would compensate individuals at a rate that far exceeds even those

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charged by Covington & Burling’s lawyers, and it is calculated to provide

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claimants with a windfall. Defendants’ proposal is much more reasonable at

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$500 for the first hour, and $35 per 20 minute increment thereafter ($105/hr.)

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is much more reasonable. In addition, they would provide compensation from

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the first minute of the detention, regardless of the presumption that the first 20

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minutes or so of a traffic stop is reasonable and lawful.

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9. Confidentiality (id.). The County cannot agree to a term that would effectively

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exempt documents otherwise subject to disclosure under Arizona’s Public

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Records Law. The County acknowledges, however, this Court’s authority to

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enter a protective order that would effectively provide for such an exemption,
and would not oppose such an order.
10. Attorney’s Fees (id.)

This program has been designed to be sufficiently

claimant friendly that most, if not all, claimants should not need a lawyer.
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Providing for the recovery of fees will mean that the program will be burdened
with unnecessary costs.
IV. Conclusion
The Court’s Findings suggest that it may be contemplating some remedies that

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could place enormous burdens on Maricopa County’s taxpayers if, and to the extent, such

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remedies are ones for which the County bears any responsibility for funding. The County

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respectfully requests that the Court, in fashioning remedies, bear in mind the inherent

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unfairness of saddling taxpayers with substantial financial burdens for the misdeeds of a
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few individuals the Court has found to have engaged in contemptuous conduct. The

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County also respectfully points out that there are important constitutional principles

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placing significant limitations on the powers of the federal courts to impose remedies on

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State and local governmental institutions that intrude upon the sovereign prerogatives of
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those institutions. See Rizzo v. Goode, 423 U.S. 362 (1976).

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DATED: May 27, 2016
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WALKER & PESKIND, PLLC

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By: /s/ Richard K. Walker
Richard K. Walker, Esquire
Charles W. Jirauch,
Esquire
16100 N. 71st Street, Suite 140
Scottsdale, Arizona 85254-2236
Attorneys for Defendant Maricopa County,
Arizona

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CERTIFICATE OF SERVICE

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I hereby certify that on May 27, 2016, I electronically filed Defendant, Maricopa
County, Arizona’s Memorandum in Response to Court’s Order of May 13, 2016 (Doc.

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1677), with the Clerk of the Court for filing and uploading to the CM/ECF system, which
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will send notification of such filing to all parties of record.

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/s/ Michelle Giordano

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