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Case 2:07-cv-02513-GMS Document 1893 Filed 11/22/16 Page 1 of 11

1 Cecillia D. Wang (Pro Hac Vice)
cwang@aclu.org
2
ACLU Foundation
3 Immigrants’ Rights Project
39 Drumm Street
4 San Francisco, CA 94111
5 Telephone: (415) 343-0775
Facsimile: (415) 395-0950
6
Kathleen E. Brody
7
kbrody@acluaz.org
8 Daniel J. Pochoda
dpochoda@acluaz.org
9 Brenda Muñoz Furnish
10 bmfurnish@acluaz.org
ACLU Foundation of Arizona
11 3707 N. 7th Street, Suite 235
Phoenix, AZ 85014
12
Telephone: (602) 650-1854
13 Facsimile: (602) 650-1376

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15 Attorneys for Plaintiffs (additional attorneys
for Plaintiffs listed on next page)
16

17 IN THE UNITED STATES DISTRICT COURT
18 FOR THE DISTRICT OF ARIZONA

19 Manuel de Jesus Ortega Melendres, ) CV-07-2513-PHX-GMS
et al., )
20 )
21 Plaintiffs, ) PLAINTIFFS’ OPPOSITION TO
) EMERGENCY MOTION TO SUSPEND
22 v. ) PROCEEDINGS PENDING
) RESOLUTION OF MOVANTS’
23
Joseph M. Arpaio, et al., ) MOTION FOR RECUSAL OF THE
24 ) COURT AND ITS MONITOR (DOC.
Defendants. ) 1879)
25 )
26 )
)
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Case 2:07-cv-02513-GMS Document 1893 Filed 11/22/16 Page 2 of 11

1 Additional Attorneys for Plaintiffs:
2
Andre I. Segura (Pro Hac Vice) Julia Gomez (Pro Hac Vice)
3 asegura@aclu.org jgomez@maldef.org
ACLU Foundation Mexican American Legal Defense and
4 Immigrants’ Rights Project Educational Fund
5 125 Broad Street, 17th Floor 634 South Spring Street, 11th Floor
New York, NY 10004 Los Angeles, CA 90014
6 Telephone: (212) 549-2676 Telephone: (213) 629-2512
Facsimile: (212) 549-2654 Facsimile: (213) 629-0266
7

8 Anne Lai (Pro Hac Vice) James B. Chanin (Pro Hac Vice)
alai@law.uci.edu jbcofc@aol.com
9 401 E. Peltason, Suite 3500 Law Offices of James B. Chanin
10 Irvine, CA 92697 3050 Shattuck Avenue
Telephone: (949) 824-9894 Berkeley, CA 94705
11 Facsimile: (949) 824-0066 Telephone: (510) 848-4752
Facsimile: (510) 848-5819
12

13 Stanley Young (Pro Hac Vice) Tammy Albarran (Pro Hac Vice)
syoung@cov.com talbarran@cov.com
14 Covington & Burling LLP Lauren E. Pedley (Pro Hac Vice)
15 333 Twin Dolphin Drive, Suite 700 lpedley@cov.com
Redwood Shores, CA 94065 Covington & Burling LLP
16 Telephone: (650) 632-4700 One Front Street
Facsimile: (650) 632-4800 San Francisco, CA 94111
17
Telephone: (415) 591-7066
18 Facsimile: (415) 955-6566

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Case 2:07-cv-02513-GMS Document 1893 Filed 11/22/16 Page 3 of 11

1 Plaintiffs oppose Defendant Arpaio and non-parties Sheridan and Sousa’s (“Movants”)
2 Emergency Motion to Suspend Proceedings (Doc. 1879).1 Movants seek to stay all further
3 proceedings by the Court and activities by the Monitor pending the resolution of their Motion
4 for Recusal of the Court and Its Monitor (“Recusal Motion”) (Doc. 1878). As Plaintiffs have
5 previously stated and as explained further below, Movants’ Recusal Motion is exceedingly
6 untimely—complaining of certain communications that occurred more than a year ago (and in
7 some cases more than two)—and bound to fail on the merits. Movants should not be permitted
8 to now disrupt and delay the ongoing compliance efforts by the Maricopa County Sheriff’s
9 Office (“MCSO”), as well as the Court’s and the Monitor’s ability to oversee those efforts,
10 pending the resolution of the Recusal Motion.
11 Movants set forth three reasons for their stay request: that the Court should stay
12 proceedings whenever the Court’s impartiality is questioned; that a stay would preserve the
13 status quo; and that Movants will be irreparably injured because of the Court’s ongoing
14 violation of their rights. These purported justifications are not only factually and legally
15 inaccurate, but also fall short of even remotely supporting the extraordinary remedy of
16 suspending all proceedings.
17 Further, a stay of compliance proceedings at this point in time would harm the public
18 interest and increase the risk that members of the Plaintiff class will suffer continued
19 constitutional violations. As Plaintiffs explained during the November 10 status conference, the
20 Monitor is currently overseeing MCSO’s efforts to address indicia of both individual and
21 systemic issues of biased policing. It is critical that these matters be addressed as soon as
22 possible, and any delay in the efforts through the suspension of activity by the Monitor or the
23 Court would only permit problematic behavior to continue.
24 The Court should deny Movants’ motion for a stay of proceedings.
25 I. No Stay Is Warranted Pending Resolution of Movants’ Untimely Recusal Motion
26 1
As a threshold matter, Movants have not set forth any grounds on which non-parties
Sheridan and Sousa have standing to move for a stay of proceedings. Movants seek only
27 prospective relief against further proceedings by the Court and the Monitor. These non-
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parties have no standing to intervene on that basis.

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1 Movants have made no attempt to address the fact that the requested stay is based only on
2 a recusal motion that is patently untimely. Given that Movants were aware of the
3 communications underlying their Recusal Motion for well over a year, and in many cases well
4 over two years, failed to raise these issues in a timely fashion, and continued voluntarily to work
5 with the Monitor over that same period of time, Movants should not be permitted to now seek a
6 stay of proceedings pending resolution of that untimely motion.2
7 As Plaintiffs will show in their opposition to be filed, Movants’ pending Recusal Motion
8 should be denied under controlling Ninth Circuit precedent. As previously explained by the
9 Court, timeliness is a threshold requirement for recusal motions in the Ninth Circuit. July 10,
10 2015 Order Denying Motion for Recusal, Doc. 1164 at 15; see also Molina v. Rison, 886 F.2d
11 1124, 1131 (9th Cir. 1989) (“It is well-established that a motion to disqualify or recuse a judge
12 under 28 U.S.C. § 144 or § 455 must be made in a timely fashion.”); E. & J. Gallo Winery v.
13 Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992). Movants were required to raise these
14 issues at the earliest possible time following the discovery of their potential grounds for recusal,
15 and they failed to do so. See Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991)
16 (describing timeliness as “reasonable promptness after the ground for such a motion is
17 ascertained”); see also First Interstate Bank of Ariz., N.A. v. Murphy, Weir & Butler, 210 F.3d
18 983, 988 n.8 (9th Cir. 2000) (“[R]ecusal issues must be raised at the earliest possible time after
19 the facts are discovered.”).
20 In their pending Recusal Motion, Movants point to ten instances of communication
21 between the Court and the Monitor that Movants now claim are objectionable. All of these
22 communications, however, occurred more than a year ago (some going back as far as April of
23 2014)—before the conclusion of the civil contempt proceedings and the Court’s subsequent
24 findings. Notably, almost all of these communications also occurred before Movants’ previous
25 recusal motion, in which Defendant Arpaio and non-party Sheridan also raised the propriety of
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Although Plaintiffs briefly address both the timeliness and merits of Movants’ Recusal
27 Motion here, Plaintiffs do not intend to waive any opportunity to raise those arguments in
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opposition to that motion itself, which is due December 16, 2016, and will do so.

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1 communications between the Court and the Monitor. That motion was both filed and ruled on
2 nearly a year and a half ago. See Doc. 1117, 1164. In fact, the Court has already addressed two
3 of the complained-about communications cited by Movants’ present Recusal Motion in its order
4 on the previous recusal motion. Doc. 1164 at 20. Indeed, there are only three communications
5 referenced by Movants that occurred after the Court ruled on the previous recusal motion,
6 including one communication from the Monitor in October of 2015 that spoke highly of an
7 MCSO official. But even those occurred over a year before the pending Recusal Motion’s filing
8 and long before the Court’s recent findings of contempt and order of supplemental injunctive
9 relief.
10 Movants have not provided any explanation for waiting one or two years to bring these
11 matters to the Court’s attention. In light of Movants’ extraordinary delay, their motion for stay
12 pending consideration of their Recusal Motion should also be denied. See, e.g., E. & J. Gallo
13 Winery, 967 F.2d at 1295 (finding recusal motion untimely when filed seven months after
14 assignment of case to judge and after adverse ruling); Skokomish Indian Tribe v. United States,
15 410 F.3d 506, 519 (9th Cir. 2005) (upholding denial of recusal motion filed sixteen months after
16 litigant should have been aware of grounds for potential recusal, after the judge “had already
17 ruled on at least fifteen different [pre-trial] motions”); United States v. Rogers, 119 F.3d 1377,
18 1382 (9th Cir. 1997) (finding that a motion filed more than eighteen months after awareness of
19 grounds for disqualification was untimely); Omega Eng’g, Inc. v. Omega, S.A., 432 F.3d 437,
20 448 (2d Cir. 2005) (motion filed seven months after knowledge of grounds for recusal, where
21 litigant “participated in all stages of the litigation [and] gave no indication of any good cause for
22 its delay,” was untimely); Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160,
23 171 (4th Cir. 2014) (where litigant was aware of all facts that formed basis for recusal motion
24 more than a year before filing, the motion was untimely); cf. Preston, 923 F.2d at 733 (noting
25 that a motion filed eighteen months after the judge took over the case and shortly after an
26 adverse ruling was typically untimely, and making an exception only because the litigant
27 learned of the ground for recusal ten days prior to the motion).
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1 In addition to being severe, the untimeliness of Movants’ motion is presumptive. This
2 presumption applies in situations, like the present case, where litigants sit on known information
3 while the court makes intervening rulings and “complain[] only after receiving an adverse
4 decision.” White v. Nat’l Football League, 585 F.3d 1129, 1141 (9th Circ. 2009) (upholding
5 denial of recusal in ongoing enforcement of consent decree under similar circumstances); E. &
6 J. Gallo Winery, 967 F.2d at 1295 (finding a motion untimely where litigants sat on information,
7 to disincentivize “withhold[ing] recusal motions” while the court rules on the merits of the
8 case); United States v. Yonkers Bd. of Educ., 946 F.2d 180, 183 (2d Cir. 1991) (in enforcement
9 of consent decree, finding motion untimely where movant “had several opportunities prior” to
10 seek recusal and failed to do so).
11 Movants’ failure to raise these communications earlier heightens the likelihood that
12 Movants are using this recusal motion for strategic purposes. See Preston, 923 F.3d at 732-33;
13 E. & J. Gallo Winery, 967 F.2d at 1296 (noting that the “unexplained delay suggests that the
14 recusal statute is being misused for strategic purposes”). Here, there is good reason to believe
15 that Movants have sought recusal and moved for a stay for manipulative purposes. Movants
16 lodged their Recusal Motion just as Plaintiffs and Plaintiff-Intervenors sought a status
17 conference for the purpose of asking the Court to impose new deadlines and prospective fines on
18 Defendants in order to compel their long overdue compliance with the Court’s remedial orders.
19 The appearance of additional counsel in the case also does not excuse the delay or dilute the
20 manipulation. Miles v. Ryan, 697 F.3d 1090, 1092 (9th Cir. 2012) (“Although new counsel was
21 substituted . . . there is no reason why” the basis for the recusal motion “could not have been
22 found by the former lawyers or the new ones before the opinion issued.”). Movants appear to
23 have tried to use the Recusal Motion to inject delay and disruption into the Court’s proceedings
24 and MCSO’s compliance efforts.
25 Lastly, Movants’ argument in their Recusal Motion that 28 U.S.C. § 455 does not impose
26 a timeliness requirement when a party seeks recusal from only prospective proceedings is
27 incorrect and unsupported by case law. The Ninth Circuit’s timeliness requirement applies with
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1 equal force here. See, e.g., Skokomish Indian Tribe, 410 F.3d at 519 (upholding district court’s
2 denial of a motion for recusal as untimely, where the litigant moved for recusal prior to trial);
3 White, 585 F.3d at 1136, 1138-41 (upholding the denial of a motion for prospective
4 disqualification as untimely, where the movant sought the district court judge’s prospective
5 recusal).
6 As Movants have known of these communications for more than a year, they are not
7 entitled to a stay of proceedings pending the consideration of their untimely Recusal Motion.
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II. Movants Have Not Met Their Burden for a Stay of Proceedings
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The Court should deny the request for a stay based solely on the fact that the underlying
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Recusal Motion is untimely. In addition, however, Movants have made no showing that they are
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in fact now entitled to suspend the Court’s proceedings or the Monitor’s activities. In evaluating
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whether to grant a motion for stay, courts typically consider: “(1) whether the stay applicant has
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made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will
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be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the
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other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder,
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556 U.S. 418, 426 (2009) (citation and internal quotation marks omitted).3 All four factors
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weigh heavily against any stay of proceedings.
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First, Movants suggest that they are in some way entitled to an automatic stay whenever
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they question the Court’s impartiality. This is not the case. See In re Int’l Bus. Machs. Corp.,
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618 F.2d 923, 925 (2d Cir. 1980) (affirming denial of recusal motion “as both untimely and
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legally insufficient” and district court’s denial of a motion for stay pending review of a recusal
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decision); In re Spirtos, 298 B.R. 425, 433 (Bankr. C.D. Cal. 2003) (“The court is unaware of
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3
Given the current posture of the case, Movants are, in effect, seeking to stay the Court’s
25 first and second supplemental injunctions. As to the first supplemental injunction, the judgment
is final and has largely been upheld by the Ninth Circuit. Melendres v. Arpaio, 784 F.3d 1254
26 (9th Cir. 2015). Relief from that judgment is not properly sought by a recusal motion and a
request for a stay of proceedings. The second supplemental injunction is the subject of a
27 pending appeal, and Movants’ requested stay amounts to a stay of this judgment pending
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appeal, to which the traditional standard applies.

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1 any statute, rule or other authority which would stay [the judge’s] continued administration of
2 the case pending the outcome of a motion for disqualification and [movant] has cited no such
3 authority.”). Indeed, courts routinely consider recusal motions while actively presiding over the
4 case in issue. Skokomish Indian Tribe, 410 F.3d at 519; Kolon Indus., 748 F.3d at 170-72
5 (upholding denial of recusal motion); see generally Kolon Indus. v. E.I. du Pont de Nemours,
6 3:11-cv-00622 (E.D. Va.) (continued litigation and case management during pendency of
7 recusal motion). While this Court did suspend proceedings after Defendant Arpaio and movant
8 Sheridan previously moved for recusal, that motion was filed pursuant to different authority, 28
9 U.S.C. § 144. Although the Court ultimately found that the previous recusal motion was
10 improper (it was Defendants’ second recusal motion pursuant to section 144 and such motions
11 are limited to only one per case), section 144 does appear to require an automatic suspension of
12 proceedings. 28 U.S.C. § 144 (upon the filing of an affidavit, a judge must suspend proceedings
13 and “proceed no further therein”). The grounds for recusal raised in Movants’ current motion do
14 not require any such automatic stay.
15 Second, Movants are likely to fail on the merits of their Recusal Motion. “A party
16 seeking recusal carries a ‘substantial burden’ of overcoming the presumption that a district court
17 is free from bias.” See Order on Recusal, Doc. 1164 at 15 (quoting United States v. Denton, 434
18 F.3d 1104, 1111 (8th Cir. 2006)). In their motion for a stay, Movants do not set forth any
19 argument as to why they are likely to succeed on the merits, except by simply referencing their
20 pending Recusal Motion and stating that the complained-of communications are “plainly
21 prohibited.” Doc. 1879 at 5. Movants’ conclusory assertion of their likelihood of success on the
22 merits is insufficient to warrant a stay. Indeed, communications between the Court and the
23 Monitor in a case like this are not only expected, but necessary. As the Court recognized in
24 denying the prior recusal motion by Movants Arpaio and Sheridan: “The Monitor is an agent of
25 the court and, in this role, has communicated with the Court as necessary to oversee and
26 coordinate Defendants’ compliance with existing judicial orders on the Court’s behalf.” Doc.
27 1164 at 20. Movants have not set forth any impropriety or even the appearance thereof through
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1 these communications. See Blixseth v. Yellowstone Mountain Club, LLC, 742 F.3d 1215, 1220
2 (9th Cir. 2014) (“A judge need not remove himself from all legitimate activity in administering
3 a complex estate simply because he has motions pending.”); In re Brooks, 383 F.3d 1036, 1043
4 (D.C. Cir. 2004) (“[I]t is not surprising that the district judge met many times with the Special
5 Master and the Court Monitor; he had to oversee and to coordinate their efforts on the court’s
6 behalf during four years of complicated and contentious litigation. Keeping a careful inventory
7 of the tasks they had performed appears sensible . . . .”); Yonkers Bd. of Educ., 946 F.2d 180 at
8 183 (denying recusal motion based on communications between judge and court-appointed
9 advisor).
10 Third, Movants are wrong that a stay would “preserve the status quo” and that, if it is not
11 granted immediately, they would continue to suffer unspecified harm from “violations of the
12 recusal statute.” Doc. 1879 at 3. The status quo, in fact, is and has been continuous oversight by
13 the Court and the Monitor for the nearly three years during which MCSO has been under the
14 Court’s remedial orders. The granting of a stay would upend the status quo and permit MCSO
15 officials, several of whom have been held in contempt, to operate without oversight during a
16 time in which compliance is already abysmally slow. Movants also cannot at this point seriously
17 claim that they will be subject to irreparable injury given that they waited in some instances
18 more than two and a half years to raise any of these concerns and can cite to no actual harm
19 during all the intervening time. Further, during this time, Defendant Arpaio and his employees
20 have engaged in voluntary collaborative efforts with the Monitor—above and beyond
21 requirements of the Court’s orders and even after the Recusal Motion was filed.
22 To the contrary, a stay in proceedings at this point will harm both the Plaintiff class and
23 the public’s interests. For example, as the Monitor indicated during the November 10, 2016
24 status conference, he has “considerable concern” about Defendants’ response to the two reports
25 that show biased policing systemically throughout MCSO and by individual officers, and he
26 does “not believe that there has been appropriate intervention” by Defendants, making
27 participation by the Monitor’s team necessary. Doc. 1879-2 at 29. In addition, Defendants
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1 remain significantly out of compliance with other provisions of the Court’s remedial orders, as
2 indicated in the Monitor’s latest report. The public interest thus clearly lies in favor of denying
3 Movants’ request for a stay of proceedings, so that the important compliance work can continue,
4 with the active oversight of the Monitor and the Court. See Melendres v. Arpaio, 695 F.3d 990,
5 1002 (9th Cir. 2012) (“it is always in the public interest to prevent the violation of a party’s
6 constitutional rights”).
7
III. Conclusion
8
The Court should deny Movants’ request for a stay pending its resolution of their Recusal
9
Motion. Movants should not be allowed to impede and delay the ongoing compliance
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proceedings, which are necessary to protect the constitutional rights of the Plaintiff class and
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promote the interests of the public in a public agency’s compliance with court orders.
12

13 RESPECTFULLY SUBMITTED this 22nd day of November, 2016.
14 /s/Kathleen E. Brody
Kathleen E. Brody
15 Daniel J. Pochoda
Brenda Muñoz Furnish
16 ACLU Foundation of Arizona
17 Cecillia D. Wang (Pro Hac Vice)
Andre I. Segura (Pro Hac Vice)
18 ACLU Foundation
Immigrants’ Rights Project
19
Anne Lai (Pro Hac Vice)
20
Stanley Young (Pro Hac Vice)
21 Tammy Albarran (Pro Hac Vice)
Lauren E. Pedley (Pro Hac Vice)
22 Covington & Burling, LLP
23 Julia Gomez (Pro Hac Vice)
Mexican American Legal Defense and
24 Educational Fund
25 James B. Chanin (Pro Hac Vice)
26
Attorneys for Plaintiffs
27
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1 CERTIFICATE OF SERVICE
2
I hereby certify that on November 22, 2016, I electronically transmitted the attached
3
document to the Clerk’s office using the CM/ECF System for filing. Notice of this filing will be
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sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail as
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indicated on the Notice of Electronic Filing.
6
Dated this 22nd day of November, 2016.
7

8 /s/Kathleen E. Brody

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