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Case 2:07-cv-02513-GMS Document 1879 Filed 11/11/16 Page 1 of 7

1 Charles J. Cooper*
Michael W. Kirk*
2 Harold S. Reeves*
COOPER & KIRK, PLLC
3 1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
4 Telephone: (202) 220-9600
Fax: (202) 220-9601
5 ccooper@cooperkirk.com
mkirk@cooperkirk.com
6 hreeves@cooperkirk.com
7 * Admitted pro hac vice
8 John T. Masterson, Bar #007447
Joseph J. Popolizio, Bar #017434
9 Justin M. Ackerman, Bar #030726
JONES, SKELTON & HOCHULI, P.L.C.
10 40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
11 Telephone: (602) 263-1700
Fax: (602) 200-7846
12 jmasterson@jshfirm.com
jpopolizio@jshfirm.com
13 jackerman@jshfirm.com
14 Attorneys for Defendant Joseph M. Arpaio
and non-party Movants Gerard Sheridan and
15 Joseph Sousa
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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., NO. CV 07-02513-PHX-GMS
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Plaintiffs, EMERGENCY MOTION TO
20 SUSPEND PROCEEDINGS
v. PENDING RESOLUTION OF
21 MOVANTS’ MOTION FOR
Joseph M. Arpaio, et al., RECUSAL OF THE COURT AND
22 ITS MONITOR
Defendants.
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24 Defendant Joseph Arpaio and non-party Movants Gerard Sheridan and Joseph Sousa
25 (collectively “Movants”) respectfully request that the Court suspend all proceedings before
26 the Court and the Monitor’s operations pending resolution of Movants’ Motion for Recusal
27 of the Court and its Monitor.
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Case 2:07-cv-02513-GMS Document 1879 Filed 11/11/16 Page 2 of 7

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On October 26, 2016, Movants lodged with this Court a motion requesting that the
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Court recuse itself and its Monitor from future proceedings, due to unauthorized ex parte
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communications between the Court and the Monitor. See Sheriff Arpaio, Chief Deputy
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Sheridan & Lieutenant Sousa’s Motion for Recusal of the Court and Its Monitor (Oct. 26,
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2016), Doc. 1854 (“Motion for Recusal”). That motion also requested that the Court order
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that the Monitor’s operations be suspended immediately pending resolution of the recusal
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motion. Id. at 3, 30. Yesterday, in the status conference, the Court granted Movants’ motion
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to file an oversized brief in support of their recusal motion and gave Plaintiffs and the United
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States until December 16, 2016, to respond. Order (Nov. 10, 2016), Doc. 1877. Also
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yesterday, the Court denied without prejudice Movants’ renewed request to suspend all
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proceedings made orally in open Court, while stating that Movants could renew the request
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in an emergency motion. Id.; see also Transcript of Status Conference at 14:10–14 (Nov.
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10, 2016) (“Nov. 10, 2016 Transcript”) (attached as Exhibit B).
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Movants respectfully reiterate that request in this standalone Emergency Motion. As
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counsel for Movants emphasized in the status conference, Movants do not request that the
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Court stay the duty of Movants and Maricopa County to comply with any of this Court’s
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remedial orders. To the contrary, Movants fully intend to continue their thorough and
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diligent efforts to comply in full with this Court’s injunctions. Movants seek only that the
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Court and its Monitor suspend their activities during the pendency of the recusal motion.
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This Court has previously ruled that proceedings before the Court should be stayed
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while the Court evaluates the merits of a recusal motion. When the Court was presented
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with a motion for recusal earlier in this case, the Court issued an order vacating three
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pending status conferences and staying proceedings before the Court, stating that it “shall
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issue no further orders until the Motion [for Recusal] is fully briefed and/or a ruling has
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been issued.” Order (May 22, 2015), Doc. 1120. At that time, the Court also issued an order
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precluding the Monitor from “conduct[ing] independent investigations within the MCSO
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relating to the subjects” relevant to the recusal motion. Clarification Re Documents 1117
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and 1120 and Vacating Evidentiary Hearing of June 16–19; 23–26, 2015 at 2 (June 1, 2015),
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Doc. 1141. The Court did not suspend the Monitor’s authority to act in ways that “d[id] not
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require further action from this Court,” but that was only because the recusal motion
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pending at the time sought the recusal of the Court but not of the Monitor. Id.
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This Court’s decision was consistent with those of other courts, which recognize that
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when a court’s qualification—its authority to continue sitting on a case—is brought into
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question, the court should suspend all relevant proceedings before it pending the resolution
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of the recusal motion. See, e.g., In re Kensington Int'l Ltd., 353 F.3d 211, 216 (3d Cir. 2003)
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(court of appeals issued an order “staying all proceedings affected by” a party’s recusal
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motion pending resolution of that motion (quotation marks omitted)); In re Martinez-
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Catala, 129 F.3d 213, 217 (1st Cir. 1997) (same). Likewise, courts uniformly recognize that
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recusal motions must be decided promptly, to minimize prejudice to the parties and ensure
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that judicial proceedings are conducted only before a properly qualified judge. See In re
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Kensington, 353 F.3d at 223 (requiring the District Court to conduct expedited discovery
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and promptly decide a recusal motion because delay would prejudice the parties).
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A suspension of proceedings and the Monitor’s activities would preserve the status
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quo and ensure that the alleged violations of the recusal statute will not continue while the
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parties brief, and the Court evaluates, the recusal motion. A suspension would be
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particularly appropriate here because, absent a suspension, the Monitor would be able to
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continue its investigations, and the Court would be able to continue to decide matters, under
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the influence of improper ex parte communications. Indeed, the Court suggested at
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yesterday’s hearing that its ex parte communications with the Monitor about the merits may
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have continued to this day, even after Movants filed their motions concerning the Court’s
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qualification to continue sitting in this case. See Nov. 10, 2016 Transcript at 31:19–23
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(Court stating “I haven’t hid throughout this action, and it’s the basis for Mr. Cooper’s
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motion that I have had consultation with the monitor from time to time. He did inform me
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that he was meeting with the parties to try to resolve a schedule that would be workable on
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the EIS issues.”). Every judicial action taken that is potentially influenced by improper ex
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parte communications increases the prejudice to Movants. As demonstrated at length in the
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recusal motion, such communications are “anathema in our system of justice.” United States
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v. Thompson, 827 F.2d 1254, 1258–59 (9th Cir. 1987).
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At yesterday’s hearing, Plaintiffs’ counsel suggested that the familiar four-part
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equitable stay standard applies to Movants’ request to suspend proceedings. See Nov. 10,
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2016 Transcript at 11:6–8, 15–18. The Court did not apply that standard when it suspended
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proceedings pending its resolution of the recusal motion filed earlier in this case, and that
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standard likewise does not apply now. The four-part standard applies when a court must
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decide whether to stay a remedial order pending further review of that order. See, e.g.,
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Leiva-Perez v. Holder, 640 F.3d 962, 964 (9th Cir. 2011) (four-part test applies to request
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for stay of removal pending review of Board of Immigration Appeals determination that
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petitioner is removable); Haggard v. Curry, 631 F.3d 931, 934–35 (9th Cir. 2010) (stay
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pending appeal of a district court’s decision to release a habeas petitioner); Golden Gate
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Rest. Ass’n v. City & Cty. of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008) (stay
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pending appeal of district court’s judgment enjoining local ordinance). Again, Movants
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have not requested either a stay pending their appeal or that the Court stay its remedial
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orders pending resolution of the recusal motion—they intend to fully continue their efforts
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to comply with the Court’s injunctions. Movants seek only a suspension of any future action
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by the Court and the Monitor—and as discussed, courts (including this Court) have stayed
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proceedings pending the resolution of a recusal motion without regard to the four-factor
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test.
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Even if the four-factor test applies, Movants have satisfied that test. The equitable
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stay standard asks “(1) whether the stay applicant has made a strong showing that he is
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likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent
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a stay; (3) whether issuance of the stay will substantially injure the other parties interested
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in the proceeding; and (4) where the public interest lies.” Golden Gate, 512 F.3d at 1115.
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For reasons explained in their motion for recusal, Movants are likely to succeed on the
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merits because unauthorized ex parte communications about the merits have occurred in
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this case and are plainly prohibited. See Motion for Recusal. Movants will be irreparably
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injured absent a stay because they will suffer an ongoing denial of their statutory and
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constitutional rights. Issuance of the stay will not injure Plaintiffs because Movants will
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continue to comply with the Court’s injunctions even during the stay. Most importantly, the
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public interest strongly supports a stay because the recusal statute concerns itself with actual
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and apparent justice, and public faith in the integrity of the judiciary will be significantly
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undermined if the Court continues to have ex parte merits communications with the
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Monitor, and continues to decide merits-related issues in this case, during the pendency of
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a request that the Court recuse itself for reasons of actual and apparent bias. See Ward v.
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Village of Monroeville, Ohio, 409 U.S. 57, 61–62 (1972) (recognizing that the right to a
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neutral and detached judge in any proceeding is protected by the Constitution and is an
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integral part of maintaining the public’s confidence in the judicial system).
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Finally, Movants emphasize that the Court has an independent obligation to
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determine promptly whether it must recuse itself under 28 U.S.C. § 455. When the standard
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set forth in Section 455 is satisfied, a judge has “an obligation to recuse himself or herself
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without a motion from one of the parties,” because the recusal statute “ ‘is self-enforcing
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on the part of the judge.’ ” E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295
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(9th Cir. 1992) (quoting United States v. Sibla, 624 F.2d 864, 867–68 (9th Cir. 1980)). See
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also United States v. Holland, 519 F.3d 909, 911–13 (9th Cir. 2008); King v. U.S. Dist.
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Court for Cent. Dist. of Cal., 16 F.3d 992, 993 n.2 (9th Cir. 1994) (Reinhardt, J., specially
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concurring). Accordingly, this Court has an obligation to consider promptly whether it must
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recuse itself, even wholly apart from the pendency of Movants’ motion for recusal. Thus,
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even if that motion were withdrawn, the Court would nonetheless have an obligation to
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evaluate its qualification to continue to preside over this case.
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CONCLUSION
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For the foregoing reasons, Movants respectfully request that the Court suspend all
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proceedings and the Monitor’s operations pending resolution of Movants’ pending Motion
4
for Recusal of the Court and its Monitor.
5
6 DATED this 11th day of November, 2016.
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COOPER & KIRK, PLLC
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By Charles J. Cooper
10 Charles J. Cooper*
Michael W. Kirk*
11 Harold S. Reeves*
COOPER & KIRK, PLLC
12 1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
13
* Admitted pro hac vice
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15 JONES, SKELTON & HOCHULI, P.L.C.
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17 By John T. Masterson
John T. Masterson
18 Joseph J. Popolizio
Justin M. Ackerman
19 40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
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Attorneys for Defendant Joseph M. Arpaio
21 and non-party Movants Gerard Sheridan
and Joseph Sousa
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Case 2:07-cv-02513-GMS Document 1879 Filed 11/11/16 Page 7 of 7

1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 11th day of November, 2016, I caused the foregoing

3 document to be filed electronically with the Clerk of Court through the CM/ECF System

4 for filing; and served on counsel of record via the Court’s CM/ECF system.

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/s/ Charles J. Cooper
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Charles J. Cooper
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