You are on page 1of 41

Case 2:07-cv-02513-GMS Document 1730 Filed 06/30/16 Page 1 of 8

1

5

Richard K. Walker (SBN 004159)
WALKER & PESKIND, PLLC
16100 N. 71st Street, Suite 140
Scottsdale, Arizona 85254-2236
rkw@azlawpartner.com
Phone: 480/483-6336
Facsimile: 480/483-6337

6

Counsel for Defendant Maricopa County, Arizona

2
3
4

7

IN THE UNITED STATES DISTRICT COURT FOR THE

8

DISTRICT OF ARIZONA

9
10

Manuel de Jesus Ortega Melendres, et al.,

11
12

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

Plaintiffs,
DEFENDANT MARICOPA COUNTY,
ARIZONA’S RESPONSE TO THE
COURT’S AMENDED ORDER OF
JUNE 8, 2016 (DOC. 1708)

vs.

13
14
15

Joseph. M. Arpaio, et. al.,
Defendants.

16

At the hearing on May 31, 2016, this Court expressed skepticism regarding the
17
18

position set forth in the May 27, 2016 response brief of Defendant MARICOPA

19

COUNTY (“the County”) (Doc. 1688 at 4-7) that it lacks authority under Arizona law to

20

provide funding for remedial measures imposed as a result of findings by this Court that

21

certain individuals engaged in conduct constituting intentional and/or willful contempt.

22
23

Transcript of May 31, 2016 Hearing (“Tr.”) at p. 9, l. 21 – p. 14, l. 13. The Court also

24

suggested it would consider alternative language to be proposed by the County to address

25

aspects of the Court’s May 13, 2016 Findings (Doc. 1677) that the County asserts are

26
27
28

1

Case 2:07-cv-02513-GMS Document 1730 Filed 06/30/16 Page 2 of 8

1
2

factually inaccurate. Tr. P. 165, ll. 14-23. The County takes this opportunity to address
both of these issues below.

3
4
5
6
7

I. The County Is Without Authority Under Arizona Law To Fund Remedial
Measures Required To Address Intentional And/Or Willful Misconduct,
And A Federal Court Order Requiring The County To Do That Which Is
Beyond Its Powers Under State Law Would Intrude Impermissibly On
State Sovereign Prerogatives.
As the County has pointed out on numerous prior occasions, it is a principle firmly

8
9

embedded in Arizona law that counties have only such authority as has been delegated to

10

them by the Arizona Legislature. See Doc. 1688 at 5-6; see also Hartford Accident &

11

Indemnity Co. v. Wainscott, 41 Ariz. 439, 445-46, 19 P.2d 328, 330 (1933) (Arizona’s

12

“counties have no power to engage in any activities of any nature unless there is a statute

13
14

so authorizing them expressly or by strong implication, and . . . they are only liable for

15

the acts of their agents when liability is expressly imposed by statute or follows as a

16

matter of law from the exercise of powers clearly conferred on the county.”) (emphasis

17

added). This fundamental principle has never been challenged by any other party to this

18

proceeding.

It is also undisputed with respect to funding for matters pertaining to

19
20

Arizona Sheriffs and employees working under their direction and supervision, the

21

Legislature has authorized, indeed required, that counties provide funding for:

22
23
24
25

. . . 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, and such expenses shall be a
county charge . . . .
A.R.S. § 11-444(A).

26
27
28

2

Case 2:07-cv-02513-GMS Document 1730 Filed 06/30/16 Page 3 of 8

1

With respect to remedies for claims and losses sustained by third parties, the

2

Legislature has authorized Arizona’s counties only to procure insurance or establish a

3
4

self-insurance program to provide:1
[p]ayment of any property loss sustained or lawful claim of liability
or fortuitous loss made against . . . [a county’s] elected or appointed
officials, employees or officers if such elected or appointed officials,
employees or officers are acting within the scope of employment or
authority.

5
6
7
8
9

A.R.S. § 11-981(A)(2). Apart from the inherently limited nature of the language chosen

10

by the Legislature in conferring this statutory authorization, it underscored the fact that

11

the authority conferred was narrowly circumscribed by expressly stating in the same

12

statute that counties with self-insurance trust funds2 may “[n]ot make any expenditure

13
14

from the trust fund for any purpose not specified in this article.” A.R.S. § 11-981(B)(4).

15

To complete the circle, certain of Arizona’s counties are authorized to purchase

16

liability insurance or to create liability trust funds, and this is the only authority conferred

17

on the counties to fund remedies for “any property loss sustained or lawful claim of

18

liability or fortuitous loss” arising out of the conduct of elected or appointed officials

19
20

“acting within the scope of employment or authority.” A.R.S. § 11-981(A)(2). Maricopa

21

County has established a self-insured trust fund under this grant of authority, but the

22

Legislature has expressly prohibited any “expenditure from the trust fund for any

23

As explained in the County’s response brief, Arizona’s counties are not liable under
Arizona law for the tortious conduct of law enforcement officers committed in their
performance of law enforcement functions. Doc. 1688 at 5.
2
Maricopa County is one of the counties authorized by A.R.S. § 11-981 to establish a
self-insurance trust fund, and it has done so. See the currently operative Revised Restated
Declaration of Trust for Maricopa County, Arizona Self-Insured Trust Fund (“Trust
Declaration”), a copy of which is attached hereto as Exhibit “A.”
1

24
25
26
27
28

3

Case 2:07-cv-02513-GMS Document 1730 Filed 06/30/16 Page 4 of 8

1
2
3
4

purposes not specified” in the statute. A.R.S. § 11-981(B)(4).3 This prohibition plainly
would extend to providing compensation arising out of conduct of county elected or
appointed officials not “acting within the scope of employment or authority.”

5

If this Court were to order the County to provide funding for remedies deemed

6

necessary to redress contemptuous conduct that it has found to have been willful and/or

7
8
9

intentional, the Court would be requiring the County to exercise authority the Legislature
has not seen fit to confer upon Arizona’s counties. In effect, then, the Court would be by

10

judicial fiat abrogating or rewriting State law, overriding legislative choices unrelated to

11

this action that are undeniably within the province of State sovereignty, and thereby

12

running afoul of principles of federalism and comity embodied, in part, in the Tenth

13
14

Amendment and the Guarantee Clause (art. IV, § 4) of the United States Constitution.

15

In Rizzo v. Goode, 423 U.S. 362 (1976), a § 1983 action brought against the

16

Mayor and Police Commissioner of Philadelphia with allegations similar in many

17

respects to those in issue in this case, the Supreme Court pointedly admonished:

18

Where, as here, the exercise of authority by a state official is
attacked, federal courts must be constantly mindful of the “special
delicacy of the adjustment to be preserved between federal equitable
power and State administration of its own law.”

19
20
21
22

Id. at 378 (quoting Stefanelli v. Minard, 342 U.S. 117, 120 (1951)). The Rizzo Court

23

rejected the notion, espoused by the district court in that case, that the legal authority of

24

3

25
26
27
28

At the May 31, 2016 hearing, counsel for the Sheriff and the Court were both heard to
say that they “don’t care” what the County’s “self-insurance agreement” says. Tr. at 15.
The contents of the County’s Trust Declaration, however, are beside the point. The Trust
Declaration is relevant only to show that the County exercised the limited authority
conferred by the Legislature to make such a self-insurance arrangement, and the County
is accordingly subject to the terms of that legislative authorization.
4

Case 2:07-cv-02513-GMS Document 1730 Filed 06/30/16 Page 5 of 8

1

federal courts to supervise the functioning of police departments was “well established,”

2

finding that ‘[w]hen it injected itself by injunctive decree into the internal disciplinary

3
4
5
6
7
8
9

affairs of this state agency, the District Court departed from these [governing federalism]
precepts.” Id. at 380.
“The allocation of powers in our federal system preserves the integrity, dignity,
and residual sovereignty of the States. The federal balance is, in part an end in itself, to
ensure that States function as political entities in their own right.” Bond v. U.S., 564 U.S.

10

211, 221 (2011). It is far from apparent how a federal court order requiring the County to

11

exercise authority it does not have under State law is consistent with preservation of the

12

integrity, dignity, and residual sovereignty of the State of Arizona.

13
14
15
16
17
18
19
20

We have emphasized that although the remedial powers of an equity
court must be adequate to the task, . . . they are not unlimited, and
one of the most important considerations governing the exercise of
equitable power is a proper respect for the integrity and function of
local government institutions. Especially is this true where, as here,
those institutions are ready, willing, and – but for the operation of
state law curtailing their powers – able to remedy the deprivation of
constitutional rights themselves.
Missouri v. Jenkins, 495 U.S. 33, 51 (1990).
It is no answer to suggest that any injuries resulting from what this Court has

21
22

found to be contemptuous conduct are injuries that flow from “constitutional torts” and

23

may be redressable under § 1983. What is currently before the Court is not § 1983

24

claims, but fashioning appropriate remedies for conduct found to have been

25

contemptuous. The compensatory relief that has been discussed among the parties and

26
27
28

with the Court is expressly contemplated as an alternative to the assertion and litigation
5

Case 2:07-cv-02513-GMS Document 1730 Filed 06/30/16 Page 6 of 8

1
2

of § 1983 claims. Anyone injured as a result of contemptuous conduct, whether willful,
intentional, or otherwise, may have a claim under § 1983 and, if so, they remain free to

3
4

pursue it unless they choose to waive the right and participate in the victim compensation

5

program that has been proposed to the Court. The fact that that program is intended as an

6

alternative to that course does not convert the contemptuous conduct in issue itself into a

7

violation of § 1983.

8

There is a further problem with any remedy for willful and/or intentional

9
10

contemptuous conduct that would override State law and require of the County the

11

exercise of authority it has not been given. It must be remembered that, during most or

12

all of the period when the conduct the Court has found to have been contemptuous

13
14

occurred, the County was not even a party to this litigation. Plaintiffs like to sound the

15

familiar refrain that the Sheriff was sued in his official capacity, he is the chief

16

policymaker for the County on law enforcement matters,4 and suit against a public

17

official in his official capacity is essentially the same as a suit against the underlying

18

entity. The contempt with which the Sheriff and others have been charged, however, is
19
20

the unsanctioned actions of individuals who, intentionally or otherwise, failed to comply

21

with this Court’s Orders. There has been no evidence adduced that the Sheriff or any of

22

his subordinates were in any way authorized to set policy for the County with regard to

23

compliance with court orders. The conduct at issue, to the extent it was intentional
24
25

and/or willful, was individual and beyond the scope of employment or authority. The

26
27
28

4

As the Court is well aware, the County vigorously disputes this.
6

Case 2:07-cv-02513-GMS Document 1730 Filed 06/30/16 Page 7 of 8

1
2

responsibility for that conduct should be borne by the individuals who engaged in it or, at
most, by the constitutional office of the Sheriff.

3
4
5

I. The Corrections Needed To Make Paragraphs 76 And 275 Of The Court’s
May 13, 2016 (Doc. 1677) Findings Accurate Are Simple And
Straightforward.

6
7

To remedy the inaccuracies in the Court’s Findings pointed out in the County’s

8

responsive brief (Doc. 1688 at 2-4), the County proposes that Paragraph 76 be amended

9

to change “the County’s appeal” to “an appeal.”

10
11
12
13

The County further proposes that

Paragraph 275 be amended by changing the reference to “Maricopa County” to “the
Sheriff.”
DATED: June 30, 2016

14
15

WALKER & PESKIND, PLLC

16
17
18
19
20

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

21
22
23
24
25
26
27
28

7

Case 2:07-cv-02513-GMS Document 1730 Filed 06/30/16 Page 8 of 8

1

CERTIFICATE OF SERVICE

2
3

I hereby certify that on June 30, 2016, I electronically filed Defendant Maricopa

4

County, Arizona’s Response to the Court’s Amended Order of June 8, 2016 (Doc. 1708),

5

with the Clerk of the Court for filing and uploading to the CM/ECF system, which will

6
7

send notification of such filing to all parties of record.

8
9

/s/ Michelle Giordano

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

8

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 1 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 2 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 3 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 4 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 5 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 6 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 7 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 8 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 9 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 10 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 11 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 12 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 13 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 14 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 15 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 16 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 17 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 18 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 19 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 20 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 21 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 22 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 23 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 24 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 25 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 26 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 27 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 28 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 29 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 30 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 31 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 32 of 33

Case 2:07-cv-02513-GMS Document 1730-1 Filed 06/30/16 Page 33 of 33