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Case 2:07-cv-02513-GMS Document 1729 Filed 06/30/16 Page 1 of 12

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John T. Masterson, Bar #007447
Joseph J. Popolizio, Bar #017434
Justin M. Ackerman, Bar #030726
JONES, SKELTON & HOCHULI, P.L.C.
40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
Telephone: (602) 263-1700
Fax: (602) 200-7846
jmasterson@jshfirm.com
jpopolizio@jshfirm.com
jackerman@jshfirm.com
Attorneys for Defendant Joseph M. Arpaio in
his official capacity as Sheriff of Maricopa
County, AZ

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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

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v.

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Joseph M. Arpaio, et al.,
Defendant.

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5060113.1
6/30/16

NO. CV 07-02513-PHX-GMS
DEFENDANT ARPAIO’S REPLY
IN SUPPORT OF BRIEFING RE:
INTERNAL AFFAIRS
INVESTIGATIONS AND
DISCIPLINE

Case 2:07-cv-02513-GMS Document 1729 Filed 06/30/16 Page 2 of 12

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INTRODUCTION1

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The ACLU’s proposed remedies regarding IA investigations and discipline

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at the Maricopa County Sheriff’s Office (“MCSO”) deprive MCSO members of their most

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basic and fundamentally protected constitutional due process rights.

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proposal does not even attempt to protect any interest of the Plaintiff class. Rather, the

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true motivation, the raw politics of personal destruction, oozes from the pages of the

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ACLU’s scurrilous screed. Make no mistake, if the ACLU’s proposals are adopted, they

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mark the ruination of lives and careers of individual people at MCSO (the true desire of

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the ACLU). Thus, Sheriff Arpaio struggles to reconcile the ACLU’s position in its

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briefing regarding IA investigations and discipline at MCSO, given the ACLU’s stated

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goal to “defend and preserve the individual rights and liberties guaranteed to all people in

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this country by the Constitution and laws of the United States.”2 Ironically, it seems the

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ACLU is selective in protecting and enforcing individuals’ rights and civil liberties.

The ACLU’s

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The ACLU’s response characterizes the Sheriff’s arguments in the Joint

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Memorandum of continuing his willful defiance of the Court. Sheriff Arpaio submits that

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proposing just and constitutionally sound injunctive relief from this Court cannot, in any

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way, be evidence of an attitude of resistance to this Court’s orders, as the ACLU suggests.

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Sheriff Arpaio recognizes, in light of the Court’s Findings of Fact, that the Plaintiff class

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has rights that must be vindicated by this Court. However, the proposed remedies by the

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ACLU go too far, requiring the usurpation of MCSO members’ constitutional rights in

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favor of the purported interests of the Plaintiff class. In the interest of MCSO members’

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constitutional rights and a just result commensurate with the violations at issue, Sheriff

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Arpaio requests that the Court reject the ACLU’s proposals and accept his proposals on

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IA investigations and discipline at MCSO.

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Should the Court consider the United States’ untimely filing [Doc. 1721], Sheriff
Arpaio notes that the arguments contained in the United States’ briefing largely parrot the
ACLU’s arguments [Doc. 1720], and are addressed herein.
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https://www.aclu.org/faqs - “What is the ACLU?” (emphasis added).
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I.

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THE COURT SHOULD ISSUE INJUNCTIVE RELIEF THAT IS
CONSTITUTIONAL AND THE LEAST RESTRICTIVE MEANS TO
VINDICATE THE RIGHTS OF THE PLAINTIFF CLASS.

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To vilify the MCSO and pursue its agenda of destroying certain people, the

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ACLU’s briefing largely attempts to create a straw man out of Sheriff Arpaio’s position.

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Sheriff Arpaio’s portion of the joint memorandum [Doc. 1715] in no way stated that the

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Court does not have authority to issue remedies based on its Findings of Fact. [See Doc.

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1720 at 1:4-6]. In fact, Sheriff Arpaio explicitly recognized that the Court possesses that

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power. [See Doc. 1715 at 9:15-18]. Rather, Sheriff Arpaio argued that the Court’s

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issuance of injunctive relief should be restrained by the following three principles: (1)

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injunctive relief should be narrowly tailored to fix the harms actually proven at trial, (2)

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the Tenth Amendment limits a federal district court’s authority to issue injunctive relief

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on state agencies, and (3) state laws, such as the Arizona’s Police Officers Bill of Rights,

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give rise to federal constitutionally protected due process rights.

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principles, Sheriff Arpaio proposed the following remedies related to IA investigations

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and discipline, which he believes vindicates the rights of the Plaintiff class, while

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minimizing the Court’s encroachment upon MCSO member’s constitutional protections:

In light of these

 Electing an independent third party authority, having it
conduct all new or re-opened IA investigations ordered by
this Court, and making final disciplinary determinations
related to those investigations.

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 Having MCSO conduct all other IA investigations that are
not ordered by this
Court, with the Monitor’s supervision
(but not control).3

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 Precluding the Court’s Findings of Fact from being utilized
in any new or reopened IA.

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On the other hand, the ACLU’s proposed remedies far exceed the least restrictive means

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to vindicate the rights of the Plaintiff class, infringe on the Tenth Amendment, and violate

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MCSO members’ due process rights.

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These IA investigations should be subject to the new IA policies and procedures
that will be a part of the Parties’ joint proposal filed with the Court on June 30, 2016.
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A.

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Sheriff Arpaio is correct that a federal court’s civil contempt power,
regardless of the court’s Findings of Fact, should be constrained by the
principle of the least restrictive method to achieve a desired result.

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The ACLU argues that Young v. United States ex rel Vuitton et Fils S.A.,

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481 U.S. 787 (1987) and Rizzo v. Goode, 423 U.S. 362 (1976) do not constrain this Court

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based on its Findings of Fact. Again, the ACLU misses the point of Young, Rizzo, and the

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other authorities cited in Sheriff Arpaio’s portion of the joint brief, which clearly state that

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there are universal federalism principles that command caution when a federal court

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imposes injunctive relief on a state governmental entity.

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At issue before this Court is the scope of the injunctive relief that should be

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ordered to vindicate the rights of the Plaintiff class in light of the Court’s Findings of Fact.

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Sheriff Arpaio’s arguments regarding the limits of the Court’s authority to issue injunctive

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relief can be reduced to a simple point – relief must be as narrowly tailored as possible.

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Case law is legion that injunctive relief issued by a federal court against a state

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governmental agency must be as narrowly tailored as possible. See e.g., Lewis v. Casey,

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518 U.S. 343, 358 (1996); Rizzo, 423 U.S. at 380; Milliken v. Bradley, 433 U.S. 267, 281

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(1977); Clark v. Coye, 60 F.3d 600, 604 (9th Cir. 1995); Planned Parenthood of Heartland

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v. Heineman, 724 F. Supp. 2d 1025, 1037 (D. Neb. 2010). Even this Court has recognized

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this concept in its Order to Show Cause. [See Doc. 880 at 8:17-20]. Moreover, the

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violations found by the Court in its Findings of Fact does not diminish the principle

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espoused in Lewis that a district court’s exercise of its contempt authority should be the

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“least possible power adequate to achieve the end.” 481 U.S. at 801.

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Accordingly, Sheriff Arpaio submits that when this Court determines the

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scope of relief necessary to vindicate the rights of the Plaintiff class, it should ensure that

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any relief ordered is narrowly tailored and the least restrictive means to achieve its end.

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Again, Sheriff Arpaio believes that his proposal regarding IA investigations and discipline

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achieves this constitutionally constrained goal.4

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The ACLU’s characterization that Sheriff Arpaio argued he has a “sovereign
choice” to violate federal court orders is a complete distortion of the argument made by
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B.

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Sherif Arpaio is correct that a federal district court must abide by the
Tenth Amendment.
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Sheriff Arpaio’s Tenth Amendment arguments are not contrary
to controlling federal precedent.

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The ACLU argues, ad nauseam, that the Court has inherent authority to

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invalidate past investigations and order new ones to protect the constitutional rights of the

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Plaintiff class. [See Doc. 1720 at 3:4-5:3]. Sheriff Arpaio never contested the Court’s

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authority to do so in light of its Findings of Fact. Rather, as set forth above, Sheriff

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Arpaio simply argued that federalism principles delimit the Court and require it to impose

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the least restrictive measure possible to achieve the necessary remedy for the Plaintiff

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class. To the extent Sheriff Arpaio relied on Missouri v. Jenkins, 495 U.S. 33, 52 (1990),

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he did so to demonstrate the continued deference that a district court should give to a local

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state government’s attempt to remedy its own internal affairs. It is under this authority

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that Sheriff Arpaio stated that to “reconcile the Court’s view of remedial efforts required

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to restore the Court’s and the community’s confidence in MCSO processes and the

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required latitude afforded to MCSO in handling its internal affairs, [] Sheriff Arpaio

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agrees to vest such authority in an independent objective third party.” [Doc. 1715 at

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11:11-14]. Sheriff Arpaio submits that nothing in the ACLU’s response precludes this

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reasonable proposal (and the ACLU has not argued how this proposal is inadequate).

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2.

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A federal district court may invalidate state laws or court orders
only after a governmental agency has had an opportunity to
implement a remedy and has failed to do so.

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The ACLU fails to recognize that this Court’s May 13, 2016 Findings of

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Fact is the very first time the Court found that MCSO’s IA investigations and discipline

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(at least those referenced during the hearing) are inadequate. Because MCSO has never

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had the opportunity to provide a proposed remedy to these specific violations, even under

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the authorities cited by the ACLU, the Court should abstain from issuing injunctive relief

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that overrides the comity concerns expressed in Sheriff Arpaio’s joint briefing.

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Sheriff Arpaio in the Joint briefing. [See Doc. 1720 at 2:16-20].
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In Stone v. City and County of San Francisco, 968 F.2d 850, 856 (9th Cir.

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1992), the Ninth Circuit upheld the district court’s authority to impose remedies that

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violate state law because the district court explicitly allowed the City of San Francisco

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several opportunities to develop a plan to alleviate overcrowding in its jails and it failed to

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implement one:

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On each occasion that the district court granted the Sheriff
early-release authority or expanded this authority, the City was
given the opportunity to comply or develop a comprehensive
plan to comply. In each case the City failed to develop a plan
to alleviate overcrowding. Notably, the district court never
ordered the City to take any particular steps to solve the
problem. Instead the court allowed the City to consider the
Special Master's recommendations and formulate its own plan.

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Stone, 968 F.2d at 863. The Ninth Circuit held that “[a]gainst this background the initial
early-release and citation-release provisions were valid exercises of federal authority.” Id.
Here, MCSO had no notice that its IA investigation and discipline policies
and procedures were deficient until this Court’s most recent Findings of Fact issued on
May 13, 2016. [Doc. 1677]. It has not yet had an opportunity to implement remedies in
response to the Court’s Findings of Fact, as the city did in Stone; rather it is suggesting
them now, for the very first time. Even the Court in Stone recognized the deference state
governmental agencies are entitled to before it imposes its own remedial relief. Id. at 863
(district court complied with constitutional requirements when it allowed governmental
agency to consider Special Master’s recommendations and formulate its own plan because
“[s]uch a course of action was consistent with comity and institutional competence
concerns that delimit the exercise of the court's equitable discretion. It also was consistent
with the principle that the federal courts “exercise the least possible power adequate to the
end proposed.”) (quotation omitted).5

Thus, before the Court ratifies remedies that

encroach on state sovereignty, it should provide MCSO the opportunity to enact remedies
that address the Court’s Findings of Fact, which it has proposed.
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Finally, the ACLU’s continued reliance on non-binding out of jurisdiction
district court orders, i.e., Plata v. Schwarzenegger and United States v. Jefferson County,
is inapposite.
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3.

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The ACLU has not cited a single case from any jurisdiction where a federal
district court invalidated a merit commission or state court’s determination of discipline
for a member of a state law enforcement agency. The ACLU’s sole authority for its
Rooker-Feldman argument, In re Gruntz, 202 F.3d 1074 (9th Cir. 2000), which involved
collection of child support, is entirely inapposite for the arguments it makes here. In
addition, Sheriff Arpaio fails to see how the imposition of discipline arising out of a state
agency’s IA investigation, protected by state law, and reviewed by a state merit
commission and/or state court, is a matter “exclusively” within the federal court’s
jurisdiction. See Bell v. City of Boise, 709 F.3d 890 (9th Cir. 2013) (Rooker-Feldman
doctrine applies if a plaintiff “alleges a legal error by the state court.”).

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The Court should not be able to invalidate Merit Commission or
State Court decisions under the Rooker-Feldman doctrine.

Regardless, the ACLU’s arguments regarding the Court’s ability to overrule
Merit Commission and State Court rulings amount to a “heads I win, tails you lose”
situation.

In the event the Merit Commission (or an Arizona Court) overturns a

disciplinary decision, the ACLU suggests that this Court, under the pretext that there is an
impediment to the protection of the Plaintiffs’ constitutional rights and the enforcement of
the Court’s orders, should reverse the Merit Commission and order the discipline reimposed. This effectively renders the Arizona state review process useless. Moreover,
the Court’s ability to overthrow the merit commission (and an Arizona court’s ruling)
would directly deny the individual principle his or her uncontested constitutionally
protected due process rights. [See Plaintiff’s Response at 5:22-24 (admitting that “no one
disputes” that MCSO employees have constitutionally protected due process rights in their
continued employment at MCSO)]. That is precisely what the Rooker-Fledman doctrine
is designed to prevent. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284 (2005).

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C.

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The ACLU’s proposed remedies regarding internal investigations and
discipline violates MCSO members’ due process rights.
The ACLU calls for the following remedies, each of which would deprive

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MCSO members of due process protections: (1) a wholesale disregard of the Arizona

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Police Officer’s Bill of Rights, (2) use of the Court’s Findings of Fact as the sole factor in

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determining whether an IA investigation should be sustained or not sustained, and (3) use

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of the Court’s Monitor to conduct IA investigations.

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The ACLU fails to rebut (or even address) Sheriff Arpaio’s argument and
legal authority that the Arizona Police Officer’s Bill of rights creates federally protected
constitutional rights because that statutory scheme contains “particularized standards or
criteria” to create a property interest. Allen v. City of Beverly Hills, 911 F.2d 367, 370
(9th Cir. 1990); see also Board of Regents v. Roth, 408 U.S. 564, 569 (1972);
Wedges/Ledges of California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 62 (9th Cir.
1994); Sanchez v. City of Santa Ana, 915 F.2d 424, 429 (9th Cir. 1990); Association of
Orange Co. Deputy Sheriffs v. Gates, 716 F.2d 733, 734 (9th Cir. 1983). The ACLU’s
argument that state law, such as the Arizona Police Officer’s Bill of Rights, cannot inform
what due process an individual is entitled to is simply wrong. As the Allen Court held:
Property interests, of course, are not created by the
Constitution. Rather, they are created and their dimensions
are defined by existing rules or understandings that stem
from an independent source such as state law—rules or
understandings that secure certain benefits and that support
claims of entitlement to those benefits.

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The Arizona Police Officer’s Bill of Rights absolutely creates
federally protected due process rights.

911 F.2d at 369-70 (emphasis added) (citing Roth, 408 U.S. at 577).

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Accordingly, the Arizona Police Officer’s Bill of Rights clearly establishes

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certain benefits, entitlements, and protections that apply to MCSO members, which this

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Court has accepted (Doc. 795 at 20:24-26), and cannot be ignored by the ACLU because

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it poses an inconvenience or barrier to its desires.

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2.

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The Court’s Findings of Fact should not determine whether a
new or re-opened IA investigation is sustained or not sustained.

The ACLU argues that this Court can re-open or institute new IA
investigations, require the investigator to rubber stamp the Court’s Findings of Fact, and
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move straight to the imposition of discipline that may involve termination of an employee.

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That predetermined conclusion would be an egregious violation of due process rights. See

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Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“the root requirement”

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of the Due Process Clause is “that an individual be given an opportunity for a hearing

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before he is deprived of any significant property interest.”); Arnett v. Kennedy, 416 U.S.

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134 (1974) (holding a public employee could not be dismissed without a full hearing prior

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to termination).

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The ACLU seems to think that it can avoid such issues because the
contempt proceedings discussed certain IA investigations.

Just because certain IA

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investigations were addressed during this Court’s contempt proceedings, however, does

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not mean they were adequately noticed prior to the contempt hearing or fully and

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adequately litigated before the Court. Specifically, the Court’s Order to Show Cause is

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devoid of any mention of the adequacy of MCSO’s IA investigations (either as a whole or

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specific investigations). That is the critical document which provides Defendants with

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notice of the charges against them and the opportunity to prepare a defense. U.S. S.E.C. v.

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Hyatt, 621 F.3d 687, 695 (7th Cir. 2010) (“the show-cause order satisfies the due-process

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notice requirement by giving the nonmoving party notice of his opportunity to respond

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before the substantive request for relief is entertained.”); Whittaker Corp. v. Execuair

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Corp., 953 F.2d 510, 518 (9th Cir. 1992) (“procedural requirements necessary to impose

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criminal contempt were not followed” because “[t]he order to show cause issued by the

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district court did not give Execuair the required notice that a criminal proceeding would

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take place.”); see also Yates v. United States, 316 F.2d 718, 723 (10th Cir. 1963);

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Martinez v. City of Avondale, CV-12-1837-PHX-LOA, 2013 WL 5705291, at *1 (D. Ariz.

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Oct. 18, 2013).6 Accordingly, Sheriff Arpaio asserts that the imposition of discipline for

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Despite Sheriff Arpaio making this argument in the Joint Motion, the ACLU fails
to point to a single sentence in the Court’s OSC [Doc. 880] which put Defendants on
notice that the adequacy of MCSO’s IA investigations (either as a whole or specific
investigations) would be an issue during the contempt proceedings. Even the ACLU’s
request for an order to show cause did not demand the reopening and/or institution of new
IA investigations. [See Doc. 843 at 28:3-18]. Therefore, the ACLU’s argument that
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new or re-opened IA’s based solely on the Court’s Findings of Fact contravenes the very

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core of MCSO members’ constitutional due process rights.

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Sheriff Arpaio explained his position clearly and concisely in the joint

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memo – the Court’s monitor may oversee, but should not conduct IA investigations

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because the Court and its Monitor have repeatedly stated that the Monitor is the Court. It

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is difficult to see how the Monitor could independently reach a conclusion regarding an

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IA investigation that differs from the Court’s Findings of Fact, even if an independent and

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objective analysis of the facts and circumstances in a particular IA investigation calls for

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divergence from the Court’s findings. Moreover, even if the Monitor believed it could do

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so, there is an inherent outward appearance of impropriety that the Court’s Monitor will

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simply “rubber stamp” the Court’s Findings of Fact, no matter the facts or circumstances.

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For these reasons, and in the interest of fair, independent, and objective IA investigations,

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a reasonable and constitutionally sound alternative is to have the Independent Third Party

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conduct any new or re-opened IA investigations deemed necessary and ordered by the

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Court and to have MCSO, with Monitor supervision, conduct regular IA investigations

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that are unrelated to these contempt proceedings.

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II.

The Court’s Monitor should not conduct IA investigations.

EXPERT TESTIMONY ON THE ACLU’S NEW IA INVESTIGATIONS.

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The ACLU proposes that this Court re-open or institute over 20 IA

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investigations. [Doc. 1715 at 5-8]. Sheriff Arpaio submits that expert testimony regarding

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whether the investigations are necessary at all and, if so, how such investigations should

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be conducted (within an acceptable and appropriate standard of care), would be helpful

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and should be considered by this Court before it orders any new IA investigations.

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III.

CHIEF DEPUTY SHERIDAN.

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Although the ACLU minimizes the weight of authority the Court should

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give to Maricopa County Attorney opinion 2016-001 (“MCAO opinion”), it entirely fails

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certain documents and proceedings that occurred after the OSC provided sufficient due
process to Defendants is inapposite.
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to address the merits of the law cited and legal argument provided within the opinion,

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which clearly holds that the Chief Deputy of MCSO is not subject to MCSO’s disciplinary

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matrix and can only be disciplined by the constitutionally elected Sheriff. Rather than

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take the MCAO opinion to task, the ACLU summarily suggests that the Court has

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unrestricted “broad authority to issue injunctive relief to enforce and effectuate its orders

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and protect the rights of the Plaintiff class.” If such unrestricted authority existed, it

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would swallow the Tenth Amendment and the due process clause of the U.S. Constitution.

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Then, without citing a shred of legal authority, the ACLU lustfully calls for

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this Court to terminate Chief Deputy Sheridan. The ACLU’s refusal to agree to the

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reasonable discipline offered by Chief Deputy Sheridan in light of the MCAO’s opinion,7

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and the ACLU’s repeated demand for Chief Deputy Sheridan’s termination, cannot be

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seen as anything but spiteful malevolence fueled by a vengeful rancor.

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CONCLUSION

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Sheriff Arpaio’s arguments regarding the scope of the Court’s injunctive

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relief and his narrowly tailored, constitutionally sound proposals merit consideration and

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adoption by this Court. The ACLU’s proposal ignores any notion of balance in order to

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reach its one and only true goal – the vindictive annihilation of any who may stand in the

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way of the complete subjugation of MCSO and all within. Sheriff Arpaio, therefore,

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respectfully requests that this Court issue an order imposing the remedies suggested in his

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portion of the Joint Memorandum. [Doc. 1715].8

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The Chief Deputy has always maintained that the MCSO disciplinary matrix does
not apply to him, but to propose a reasonable and fair remedy for violations found in the
Court’s Findings of Fact, Chief Deputy Sheridan agreed to submit to the discipline
imposed for IA 543 (a suspension of 40 hours).
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Defendants reserve the right to challenge the Court’s Findings of Fact and any
final injunctive order issued in this Court or on appeal, notwithstanding any consent to, or
agreement with, the Court re-opening old IA investigations, instituting new IA
investigations, or involving an independent third party to oversee these IA investigations
and impose discipline. See Fed.R.Civ.P. 52(a)(5).
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DATED this 30th day of June, 2016.

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JONES, SKELTON & HOCHULI, P.L.C.

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By /s/John T. Masterson
John T. Masterson
Joseph J. Popolizio
Justin M. Ackerman
40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
Attorneys for Defendant Joseph M. Arpaio
in his official capacity as Sheriff of
Maricopa County, AZ

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CERTIFICATE OF SERVICE

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I hereby certify that on this 30th day of June, 2016, I caused the foregoing

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document to be filed electronically with the Clerk of Court through the CM/ECF System
for filing; and served on counsel of record via the Court’s CM/ECF system.
/s/Karen Gawel

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