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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

14

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
) SHERIFF ARPAIO, CHIEF DEPUTY
22 v. ) SHERIDAN AND LIEUTENANT
) SOUSA’S MOTION FOR RECUSAL OF
23
Joseph M. Arpaio, et al., ) THE COURT AND ITS MONITOR
24 ) (DOC. 1878)
Defendants. )
25 )
26 )
)
27
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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 1913 Filed 12/16/16 Page 3 of 35

1

2 TABLE OF CONTENTS

3 TABLE OF AUTHORITIES ........................................................................................................ ii

4 INTRODUCTION ........................................................................................................................ 1
5 I. The Recusal Motion Must Be Denied as Untimely............................................................. 1
6 A. The Recusal Motion Does Not Meet the Threshold Timeliness
Requirement. ............................................................................................................ 2
7
B. Movants Affirmatively Endorsed and Encouraged Communication
8 Between the Monitor and the Court Outside the Parties’ Presence. ........................ 5
9 C. Movants’ Novel Attempted Distinction Between “Prospective” and
“Retrospective” Relief for Recusal Purposes Has No Basis in Existing
10 Law or Policies Underlying Timeliness. .................................................................. 7
11 II. The Communications Cited by Movants Provide No Grounds for Recusal of the
12
Court or Its Monitor........................................................................................................... 12

13 A. Communications Between the Monitor and the Court Are Proper and
Necessary for Oversight of Defendants’ Compliance. ........................................... 12
14
B. The Communications Cited by Movants Are Not Impermissible Ex Parte
15 Communications and Do Not Require Recusal...................................................... 16

16 C. Movants’ § 455(b)(1) Argument Fails Because They Have Established No
Disputed Evidentiary Facts. ................................................................................... 23
17
D. Movants Demonstrate No Appearance of Partiality by the Court That
18 Would Lead to Recusal Under § 455(a) and No Prejudice. ................................... 24
19 CONCLUSION .......................................................................................................................... 26
20

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Case 2:07-cv-02513-GMS Document 1913 Filed 12/16/16 Page 4 of 35

1 TABLE OF AUTHORITIES
2 Page(s)
3
Cases
4
Jenkins ex rel. Agyei v. Missouri,
5 890 F.2d 65 (8th Cir. 1989) ...........................................................................................................12

6 Aiken Cnty. v. BSP Div. of Envirotech Corp.,
866 F.2d 661 (4th Cir.1989) ..........................................................................................................25
7
In re Anwiler,
8
958 F.2d 925 (9th Cir. 1992) ...........................................................................................................4
9
Bivens Gardens Office Bldg., Inc. v. Barnett Banks of Fla., Inc.,
10 140 F.3d 898 (11th Cir. 1998) .........................................................................................................3

11 Blixseth v. Yellowstone Mountain Club, LLC,
742 F.3d 1215 (9th Cir. 2014) .................................................................................................16, 17
12
In re Brooks,
13 383 F.3d 1036 (D.C. Cir. 2004) ............................................................................................. passim
14
California v. Montrose Chem. Corp. of Cal.,
15 104 F.3d 1507 (9th Cir. 1997) .........................................................................................................9

16 Clifford v. United States,
136 F.3d 144 (D.C. Cir. 1998) .......................................................................................................22
17
Cobell v. Norton,
18 237 F. Supp. 2d 71 (D.D.C. 2003) .................................................................................................17
19 Datagate, Inc. v. Hewlett-Packard Co.,
20 941 F.2d 864 (9th Cir. 1991) .........................................................................................................10

21 E. & J. Gallo Winery v. Gallo Cattle Co.,
967 F.2d 1280 (9th Cir 1992) ..................................................................................................2, 3, 4
22
Edgar v. K.L.,
23 93 F.3d 256 (7th Cir. 1996) .......................................................................................................4, 13
24 In re Fed. Skywalk Cases,
25 680 F.2d 1175 (8th Cir. 1982) .......................................................................................................25

26 First Interstate Bank of Ariz., N.A. v. Murphy, Weir & Butler,
210 F.3d 983 (9th Cir. 2000) .......................................................................................................2, 7
27
28

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Glick v. Edwards,
1
803 F.3d 505 (9th Cir. 2015) ...........................................................................................................7
2
Guenther v. Comm’r,
3 889 F.2d 882 (9th Cir. 1989) (Guenther I) ........................................................................16, 20, 24

4 Guenther v. Comm’r,
939 F.2d 758 (9th Cir. 1991) (Guenther II) ...................................................................................20
5
Hook v. Arizona,
6 120 F.3d 921 (9th Cir. 1997) .........................................................................................................12
7
In re Int’l Bus. Machs. Corp.,
8 618 F.2d 923 (2d Cir. 1980)...........................................................................................................10

9 In re Kensington Int’l Ltd. (Kensington II),
368 F.3d 289 (3d Cir. 2004)...............................................................................................3, 4, 5, 13
10
Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co.,
11 748 F.3d 160 (4th Cir. 2014) .......................................................................................................4, 8
12 Kolon Industries, Inc. v. E.I. DuPont de Nemours & Co. (Kolon Indus. II), 564 Fed.
13 App’x 710 (4th Cir. 2014), .............................................................................................................9

14 Local 28 of Sheet Metal Workers’ Int’l Ass’n v. E.E.O.C.,
478 U.S. 421 (1986) .......................................................................................................................14
15
Melendres v. Arpaio,
16 784 F.3d 1254 (9th Cir. 2015) .......................................................................................................13
17 Nat’l Org. for the Reform of Marijuana Laws v. Mullen,
18 828 F.2d 536 (9th Cir. 1987) ...................................................................................................12, 14

19 O’Rourke v. City of Norman,
875 F.2d 1465 (10th Cir. 1989) .......................................................................................................9
20
Omega Eng’g, Inc. v. Omega, S.A.,
21 432 F.3d 437 (2d Cir. 2005).............................................................................................................9
22 Polaroid Corp. v. Eastman Kodak Co.,
867 F.2d 1415 (Fed. Cir. 1989)........................................................................................................4
23

24 Preston v. United States,
923 F.2d 731 (9th Cir. 1991) .................................................................................................2, 7, 10
25
Skokomish Indian Tribe v. United States,
26 161 F. Supp. 2d 1178 (W.D. Wash 2001) ........................................................................................8

27 Skokomish Indian Tribe v. United States,
410 F.3d 506 (9th Cir. 2005) ...................................................................................................3, 8, 9
28

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In re United States,
1
666 F.2d 690 (1st Cir. 1981) ............................................................................................................4
2
United States v. Alexander,
3 106 F.3d 874 (9th Cir. 1997) .......................................................................................................1, 2

4 United States v. Apple, Inc.,
992 F. Supp. 2d 263 (S.D.N.Y. 2014)............................................................................................12
5
United States v. Cox,
6 225 F.3d 664 (9th Cir. 2000) ...........................................................................................................8
7
United States v. Furst,
8 886 F.2d 558 (3d Cir. 1989).........................................................................................................4, 5

9 United States v. Green,
544 F.2d 138 (3d Cir. 1976)...........................................................................................................20
10
United States v. Holland,
11 519 F.3d 909 (9th Cir. 2008) ...............................................................................................8, 24, 25
12 United States v. Holm,
13 202 Fed. App’x 236 (9th Cir. 2006) ................................................................................................8

14 United States v. N.Y. Tel. Co.,
434 U.S. 159 (1977) .......................................................................................................................14
15
United States v. Rogers,
16 119 F.3d 1377 (9th Cir. 1997) .........................................................................................................2
17 United States v. Sears Roebuck & Co.,
18 785 F.2d 777 (9th Cir. 1986) ...........................................................................................................9

19 United States v. Sibla,
624 F.2d 864 (9th Cir. 1980) .......................................................................................................7, 8
20
United States v. Studley,
21 783 F.2d 934 (9th Cir. 1986) ...........................................................................................................3
22 United States v. Yonkers Bd. of Educ.,
946 F.2d 180 (2d Cir. 1991).................................................................................................9, 13, 22
23

24 White v. Nat’l Football League,
585 F.3d 1129 (8th Cir. 2009) .....................................................................................................3, 9
25
Willner v. Univ. of Kansas,
26 848 F.2d 1023 (10th Cir. 1988) .......................................................................................................9

27
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Statutes
1

2 28 U.S.C. § 455 ........................................................................................................................2, 4, 9, 12

3 28 U.S.C. § 455(a) ...............................................................................................................4, 16, 24, 25

4 28 U.S.C. § 455(b)(1) ....................................................................................................................22, 24

5 28 U.S.C. § 1651(a) .............................................................................................................................14

6 28 U.S.C. § 2106 ....................................................................................................................................9
7 Federal Rule of Civil Procedure 53 .....................................................................................................14
8 Federal Rule of Civil Procedure 60(b) ...................................................................................................4
9
Fed. R. Evid. 706 .................................................................................................................................13
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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1 INTRODUCTION
2 The Court should reject the untimely Motion for Recusal of the Court and Its Monitor
3 (Doc. 1878). For over two years, Movants Arpaio, Sheridan, and Sousa have known about
4 and acquiesced in, and at times have encouraged and invited, communications between the
5 Court and the Monitor—communications that they now cynically cite in their attempt to
6 derail the remediation of the Maricopa County Sheriff’s Office’s (“MCSO”) violations of
7 Plaintiffs’ constitutional rights. It is far too late for them now to make the present motion. In
8 any case, the Court’s communications with the Monitor were proper and constitute no
9 ground for the Court’s disqualification. The Court was required to communicate with the
10 Monitor in order to oversee the Monitor’s work. Movants received notice and opportunity to
11 be heard about the Monitor’s various statements to the Court, and they fail to show
12 prejudice, the appearance of partiality, or the existence of any disputed evidentiary fact
13 relating to those statements. The Court therefore should not recuse itself and should not halt
14 the Monitor’s efforts to assure that the constitutional violations that occurred in this case do
15 not continue.
16 I. The Recusal Motion Must Be Denied as Untimely.
17 Movants’ motion is extremely untimely—based entirely on information known to
18 Movants for more than a year and, in many cases, much more than two years. In fact,
19 Movants were aware of facts underlying the bases for all ten purported grounds for recusal
20 no later than May 2015, before Movants Arpaio and Sheridan filed their first motion to
21 recuse this Court on May 22, 2015, and in many cases much earlier than that. Movants’
22 failure to seek recusal on these bases either in that prior motion1 or for more than fifteen
23 1
As Movants note, they did seek recusal partly on the basis of a Court-Monitor
24 communication that pertained to information regarding posse funding. Doc. 1878 at 28;
Order Denying Motion for Recusal or Disqualification (Doc. 1164) at 20 (denying recusal on
25 this basis). That motion was already litigated and decided; the same facts cannot form part of
26 a new basis for recusal now. See, e.g., United States v. Alexander, 106 F.3d 874, 876 (9th
Cir. 1997) (explaining that “a court is generally precluded from reconsidering an issue that
27 has already been decided by the same court,” pursuant to law-of-the-case doctrine, and
28
listing exceptions where a court has discretion to depart from that rule, none of which apply

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1 months following its denial bars them from doing so now. Movants’ novel theory that
2 untimeliness cannot bar their request for “prospective relief” contradicts Ninth Circuit case
3 law and the tremendous weight of case law from other circuits. Their argument that they
4 twice made objections fails because of other things they said on the record and, in any case,
5 is beside the point given their failure actually to move for recusal in a timely fashion.
6 A. The Recusal Motion Does Not Meet the Threshold Timeliness
7 Requirement.

8 This recusal motion—the third filed in this case and the second attempt to recuse this

9 Court—is flagrantly untimely. Timeliness is a “threshold” requirement for recusal motions

10 made under 28 U.S.C. § 455. E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295

11 (9th Cir 1992); see United States v. Rogers, 119 F.3d 1377, 1380 (9th Cir. 1997) (timeliness

12 as “serious threshold issue”). Movants have decisively failed to meet that requirement,

13 because they have failed to raise their motion with “reasonable promptness after the grounds

14 for such a motion [wa]s ascertained.” Preston v. United States, 923 F.2d 731, 733 (9th Cir.

15 1991); see Order Denying Motion for Recusal or Disqualification (Doc. 1164) at 32; First

16 Interstate Bank of Ariz., N.A. v. Murphy, Weir & Butler, 210 F.3d 983, 988 n.8 (9th Cir.

17 2000) (“[R]ecusal issues must be raised at the earliest possible time after the facts are

18 discovered.”).

19 As Movants set forth in their recusal motion, Movants have known about all of the

20 complained-of communications listed in their motion for more than a year now. Doc. 1878 at

21 20-29.2 At least one complained-of communication in each category identified by Movants

22 here) (citation omitted).
2
23
Movants designate ten categories of communications as problematic. Doc. 1878 at 20-29.
Movants state that they learned of the complained-of communications in category 1 by May
24 2014; in category 2, October 2014; in category 3, March 2015; in category 4, May 8, 2015,
and May 14, 2015; in category 5, October 2014, December 2014, March 2015, and October
25 2015; in category 6, February 2015, April 2015, September 2015, and November 2015; in
26 category 7, May 2014; in category 8, April 2015; in category 9, May 2014; and in category
10, April 2014. Id. Hereinafter, where Plaintiffs refer to specific communications noted in
27 Movants’ motion, Plaintiffs will note into which of the numbered categories the
28
communication falls.

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1 was known to Movants before the filing of their first motion for recusal against this Court.
2 Doc. 1878 at 20-29 (for each category, identifying at least one communication that occurred
3 on or before May 15, 2015); Doc. 1117 (filed May 22, 2015). Such a long delay is in no way
4 the “reasonable promptness” required by the Ninth Circuit. See Skokomish Indian Tribe v.
5 United States, 410 F.3d 506, 519 (9th Cir. 2005) (en banc) (upholding denial of recusal
6 motion on timeliness grounds, after seven-month delay in filing); United States v. Studley,
7 783 F.2d 934, 939 (9th Cir. 1986) (recusal motion untimely where filed “weeks after”
8 alleged bias exhibited); Order Denying Motion for Recusal or Disqualification (Doc. 1164)
9 at 32-33 (denying as untimely prior recusal motion in this case, where purported grounds for
10 recusal were ascertained nineteen months earlier).
11 Movants failed to bring these concerns to the Court’s attention throughout the
12 extensive litigation activity of fifteen months, in which the Court made major rulings adverse
13 to Defendants and the Monitor oversaw ongoing compliance with the ordered injunctive
14 relief. Since the Court’s denial of Movants Arpaio and Sheridan’s May 2015 recusal motion,
15 the Court has made findings of fact as to civil contempt and, as a result, has issued extensive
16 further remedies in a second supplemental injunction. See Doc. 1677; Doc. 1765. In these
17 circumstances, a recusal motion is untimely: a litigant cannot sit on grounds for recusal while
18 the court acts in the interim. See, e.g., Bivens Gardens Office Bldg., Inc. v. Barnett Banks of
19 Fla., Inc., 140 F.3d 898, 913 (11th Cir. 1998) (recusal is not “an insurance policy to be
20 cashed in if a party’s assessment of his litigation risks turns out to be off and a loss occurs”);
21 E. & J. Gallo Winery, 967 F.2d at 1295 (enforcing timeliness is necessary to prevent parties
22 from “withhold[ing] recusal motions, pending a resolution of their dispute on the merits”);
23 White v. Nat’l Football League, 585 F.3d 1129, 1141 (8th Cir. 2009) (“A motion to recuse
24 should not be withheld as a fallback position to be asserted only after an adverse ruling.”).
25 Even the cases on which Movants most heavily rely find it essential that the litigants
26 did not sit on information regarding potential grounds for recusal while the court issued
27 intervening unfavorable rulings. In finding timeliness in “the unique context of” the
28

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1 bankruptcy proceedings at issue in In re Kensington Int’l Ltd. (Kensington II), 368 F.3d 289
2 (3d Cir. 2004), the Third Circuit highlighted that there had been only one intervening ruling,
3 which was favorable to the movant. Id. at 317 & n.27 (describing the single case
4 management order and noting, as well, the “logic” of recusal where parties sought timely
5 recusal on the same grounds in two virtually identical and linked cases). The Third Circuit in
6 United States v. Furst, 886 F.2d 558, 581 (3d Cir. 1989), emphasized that “the asserted bias
7 was germane only” to the forthcoming sentencing rather than to any prior proceedings in the
8 case and that the movant acted quickly after receiving notice of sentencing. Not only do
9 these cases cited by Movants not support their position, but the Third Circuit’s view of
10 timeliness as a factor in reaching the merits rather than as a threshold inquiry is inconsistent
11 with both Ninth Circuit case law and the weight of case law throughout the federal courts of
12 appeals. See, e.g., E. & J. Gallo Winery, 967 F.2d at 1295; see generally Kolon Indus. Inc. v.
13 E.I. DuPont de Nemours & Co., 748 F.3d 160, 169 (4th Cir. 2014) (canvassing § 455
14 timeliness case law and finding that “our sister circuits have overwhelmingly found a timely
15 filing requirement to be implied”).3 Additionally, Edgar v. K.L., 93 F.3d 256, 258 (7th Cir.
16 1996), expressly warned against this type of situation, cautioning that “parties who know of a
17 problem under § 455 but permit the trial to occur may not seek relief later.”4
18 During the more than a year in which Movants have sat on these purportedly improper
19 communications, Defendants have continued with business as usual, frequently appearing
20 3
Movants’ reliance on the Federal Circuit case Polaroid Corp. v. Eastman Kodak Co., 867
21 F.2d 1415 (Fed. Cir. 1989), is similarly inappropriate. Compare id. at 1418 (construing the
Federal Rule of Civil Procedure 60(b) question before the court as “one of fundamental
22 fairness” rather than “mere timeliness or untimeliness”), with In re Anwiler, 958 F.2d 925,
23
930 (9th Cir. 1992) (“Although section 455(a) contains no express time limit, the Ninth
Circuit has held that there is a timeliness requirement inherent in the section.”). Additionally,
24 the Polaroid court was relying on case law of the First Circuit, see Polaroid, 867 F.2d at
1419 n.11, and the First Circuit in fact “requires that a motion for disqualification be timely
25 filed,” In re United States, 666 F.2d 690, 694 (1st Cir. 1981).
4
26 Contrary to Movants’ assertion, Edgar did not “brush[] aside [the] timeliness concern” but
rather found timeliness because the relevant facts came to light only two weeks before the
27 movant sought recusal, making the “passage of time . . . not conclusive.” Edgar, 93 F.3d at
28
257-58.

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1 before this Court and engaging in far-reaching compliance efforts, including extensive and
2 close work with the Monitor. Seeking recusal at this point is disfavored even by the authority
3 set forth by Movants themselves. See Kensington II, 368 F.3d at 312 (explaining that the
4 “judicial process can hardly tolerate” a litigant “holding back, while calling upon the court
5 for hopefully favorable rulings, and then seeking recusal when they are not forthcoming”
6 (citation omitted)); Furst, 886 F.2d at 581.
7 B. Movants Affirmatively Endorsed and Encouraged Communication
8 Between the Monitor and the Court Outside the Parties’ Presence.

9 Movants approved of and encouraged the contacts of which they now complain. The

10 Court noted as early as May 2014 that it communicated with the Monitor, and no objection

11 was raised. See, e.g., Tr. of May 14, 2014 (Ex. 2), at 75, 95 (Court stating, “Well, let me just

12 say, I’m going to meet with the monitor” and informing Defendants that the Monitor will

13 apprise the Court of “any concerns” regarding MCSO’s cooperation in an independent

14 investigation, with no objection by Defendants). Indeed, as Movants recognize, the Court

15 characterized “fairly regular communications with the monitor” as “anticipated by the order”

16 in May 2014; Movants raised no concern with those communications at the time. Id. at 4.

17 Moreover, Movant Arpaio’s attorney explicitly approved of the Monitor conveying

18 information to the Court as early as May 2014. Id. at 73-74 (Movants’ counsel stating, “We

19 welcome [the Monitor’s] involvement. We welcome the Court’s involvement. And we

20 realize we’ve gotta get some information to you, but that’s why we came to your agent is

21 because we understand that’s in his purview.”); id. at 78 (Defendants’ counsel stating, in

22 response to the Court’s statement that the Court “expect[ed] . . . updates” to be provided to

23 the Court by the Monitor, “that’s exactly why I clarified it, because [the Monitor] will get

24 it”). A few months later, Movants’ attorney in fact acknowledged that Movant Arpaio had

25 even asked the Monitor to speak to the Court about the meaning of a statement by Arpaio.

26 Tr. of Oct. 28, 2014 (Ex. 4), at 64 (Movants’ counsel stating, “[T]he full context of the quote,

27 as I understand, was relayed by the sheriff to [the Monitor], and he asked [the Monitor] to

28

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1 relate to you what he meant.”). Indeed, regarding the Court’s examination of documents
2 shown to the Court by the Monitor and associated issues regarding those documents,
3 Movants’ attorney stated that she was “not indicating that [the Court] ha[d] overstepped [its]
4 bounds.” Tr. of May 14, 2015 (Ex. 12), at 55 (Category 4).
5 Far from moving to disqualify the Court, Movants in fact approved of many of the
6 specific communications of which they now complain. See, e.g., Tr. of May 16, 2014 (Ex. 3),
7 at 25-28 (Category 7) (Movants’ counsel stating, “it’s one thing to have your monitor do a
8 report, but if there’s a court order requiring my client to do something . . . ” and failing to
9 object to the Court’s receipt of the report or to any of the communications between the Court
10 and the Monitor before and after the report was made); Tr. of Mar. 20, 2015 (Ex. 8), at 13-
11 15, 17 (Categories 3 and 5) (indicating willingness to discuss changes to the internal
12 investigation process based on facts that the Court obtained from the Monitor, taking
13 opportunity to comment, and also stating to the Court that Movants had nothing more to say
14 “[r]egarding this issue”); Tr. of May 14, 2014 (Ex. 2), at 55-56 (Category 7) (Movants
15 making no objection to Court’s description of information related to the existence of traffic
16 stop recordings and lack of an internal policy conveyed by the Monitor). Movants’ attorney
17 also specifically and affirmatively stated that she “d[id] not have any problem” with the
18 Court’s directive to contact the CIA about the Montgomery documents, after the Court
19 recounted the Monitor’s statements to the Court leading to the issuance of that directive;
20 when the Court sought objections, there were none. Tr. of May 8, 2015 (Ex. 11), at 31
21 (Category 4). There are multiple similar examples. Movants’ attorney and Movant Arpaio’s
22 individual attorney failed to note any problems with the Court’s communications with the
23 Monitor even when related matters were specifically “la[id] out . . . for [their] comment.” Tr.
24 of Dec. 4, 2014 (Ex. 6), at 27-28 (Category 5). Movants did not object to communications
25 regarding the status of internal affairs investigations and Movants’ document production. Tr.
26 of Feb. 26, 2015 (Ex. 7), at 51-52, 54 (Category 6); Tr. of Apr. 21, 2015 (Ex. 9), at 17-20
27 (Category 6); Tr. of Nov. 19, 2015 (Ex. 16), at 6-7 (Category 6). Nor did Movants object at
28

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1 the time to communications about the logistics of community outreach meetings. Tr. of Apr.
2 3, 2014 (Ex. 1), at 40-41, 43-44, 86 (Category 10). Movants cannot now argue that they
3 somehow fulfilled their obligation to raise grounds for recusal “at the earliest possible time.”
4 See First Interstate Bank of Ariz., 210 F.3d at 988 n.8.
5 Movants’ argument that their extraordinarily tardy motion is timely because they
6 “repeatedly preserved the objection,” Doc. 1878 at 7, misconstrues the district court process
7 for seeking recusal and does not exempt them from the affirmative requirement to file a
8 motion for recusal. The mechanism for a litigant to seek recusal in the district court is a
9 motion for recusal. See, e.g., United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980)
10 (explaining that the failure to move for recusal in the trial court increases the litigant’s
11 burden on appeal); Glick v. Edwards, 803 F.3d 505, 508 (9th Cir. 2015) (construing pro se
12 litigant’s filed written objections “clearly stat[ing] the grounds for . . . disqualification” “as a
13 motion for recusal” at the district court). Timeliness requires that the “recusal motion[]
14 should be filed with reasonable promptness” after learning of the purported grounds; the
15 doctrine provides for no tolling mechanism where litigants fail to file a motion but attempt to
16 preserve the issue for appeal. See Preston, 923 F.2d at 733. Moreover, Movants fail to
17 comply with the procedure for seeking replacement of the Monitor where team members
18 have allegedly exceeded the scope of their authority. See Doc. 606, ¶ 125 (requiring Parties
19 to seek cooperative resolution before petitioning the Court in such instances).
20 C. Movants’ Novel Attempted Distinction Between “Prospective” and
21 “Retrospective” Relief for Recusal Purposes Has No Basis in Existing Law
or Policies Underlying Timeliness.
22
1. Timeliness Doctrine Does Not Distinguish Between “Prospective”
23 and “Retrospective” Relief.
24 Movants’ argument, in an attempt to salvage their untimely motion, that timeliness
25 does not apply to motions seeking “prospective relief” has no basis in existing law and is
26 inconsistent with existing recusal practices. In fact, their claim that the Ninth Circuit and
27 other federal courts “ha[ve] consistently distinguished between” motions seeking what
28

7
Case 2:07-cv-02513-GMS Document 1913 Filed 12/16/16 Page 15 of 35

1 Movants characterize as “prospective relief” and “retrospective relief” is simply not true.
2 The Ninth Circuit finds motions for recusal untimely even when further proceedings are
3 contemplated in the district court.5 Skokomish Indian Tribe, 410 F.3d at 519 (upholding on
4 appeal a denial of a motion for recusal as untimely, where the litigant moved for recusal
5 before trial or dispositive briefing in the case, the district court denied the motion for recusal
6 as untimely, and the district court later issued an order granting summary judgment against
7 the movants);6 United States v. Cox, 225 F.3d 664 (9th Cir. 2000) (unpub. op.) (motion for
8 disqualification filed before sentencing untimely); United States v. Holm, 202 Fed. App’x
9 236, 237 (9th Cir. 2006) (unpub. op.) (motion filed after district judge rejected plea
10 agreement untimely).
11

12
5
13 Movants cite a line of Ninth Circuit cases pertaining to the standard for a recusal motion
raised for the first time on appeal for the broad proposition that “courts should reach the
14 merits of substantial recusal motions.” See Doc. 1878 at 4 (citing Toth v. Trans World
Airlines, Inc., 862 F.2d 1381 (9th Cir. 1988), Noli v. Comm’r, 860 F.2d 1521 (9th Cir 1988),
15
and In re Manoa Fin. Co., 781 F.2d 1370 (9th Cir. 1986)). This doctrine requires that
16 appellate courts consider “whether the district court erred in failing sua sponte to” recuse and
is therefore distinct from the standard for recusal motions brought in the district court. See
17 Sibla, 624 F.2d at 868 (9th Cir. 1980); see also United States v. Holland, 519 F.3d 909, 912
18 (9th Cir. 2008) (describing the “greater burden” that a movant in such a position faces
(citation omitted)).
6
19 Movants’ Reply In Support of the Emergency Motion to Suspend Proceedings
misapprehends the significance of Skokomish Indian Tribe to their proposed framework. See
20
Doc. 1896 at 6 (Movants describing the relevant proceedings in Skokomish as the “claims
21 remaining alive following the Ninth Circuit’s decision”). Skokomish Indian Tribe upheld the
district court’s denial of the recusal motion on timeliness grounds. There, the district court
22 contemplated further proceedings at the time of the recusal motion and, in fact, engaged in
23
further proceedings following the denial of that motion. Order Denying Plaintiffs’ Request
for Recusal of Judge Burgess, No. 3:99-cv-05606 (W.D. Wash. May 21, 2001); Skokomish
24 Tribe’s Memorandum in Support of Motion for Partial Summary Judgment, id.(June 28,
2001); Memorandum by Defendants in Support of Motion for Summary Judgment, id. (June
25 28, 2001); Skokomish Indian Tribe v. United States, 161 F. Supp. 2d 1178 (W.D. Wash
26 2001) (ruling on cross-motions for summary judgment three months after denial of recusal
motion as untimely). In evaluating whether the recusal decision in Skokomish was
27 “prospective” or “retrospective,” what matters is not the procedural posture in the Ninth
28
Circuit but rather that in the district court when the recusal motion was decided.

8
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1 Nor do other circuits ignore the timeliness requirement in cases where further action
2 by the district court is contemplated or certain. E.g., Kolon Indus., 748 F.3d at 166, 171
3 (upholding denial of recusal motion as untimely, where motion was filed two days before
4 due date for motions for summary judgment); Willner v. Univ. of Kansas, 848 F.2d 1023,
5 1028-29 (10th Cir. 1988) (denial of recusal first sought during ongoing discovery untimely);
6 Omega Eng’g, Inc. v. Omega, S.A., 432 F.3d 437, 448 (2d Cir. 2005) (litigant’s recusal
7 motion during evidentiary hearing untimely, where it “gave no indication of any good cause
8 for its delay, and [recusal] would have resulted in a considerable waste of judicial
9 resources”). Rather, courts regularly find recusal motions untimely where the district court
10 will continue management of a structural injunction or consent decree. White, 585 F.3d at
11 1141 (upholding denial of recusal motion predicated on ex parte meetings as untimely,
12 where the movant sought the court’s recusal from oversight of an enforcement decree);
13 United States v. Yonkers Bd. of Educ., 946 F.2d 180, 183 (2d Cir. 1991) (recusal motion
14 untimely where the litigant sought the court’s recusal from enforcement of a consent decree,
15 in part based on allegedly improper ex parte communications). Movants’ characterization of
16 the case law to the contrary is flatly incorrect.7
17

18
7
19 Movants advance several inapposite cases pertaining to appellate courts’ authority to
reassign cases—simply not at issue here. Recusal motions filed in district courts implicate
20
different legal standards than those for 28 U.S.C. § 2106 and appellate courts’ authority
21 regarding reassignment on remand. See United States v. Sears Roebuck & Co., 785 F.2d 777,
780 (9th Cir. 1986) (explaining that “[w]e are not acting under the disqualification statutes”);
22 California v. Montrose Chem. Corp. of Cal., 104 F.3d 1507, 1521 (9th Cir. 1997)
23
(articulating the § 2106 standard for remand to a different district court judge); O’Rourke v.
City of Norman, 875 F.2d 1465, 1475 (10th Cir. 1989) (describing reassignment authority as
24 “exist[ing] apart from the judicial disqualification statutes”). Movants’ attempt to
characterize Kolon Industries, Inc. v. E.I. DuPont de Nemours & Co. (Kolon Indus. II), 564
25 Fed. App’x 710 (4th Cir. 2014), as support for recusal is consequently also unsuccessful. See
26 Doc. 1896 at 6 (claiming that § 2106 reassignment on remand supports Movants’ § 455
recusal argument). Plaintiffs do not waive any arguments that might arise on appeal
27 regarding reassignment based on § 2106 supervisory power, or any other aspect of an
28
appellate court’s authority to reassign cases.

9
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1 Movants also wrongly rely on opinions that discuss both the timeliness and the merits
2 of a recusal motion to claim that this Court must reach the merits notwithstanding the great
3 untimeliness of their motion. The choice of some courts to state both the procedural and the
4 substantive grounds for denial of a disqualification motion does not mean that courts may
5 not rely solely on the tardiness of a motion to deny it. See, e.g., Skokomish Indian Tribe, 410
6 F.3d at 519 n.11 (“We do not, of course, express a view as to the merits of the recusal
7 motion[.]”); cf. Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864, 871 (9th Cir. 1991)
8 (finding that “even if the trial judge did abuse his discretion,” failure to timely move for
9 disqualification meant that the litigant had waived vacatur of the judgment on those grounds)
10 (emphasis added). One sufficient reason to deny a motion—for example, failure to meet the
11 threshold timeliness requirement—is all that is needed.
12 2. Timeliness Doctrine Exists to Guard Against the Kind of Judicial Waste
13 and Manipulation of the Recusal Process Threatened by the Present
Motion.
14 Movants’ proposed rule exempting “prospective” relief from the timeliness
15 requirement contradicts the policies that underlie the Ninth Circuit’s threshold timeliness
16 requirement: thwarting gamesmanship and preventing waste. Preston, 923 F.2d at 733
17 (timeliness requirement exists in part to prevent litigants from “us[ing] recusal motions for
18 strategic purposes”). As this Court has previously noted, “a party that unduly delays the
19 filing of a recusal motion is presumed to be filing it for manipulative purposes.” Order
20 Denying Motion for Recusal or Disqualification (Doc. 1164) at 32 (citing E. & J. Gallo
21 Winery, 967 F.2d at 1295-96). Movants have received multiple adverse rulings in the time
22 since the May 2015 motion for recusal, including the denial of that motion, as well as the
23 May 2016 findings of fact and July 2016 second supplemental injunction. Doc. 1164; Doc.
24 1677; Doc. 1765. Movants’ choice to sit on their purported grounds for recusal, rather than to
25 raise them in their earlier recusal motion regarding this Court, and instead to raise them after
26 such a long delay, gives rise to an inference of improper strategic calculation.
27
28

10
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1 Moreover, recusal of either the Court or the Monitor at this late stage in the litigation
2 would lead to needlessly “wasted judicial time and resources” at a crucial stage in the
3 compliance process—exactly what the timeliness requirement is designed to prevent.
4 Preston, 923 F.2d at 733. A new judge or monitor would lack the knowledge gained by this
5 Court over the more than seven years that it has overseen this case and by the Monitor in
6 almost three years of labor. See In re Int’l Bus. Machs. Corp., 618 F.2d 923, 934 (2d Cir.
7 1980) (where “the investment of judicial time and energy” was “immense” such that efforts
8 by a new judge to catch up would make “[t]he labors of Sisyphus pale by comparison,”
9 recusal would create judicial waste and was untimely). Since this Court began work on this
10 case, there have been over 1,700 docket entries.
11 The specter of wasted judicial time and resources, including through loss of
12 institutional knowledge, is particularly concerning to the ongoing efforts to protect the rights
13 of the Plaintiff class. In the first annual report analyzing agency-wide traffic data,
14 Defendants’ expert identified seventy deputies showing indicia of bias-based policing. See
15 Doc. 1858 at 94, 185. Defendants’ initial response to that analysis failed adequately to
16 address the observed problems. See id. at 185-86 (detailing deficiencies with MCSO’s
17 response to the first annual report). The second agency-wide report, released to Plaintiffs and
18 the Monitor team on October 28, 2016, provides alarming evidence of racial profiling and
19 bias-based policing, both by many individual deputies and on an agency-wide basis.
20 Defendants voluntarily have just begun working closely with the Monitor to address the
21 findings of outlier deputies with indicia of bias-based policing identified in each report. See
22 Tr. of Nov. 10, 2016 (Ex. 17), at 27 (defense counsel noting meetings between the Monitor
23 and MCSO). The Monitor is also working with Defendants to ensure the implementation of
24 the Early Intervention System (“EIS”), twenty-six months past the deadline set in the first
25 supplemental injunction. See Doc. 606, ¶ 79. These processes, initiated by Defendants,
26 would be disrupted were the Monitor to be displaced, as Defendants have proven themselves
27 incapable of handling these issues independently. Addressing the findings of both reports is
28

11
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1 urgently needed in order to end what appears to be ongoing violations of the rights of the
2 Plaintiff class. Timeliness prevents Movants from jeopardizing the Plaintiff class’s rights by
3 seeking recusal on grounds that they have known about for years and which they failed to
4 assert in their first recusal motion over nineteen months ago. The Communications Cited by
5 Movants Provide No Grounds for Recusal of the Court or Its Monitor.
6 As a substantive matter, the Court and Monitor did nothing to warrant disqualification
7 or removal. The communications between the Court and its agent were necessary to the
8 Court’s oversight of compliance and proper in light of the Court’s remedial authority. They
9 were not improper ex parte communications, and they do not provide a reasonable basis for
10 questioning the Court’s impartiality or even create the appearance thereof. Further, these
11 communications do not involve any disputed facts. They were permissible communications
12 under all existing law and ethical obligations, including the Due Process Clause, 28 U.S.C.
13 § 455, the Code of Judicial Conduct,8 and the law regarding the scope of the Court’s and the
14 Monitor’s authority.
15 D. Communications Between the Monitor and the Court Are Proper and
16 Necessary for Oversight of Defendants’ Compliance.

17 Movants’ arguments in support of recusal misapprehend the nature of the Court-

18 Monitor relationship. Courts commonly appoint and use monitors pursuant to their inherent

19 equitable power, as the Court has done in this case. See, e.g., Nat’l Org. for the Reform of

20 Marijuana Laws v. Mullen, 828 F.2d 536, 544 (9th Cir. 1987) (upholding reference to a

21 master for compliance monitoring as within “the inherent power of the Court to enforce its

22 orders”); Jenkins ex rel. Agyei v. Missouri, 890 F.2d 65, 68 (8th Cir. 1989) (explaining that

23 “use of [a] Monitoring Committee is well within the court’s equitable powers”); United

24 States v. Apple, Inc., 992 F. Supp. 2d 263, 280 (S.D.N.Y. 2014) (“A court’s inherent

25 equitable power to appoint a monitor . . . is, of course, well established”), aff’d, 787 F.3d 131

26
8
While Movants briefly discuss the Code of Conduct for U.S. Judges Canon 3 § A(4)
27 (2003), Movants have not provided any reasons or authority to indicate that this Code of
28
Conduct sets a different standard for recusal than addressed here.

12
Case 2:07-cv-02513-GMS Document 1913 Filed 12/16/16 Page 20 of 35

1 (2d Cir. 2015). The Ninth Circuit has repeatedly approved the appointments of monitors to
2 oversee compliance with injunctions. See, e.g., Hook v. Arizona, 120 F.3d 921, 926 (9th Cir.
3 1997) (where district court “lacked the resources to constantly monitor compliance” with a
4 consent decree, appointment of a special master was not an abuse of discretion); see also
5 Melendres v. Arpaio, 784 F.3d 1254, 1267 (9th Cir. 2015) (upholding aspects of the scope of
6 the Monitor’s authority in this case as “narrowly tailored to remedying the specific
7 constitutional violations”).
8 Communications between a monitor and a court in the post-judgment compliance
9 context are both expected and necessary. Because the court’s duty at that stage is not to
10 determine liability but rather to implement a remedy, the monitor possesses broad authority
11 to investigate and communicate with the court, particularly where there are “continued
12 efforts by [defendants] to thwart implementation of the remedy.” See, e.g., Yonkers Bd. of
13 Educ., 946 F.2d at 184. Practically speaking, the nature of a structural injunction and the
14 need to monitor defendants’ compliance necessitates extensive communication between the
15 court and the monitor. See In re Brooks, 383 F.3d 1036, 1043 (D.C. Cir. 2004) (“[I]t is not
16 surprising that the district court judge met many times with the Special Master and the Court
17 Monitor; he had to oversee and to coordinate their efforts on the court’s behalf during four
18 years of complicated and contentious litigation.”). A court’s contacts with a monitor
19 particularly do not give rise to any perception or inference of improper conduct at the
20 remedial stage, where ex parte contacts are “part of the performance of [a compliance
21 monitor’s] duty.” See Yonkers Bd. of Educ., 946 F.2d at 184.9
22
9
23
Movants’ reliance on Edgar, a case involving an expert panel appointed pursuant to Fed. R.
Evid. 706, is misplaced. The experts, who were charged with factual development to
24 facilitate settlement, used a controversial methodology. Edgar, 93 F.3d at 260. The judge
apparently met with the experts ex parte in order “to anticipate and preempt an important
25 legal question” regarding the soundness of the methodology—methods on which the experts
26 would subsequently testify at trial in an adversarial proceeding. Id.; see also Fed. R. Evid.
706(a). As a “thoughtful observer aware of all the facts” would recognize, the court’s
27 meetings with these experts, given their substantive role on liability, gave rise to an
28
appearance of partiality. Edgar, 93 F.3d at 259. By contrast, the Monitor here is the Court’s

13
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1 Because the Monitor in this case was appointed pursuant to the Court’s broad general
2 power to fashion an equitable remedy, communications between the Court and the Monitor
3 are not only permissible but necessary. Local 28 of Sheet Metal Workers’ Int’l Ass’n v.
4 E.E.O.C., 478 U.S. 421, 481-82 (1986) (affirming the “appointment of an administrator with
5 broad powers to supervise . . . compliance with the court’s orders”). Federal courts have the
6 inherent authority “to issue such commands . . . as may be necessary or appropriate to
7 effectuate and prevent the frustration of orders . . . previously issued.” United States v. N.Y.
8 Tel. Co., 434 U.S. 159, 172 (1977) (confirming this power, codified in the All Writs Act, 28
9 U.S.C. § 1651(a)); see also Nat’l Org. for the Reform of Marijuana Laws, 828 F.2d at 544
10 (explaining that appointment of “a master to monitor compliance with the preliminary
11 injunction . . . validly applie[d] the All Writs Act”). This source of authority is independent
12 of Federal Rule of Civil Procedure 53. Nat’l Org for the Reform of Marijuana Laws, 828
13 F.2d at 544. The Court has expressed its understanding of its “inherent authority to
14 investigate the MCSO’s compliance with [the Court’s] orders.” Tr. of Nov. 20, 2014 (Ex. 5),
15 at 30. Indeed, Movants’ attorney characterized work by the Monitor as an exercise of the
16 Court’s “inherent authority.” Tr. of May 14, 2015 (Ex. 12), at 55. Rule 53 therefore does not
17 limit or prevent the Court-Monitor contacts at issue.
18 Even were the Monitor appointed under Federal Rule of Civil Procedure 53 rather
19 than pursuant to the Court’s inherent equitable power, the communications of which
20 Movants complain would be unproblematic. Rule 53, where it applies, “does not directly
21 regulate” all ex parte communications. See The Advisory Committee Notes to the 2003
22 Amendments (noting, also, that “there may be circumstances in which the master’s role is
23
agent in overseeing compliance with the remedial injunction, and the Court and Monitor
24 must work closely together to facilitate that oversight. See Yonkers Bd. of Educ., 946 F.2d at
184. Movants’ reliance on Kensington II, 368 F.3d at 307, fails for similar reasons:
25 Kensington II involved experts appointed prior to merits determinations with a “structural
26 conflict of interest.” Id. at 312. A reasonable observer could have been troubled by those
experts using ex parte meetings to influence the judge’s merits determination with “less-
27 than-neutral advice.” Id. at 305, 312 (also explicitly stating that “[w]e do not hold that ex
28
parte communications alone—in the absence of any conflict of interest—require recusal”).

14
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1 enhanced by” such communications). The Supplemental Injunction is extensive and certainly
2 anticipates required communications directly between the Monitor and the Court to manage
3 compliance efforts; the Supplemental Injunction also does not foreclose other avenues of
4 communication between the Court and the Monitor. See Supplemental Permanent
5 Injunction/Judgment Order ¶¶ 126, 129-31. (Oct. 2, 2013), Doc. 606 (“Supplemental
6 Injunction”). Indeed, the Court’s November 20, 2014 order acknowledges the Monitor’s
7 authority to communicate with the Court: “Nothing in this Order prevents the Monitor from
8 communicating any information to the Court.” Doc. 795 at 18. As noted by the Court in
9 denying Movants’ stay motion, no party objected to this reaffirmation of the Monitor’s role.
10 Doc. 1900 at 2.
11 Moreover, the Parties’ conduct, including that of Movants, since the Monitor’s
12 appointment indicates that there was universal recognition that the Monitor could
13 communicate directly with the Court as necessitated by the Supplemental Injunction and that
14 the Court would handle that information a certain way. The Parties, the Monitor and his
15 team, and the Court have met frequently pursuant to the Supplemental Injunction to
16 exchange large amounts of information regarding MCSO’s activities and to work together to
17 bring MCSO into compliance. Movants have expressly approved of the Monitor’s ability to
18 communicate this information regarding MCSO’s compliance directly to the Court. See
19 supra Section I.C. And, as discussed below, the Court also repeatedly made clear that it
20 would not make any determination based on outside information and would rely only on
21 what was presented in open court.10
22
10
23
While Movants appear to also complain about ex parte communications raised during the
August 11, 2015 status conference, Doc. 1878 at 16, they did not include that within their 10
24 categories of purportedly improper communications. Nevertheless, these communications do
not raise even an inkling of impropriety. In these communications, the Monitor did not
25 convey any substantive information regarding interviews of MCSO employees, but instead
26 raised a purely logistical issue regarding the scope of the interviews and MCSO’s possible
obstruction of the Monitor’s activities. Tr. of Aug. 11, 2015 (Ex. 13), at 54. The Court also
27 immediately provided the Parties with notice and permitted all to respond. Id. (“I am roughly
28
aware of who’s being interviewed, and roughly aware of the topics of the interview, because

15
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E. The Communications Cited by Movants Are Not Impermissible Ex Parte
1
Communications and Do Not Require Recusal.
2
None of the categories of communications cited by Movants include impermissible ex
3
parte communications or require recusal. Nothing was improper about these
4
communications; in fact, together they form a textbook example of the kind of routine Court-
5
Monitor communication necessary for an agent of the Court to monitor compliance with a
6
structural injunction. A contact is only impermissibly ex parte if a party had “a right to be
7
present” and “[wa]s excluded”; ex parte contacts are only improper if they give grounds for
8
“a reasonable person to question [the court’s] impartiality.” Blixseth v. Yellowstone
9
Mountain Club, LLC, 742 F.3d 1215, 1219 (9th Cir. 2014). All the communications that
10
Movants cite were either administrative communications between the Court and its Monitor,
11
or were placed on the record by the Court, giving the Parties a full opportunity to address
12
them. Movants “had an opportunity to participate in determination of the relevant issues” in
13
all instances and were afforded due process. See Guenther v. Comm’r, 889 F.2d 882, 884
14
(9th Cir. 1989) (Guenther I). No reasonable person could question the Court’s impartiality in
15
decision-making based on these communications. See 28 U.S.C. § 455(a). Moreover, as
16
detailed supra Section I.B, Movants failed to raise any concerns about these communications
17
with either the Court or the Monitor at the time—despite numerous opportunities.
18

19

20

21
I have the obligation under the order to supervise the monitor’s work. But I haven’t read any
22 of the interviews, and I haven’t assumed the truth of anything in the interviews.”); id. at 55
23
(“And I’m not assuming the truth of anything otherwise that I hear, and any concerns I have I
raise openly to all parties so they can address them.”), 56-57 (“[I]f anything gets raised, and
24 it was raised to me right before court in concern of—related to the concern to the extent that
you might have been obstructing the ability of the monitor to conduct an effective interview,
25 and the way I dealt with that is I raised it immediately with you. And I do have the
26 obligation, under both injunctions, to supervise the monitor in his work.”). Further, the Court
repeated that it has always instructed counsel that if there were objections to the interviews
27 in question, counsel could terminate those interviews and bring the matter to the Court. Id. at
28
58.

16
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1 1. Communications Were Properly Administrative or Logistical In Nature.
2 Movants repeatedly complain of communications between the Court and the Monitor
3 regarding administrative oversight —for example, about allocation of Monitor resources and
4 basic logistics—that are both routine and wholly permissible where a court has appointed a
5 post-judgment compliance monitor. These communications are not impermissible ex parte
6 contacts in any sense, because they are not “one[s] where a party who has a right to be
7 present is excluded.” See Blixseth, 742 F.3d at 1219.
8 Rather, communications that give the Court an idea of the Monitor’s progress and
9 activities are routinely contemplated by court-monitor relationships and routinely form part
10 of the compliance process in courts across the country. Cobell v. Norton, 237 F. Supp. 2d 71,
11 91 (D.D.C. 2003) (“The Monitor’s time records show that he has consulted with this Court
12 on a number of occasions during the course of this litigation. During these consultations, the
13 Monitor informed the Court about his activities, in order that the Court could ensure that the
14 Monitor was earning his keep.”), aff’d on this point by In re Brooks, 383 F.3d 1036 (D.C.
15 Cir. 2004); In re Brooks, 383 F.3d at 1042 (finding that “the Monitor was compelled to
16 present the facts surrounding the request of the Deputy Secretary . . . in order that the Court
17 could make an informed decision about whether to authorize the Monitor’s attendance at the
18 meeting”) (citation and internal marks omitted). While Movants complain of
19 communications regarding MCSO personnel’s cooperation with the Monitor’s work, such
20 communications are inherent in the Court’s management of the compliance process. See In
21 re Brooks, 383 F.3d at 1042 (finding no grounds for recusal in the disclosure of facts
22 enabling a court to “make an informed decision” as to whether its monitor ought to engage in
23 a particular area).
24 The vast majority of communications of which Movants complain were simply what
25 was necessary for the Court’s oversight and management of its Orders through the Monitor.
26 For example, as to the communications cited by Movants in Category 1, the Court received
27 information from the Monitor concerning MCSO’s possible frustration of the Monitor’s
28

17
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1 ability to assist with the collection of video recordings pursuant to the Court’s previous
2 order—logistical issues regarding the Monitor’s oversight. See Tr. of May 16, 2014 (Ex. 3),
3 at 8. Further, Movants agreed that the Monitor could issue this report to the Court, id. at 26,
4 and were advised of and agreed to the Court’s prior instructions that “require[d] the Monitor
5 to inform [it of] any concerns he has that the MCSO is not fully and completely cooperating
6 in an independent and thorough investigation,” Tr. of May 14, 2014 (previously sealed) (Ex.
7 2), at 95.11 See also id. at 94 (“I’m going to direct the monitor to tell me [if MCSO rejects his
8 suggestions], and why, and I’ll let you explain that.”).
9 Similarly, communications referred to in Category 2, between the Monitor and the
10 Court regarding the Armendariz criminal investigation, were related to the Monitor’s
11 progress and to decisions regarding the allocation of resources; Movants’ characterization of
12 this incident is inaccurate and misleading. See Tr. of Oct. 28, 2014 (Ex. 4), at 36-37.
13 Likewise, with respect to Category 6, the Monitor’s communication to the Court of his need
14 for documentation and the lack of updates on the status of internal investigations were within
15 the administrative management of compliance with the Court’s orders. Tr. of Feb. 26, 2015
16 (Ex. 7), at 51. See also Tr. of Mar. 20, 2015 (Ex. 8), at 12 (Category 3).
17
The Court continued to need information from the Monitor in order to allocate and
18
oversee the Monitor’s use of resources. For example, the communications regarding
19
document production and the status of internal affairs investigations were necessary to
20
efficiently secure production and for the Monitor to communicate with the Court regarding
21
progress on internal affairs investigations. See Tr. of Apr. 21, 2015 (Ex. 9), at 17-18
22
(Category 6) (communications as to whether information had been transmitted to Monitor);
23
Tr. of Sept. 25, 2015 (Ex. 14), at 1484 (Category 6) (“I will say that the Monitor did provide
24

25 11
Movants also misstate the record as to events in question relating to their Category 1
communications. Contrary to Movants’ assertions, the Court made clear that MCSO
26 officials, including Sheridan, are always able to check with counsel and counsel may also
challenge any orders. Tr. of May 14, 2014 (Ex. 2), at 30. Further, the Monitor confirmed that
27 he told Sheridan to check with counsel prior to producing a report. Id. at 31. Counsel for
28
Movants did not object or dispute any of this.

18
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1 me a quick bit of information that they do not have Chief Deputy Sheridan’s grievance grant
2 on the Hechavarria matter.”); Tr. of Nov. 19, 2015 (Ex. 16), at 7 (Category 6) (“I will tell
3 you I just called yesterday to check with my monitor to see if they had 14-221 and they
4 didn’t have it yet.”).
5 Likewise, in Movants’ Category 7, the issues arose as a result of the Monitor’s initial
6 compliance activities, during which he discovered the existence of video recordings and
7 policies directly relevant to the Court’s orders and necessary to oversee compliance. Tr. of
8 May 14, 2014 (Ex. 2), at 55, 63, 74-78 (“The Monitor, in his initial activities, has come
9 across the fact that during the term of the traffic stops that are at issue in this lawsuit there
10 have been digital audio devices that have been delivered to members of the MCSO to make
11 recordings of all such stops.”). Defendants conceded at the time that what was “discovered is
12 pertinent to the Monitor’s scope,” id. at 55, and that the Monitor and his team “have the need
13 as an officer of the Court, to investigate those matters,” and welcomed the Court and the
14 Monitor’s involvement, id. at 74. As to Movants’ Category 9, Movants simply misconstrue
15 the record. The Monitor communicated to the Court about whether certain issues fell within
16 the scope of his authority. Tr. of May 14, 2014 (Ex. 2), at 29-30. This was essential for the
17 Court to ensure that the Monitor was allocating his resources only to matters within the
18 scope of the Court’s orders.12 See id. Communications were likewise needed to oversee the
19 allocation of the Monitor’s resources in conducting required community outreach. Tr. of
20 Apr. 3, 2014 (Ex. 1), at 43 (Category 10) (recounting a conversation in which the Monitor
21 suggested to the Court that division of the community outreach meetings into two halves of
22 the county was not feasible).
23 As the Court explained in denying Movants’ last recusal motion, with respect to the
24 allegations that Movants rehash as Category 8, this kind of “unprompted comment . . . d[oes]
25
12
26 Further, the Court’s concern was not with the Monitor expanding the scope of his own
work, but with the County possibly wanting to use the Monitor as a consultant for purposes
27 outside of the scope of the orders, which the Court opposed. Tr. of May 14, 2014 (Ex. 2), at
28
29-30. This did not concern the expansion of the Monitor’s authority.

19
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1 not provide the Court with the kind of substantive information about proceedings that
2 ‘cannot be controverted or tested by the tools of the adversary process.’” Order Denying
3 Motion for Recusal or Disqualification (Doc. 1164) at 20 (quoting Edgar, 93 F.3d at 259,
4 and discussing Movants’ Category 8). Instead, these kinds of communications are necessary
5 for a Court to manage the Monitor relationship—it is difficult to imagine functional
6 implementation of a complex structural injunction with a monitor without them.
7 2. Movants Received Notice and the Opportunity for a Hearing Regarding
8 Communications of Which They Now Complain.
For other communications of which Movants complain, the fact that Movants
9
received notice and an opportunity to be heard means that the communications cannot form
10
the basis for recusal. Even court-monitor communications concerning the substantive merits
11
of a case are permissible and not improper when subsequently disclosed to the parties in a
12
context that allows the parties to respond. See, e.g., Guenther I, 889 F.2d at 885 (remanding
13
for determination of whether judge must recuse himself based on an initial finding that he
14
did not give a party an opportunity to respond to a substantive ex parte communication on
15
the merits filed by opponents before judgment); Guenther v. Comm’r, 939 F.2d 758, 761 (9th
16
Cir. 1991) (Guenther II) (prejudice found only after noting that the adversely affected parties
17
never had the opportunity for a hearing on the topics covered); United States v. Green, 544
18
F.2d 138, 146 (3d Cir. 1976) (concluding there was “no deprivation of due process of law”
19
for the trial judge to conduct an ex parte telephone conversation because “[the contacts] were
20
not clandestine but were put on the record by the court; and full opportunity existed for
21
cross-examination.”). At most, Movants here simply point out places where this Court did
22
exactly this.
23
Movants repeatedly cite instances when they received notice of certain
24
communications and were provided an opportunity to be heard, which is consistent with both
25
due process and the requirements of the Supplemental Injunction, and which consequently
26
would not lead a reasonable observer to infer partiality. See In re Brooks, 383 F.3d at 1042.
27
28

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1 For example, as to Movants’ Category 1, the Court placed the communications on the record
2 and provided Defendants an opportunity to fully respond. Tr. of May 16, 2014 (Ex. 3), at 8,
3 12 (Court: “I’m not making any determinations about what happened, or what the
4 motivations are as to what happened.”), 23 (“I’ve stated the facts as best I can, and if you’re
5 concer[ned] -- and I’ve allowed you to make sure that they not be misconstrued by stating
6 your position, which I believe I’ve commented on adequately.”). Regarding information on
7 MCSO’s closure of the Armendariz investigation, the Court directed “a report so you could
8 be allowed to respond.” Tr. of Oct. 28, 2014 (Ex. 4), at 36 (Category 2). For complained-of
9 communications regarding the hurdles to compliance raised by issues in MCSO internal
10 investigations referenced in Movants’ Category 6, the Court gave Movants an opportunity to
11 respond during the hearings; Movants did not object. Tr. of Feb. 26, 2015 (Ex. 7), at 51-52,
12 54 (Category 6); Tr. of Apr. 21, 2015 (Ex. 9), at 17-20 (Category 6); Tr. of Sept. 25, 2015
13 (Ex. 14), at 1484; Tr. of Nov. 19, 2015 (Ex. 16), at 6-7 (Category 6). Similarly, the Court
14 brought the issue of the Montgomery materials before Movants upon communication from
15 the Monitor, and Movants declined the opportunity to be heard at status conferences. Tr. of
16 May 8, 2015 (Ex. 11), at 29-34 (Category 4) (the Court explaining that “over the last day or
17 maybe two days,” the Monitor had brought before the Court concerns that the Court
18 “want[ed] to raise with” Movants, and Movants’ counsel taking the Court’s invitation to
19 raise “[o]ther issues” related to the documents but making no objection to the
20 communications between the Court and the Monitor); Tr. of May 14, 2015 (Ex. 12), at 44-55
21 (Category 4) (Movants’ counsel making no objection to Court-Monitor communications
22 despite opportunity and in fact indicating that the Court had not “overstepped [its] bounds”
23 in raising only a due process objection to expansion of the Monitor’s authority going
24 forward). Movants also had the opportunity to respond at the hearings relevant to the
25 communications in Movants’ Category 5 that they now claim were improper. See Tr. of Oct.
26 28, 2014 (Ex. 4), at 53-54 (Movants’ counsel responding to and noting no concerns with the
27 Court’s statement); Tr. of Dec. 4, 2014 (Ex. 6), at 28 (the Court explaining that it was
28

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1 “laying out this treatment for [counsel’s] comment” and specifically giving defense counsel
2 an opportunity to comment); Tr. of Oct. 9, 2015 (Ex. 15), at 2724-25 (Movants’ counsel
3 stating that they had “[n]o” response to the Court’s comments). The record of notice and
4 opportunity to be heard regarding Movants’ Category 7 is likewise extensive. Tr. of May 14,
5 2014 (previously sealed) (Ex. 2), at 43 (“I became aware yesterday through disclosures made
6 by . . . Chief Deputy Sheridan to the monitor—of some extensive information that I believe
7 requires this Court to address it, address on the record, and I want to have an explanation of
8 that evidence made available so all parties can hear it pursuant to the terms of the order”), 55
9 (“It is my understanding from my monitor, and I may have misunderstood him so I’m telling
10 you now, so you can correct me if I do have a misunderstanding.”). See also Tr. of May 14,
11 2014 (Ex. 2), at 29-30, 32 (as to Movants’ Category 9, the Court placed information on the
12 record and permitted parties to address); Tr. of Mar. 20, 2015 (Ex. 8), at 13, 14, 16-17, 63
13 (regarding Movants’ Categories 3 and 5, Movants commenting and also declining further
14 proffered opportunities to respond); Tr. of Apr. 3, 2014 (Ex. 1), at 43, 86 (opportunities to
15 comment for Category 10); Tr. of Apr. 23, 2015 (Ex. 10), at 657-658 (as to Category 8,
16 Court immediately placing information on record for response).13
17

18 13
Courts manage their relationships with their agents in part by weighing whether received
19 communications speak to the merits of the case in a way that requires disclosure to the
parties or whether, instead, disclosure is unnecessary. See, e.g., In re Brooks, 383 F.3d at
20
1043 (“[The judge] need not recall all that was discussed at those meetings; he need only
21 recall that the substance of the special masters’ findings was not discussed. If, as he
represents, that was an implicit ground rule for the conduct of those meetings, then the
22 pertinent question is whether it was ever violated. We see no reason for not accepting the
23
judge’s unequivocal response.”); cf. Clifford v. United States, 136 F.3d 144, 150 (D.C. Cir.
1998) (explaining that even in the context of a pending case “when a party conveys ex parte
24 information to a judge . . . courts presume that the trial judge . . . can adequately determine
whether such communications go to the merits of the case and promptly stifle them or
25 require disclosure when necessary”). Here, to the extent that the Court determined that there
26 was no need for immediate disclosure, that determination was within the court’s discretion
and necessary not to overburden complex post-judgment case management. See Yonkers Bd.
27 of Educ., 946 F.2d at 184 (noting that “[a]ny requirement that all parties must be included in
28
every conversation” would only “further delay implementation of the remedy”).

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F. Movants’ § 455(b)(1) Argument Fails Because They Have Established No
1
Disputed Evidentiary Facts.
2

3 Movants fail to establish that any of the communications between the Court and

4 Monitor were based on “personal knowledge of disputed evidentiary facts” for purposes of

5 28 U.S.C. § 455(b)(1). Movants do not actually dispute any of the facts contained in the

6 communications that they cite. As to the information in Category 1, Movants do not dispute

7 that information and in fact explicitly affirmed it during the hearing in question. Tr. of May

8 16, 2014 (Ex. 3), at 28 (“But we will be glad to share [that report], because the chief has sent

9 it, and it is what the chief said factually and he stands by it.”). Movants do not dispute that

10 the Armendariz criminal investigation was closed or that the Monitor received information

11 on the topic. See Tr. of . Oct. 28, 2014, at 36-39 (Category 2). There was no dispute that the

12 independent investigator was told “to provide facts only and . . . not to evaluate those facts.”

13 See Tr. of Mar. 20, 2015 (Ex. 8), at 12-17 (Category 3). Movants do not allege that any of

14 the facts that the Court heard from the Monitor regarding the Montgomery documents were

15 disputed—and indeed they were not ever disputed. See Tr. of May 8, 2015 (Ex. 11), at 29-31

16 (Category 4); Tr. of May 14, 2015 (Ex. 12), at 44, 53-55, 62-64 (Category 4). With respect to

17 the reported statement that Movant Arpaio “loves to have confrontations with the federal

18 court because every time he does his popularity goes up,” Movants also do not dispute its

19 truth. See Tr. of Dec. 4, 2014 (Ex. 6), at 19 (Category 5). Regarding the other Category 5

20 communications, Movants do not dispute any of the descriptions of individuals’ cooperation

21 with the Monitor, nor did they at the time. Tr. of Oct. 28, 2014 (Ex. 4), at 52-54; Tr. of Mar.

22 20, 2015 (Ex. 8), at 12-17; Tr. of Oct. 9, 2015 (Ex. 15), at 2724-25. For the Category 6

23 allegations, Movants have not disputed the facts that the Monitor communicated to the Court

24 regarding MCSO’s failure to produce the documents and the status of internal affairs

25 investigations. See Tr. of Feb. 26, 2015 (Ex. 7), at 51; Tr. of Apr. 21, 2015 (Ex. 9), at 17-18;

26 Tr. of Sept. 25, 2015 (Ex. 14), at 1484; Tr. of Nov. 19, 2015 (Ex. 16), at 6-7. The same is

27 true of Movants’ Category 7 allegations—Movants do not dispute the facts stated by the

28

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1 Court. See, e.g., Tr. of May 14, 2014 (Ex. 2), at 55-63 (Movant Sheridan confirming and not
2 disputing any of the Court’s information); see also id. at 73-74. For Category 9, Movants did
3 not argue that consulting on certain aspects of MCSO operations did not fall within the scope
4 of the order. Tr. of May 14, 2014 (Ex. 2), at 29-30, 32. Regarding Category 10, Movants did
5 not dispute that community meetings encompassing half the county might make a personal
6 effect on policing difficult. Tr. of Apr. 3, 2014 (Ex. 1), at 43, 86. As to Category 8, as stated
7 in this Court’s prior denial of recusal, the comment was not “substantive information about
8 proceedings” incapable of “be[ing] controverted or tested by the tools of the adversary
9 process.” Order Denying Motion for Recusal or Disqualification (Doc. 1164) at 20.
10
G. Movants Demonstrate No Appearance of Partiality by the Court That
11
Would Lead to Recusal Under § 455(a) and No Prejudice.
12
Lastly, recusal is unwarranted because Movants fail to show even the appearance of
13
partiality from the complained-of communications. A reasonable observer would not
14
perceive any of the contacts between the Monitor and the Court as creating grounds to
15
“reasonably . . . question[]” the Court’s impartiality.14 28 U.S.C. § 455(a). In evaluating this
16
motion, the Court must put itself in the shoes of “a well-informed, thoughtful observer,” who
17
is neither “hypersensitive” nor “unduly suspicious.” Holland, 519 F.3d at 913. Recusal is
18
warranted only where this thoughtful observer “perceives a significant risk that the judge
19
will resolve the [matter] on a basis other than the merits.” See id. (citation omitted).
20
The reasonable observer could only understand the actions of the Court and the
21
Monitor as fair, reasonable, and without bias: the Court and Monitor’s work has been typical
22
of case management at the remedial stage and protective of the rights of Movants. Many of
23
the communications that Movants put forward are not impermissibly ex parte, as detailed
24
supra Section II.B.1, and any that could remotely be construed as such were placed on the
25
record, giving Movants an opportunity to respond, as described supra Section II.B.2.
26

27 14
Movants have also not put forward any reason to believe that the Court is disqualifiable
28
due to “a personal bias or prejudice.” 28 U.S.C. § 455(b)(1).

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1 Nor have Movants demonstrated any unfair prejudice or adverse effects from any
2 improper communications.15 See supra Section II.B. Some of the communications have in
3 fact benefited Movants. For example, the information that the Monitor team was aware of
4 investigations meant that the Court was not concerned with any lack of “technical
5 compliance.” Tr. of Feb. 26, 2015 (Ex. 7), at 51 (Category 6). Movants allege prejudice
6 solely from communications in Categories 3 and 5. For Category 3, Movants speculatively
7 allege solely that some unknown ex parte communications exist and allegedly may have
8 prejudiced the Court, making conclusory allegations that suggest the “unduly suspicious”
9 observer. Cf. Holland, 519 F.3d at 913. Movants’ Category 5 argument, that favorable
10 comments about some MCSO officials might be seen by some as implying unfavorable
11 views of other officials, does not hold up. These comments were not credibility
12 determinations, contrary to Movants’ assertions, but rather were made in the course of
13 hearing management. Tr. of Oct. 28, 2014 (Ex. 4), at 53-54; Tr. of Mar. 20, 2015 (Ex. 8), at
14 12-17; Tr. of Oct. 9, 2015 (Ex. 15), at 2724-25. A reasonable observer would not have
15 inferred that, in making decisions as to time allocation, the Court was making any
16 commentary on the credibility of all MCSO employees. The comments did not prejudice
17 Movants, and no reasonable observer would think that they indicated that the Court was
18 unable to make a decision other than on the merits.
19 Movants’ complaints of a general appearance of bias are contradicted by the overall
20 context of the case and the overwhelming weight of the record. See Aiken Cnty. v. BSP Div.
21 of Envirotech Corp., 866 F.2d 661, 677-79 (4th Cir.1989) (“Weighed against these minor
22 contacts is a vast record compiled during fifty-two days of trial that thoroughly demonstrates
23 a daily commitment to assure Envirotech and the other litigants a fair trial.”); In re Fed.
24 Skywalk Cases, 680 F.2d 1175, 1184 (8th Cir. 1982) (“A claim of bias [based on limited ex
25 parte contacts] must be evaluated in light of the full record, not simply in light of an isolated
26 15
Because Movants were able to “participate in determination of” any substantive issues
through the opportunity to respond on the record, Movants were afforded due process in any
27 event. See Guenther I, 889 F.2d at 884. Had Movants not been given that opportunity, they
28
would further have to show prejudice in order to show a due process violation. See id.

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1 incident. . . . In the present case Judge Wright developed an extensive record before he made
2 his decision to certify the class.”). As in In re Brooks, 383 F.3d at 1042-44, where the court’s
3 meetings with its agents many times to oversee their efforts during four years of contentious
4 litigation did not cause a reasonable and informed observer to question the court’s
5 impartiality, here the Court’s meetings and communications with its Monitor to manage the
6 implementation of a complex remedy would be seen by the reasonable, thoughtful observer
7 as not only reasonable but appropriate and proper. Movants give no particular reason that the
8 thoughtful observer would, as § 455(a) requires, perceive partiality from the communications
9 taken as a whole. Indeed, Movants fail to explain why the Court’s ordinary administrative
10 communications with its agent in this institutional reform case with a post-judgment
11 complex remedy would lead the thoughtful observer to view this Court as anything less than
12 impartial.
13 CONCLUSION
14 Movants’ motion for recusal is egregiously untimely and fails on the merits. Movants
15 have had more than fifteen months to raise these issues, yet they have failed to unearth any
16 grounds for recusal of this Court or removal of its Monitor. They cannot now disrupt
17 ongoing efforts to protect the rights of the Plaintiff Class. The motion must be denied.
18
RESPECTFULLY SUBMITTED this 16th day of December, 2016.
19

20 /s/Kathleen E. Brody
21
Kathleen E. Brody
Daniel J. Pochoda
22
Brenda Muñoz Furnish
ACLU Foundation of Arizona
23 Cecillia D. Wang (Pro Hac Vice)
24
Andre I. Segura (Pro Hac Vice)
ACLU Foundation
25
Immigrants’ Rights Project

26
Anne Lai (Pro Hac Vice)

27
Stanley Young (Pro Hac Vice)
Tammy Albarran (Pro Hac Vice)
28
Lauren E. Pedley (Pro Hac Vice)

26
Case 2:07-cv-02513-GMS Document 1913 Filed 12/16/16 Page 34 of 35

Covington & Burling, LLP
1
Julia Gomez (Pro Hac Vice)
2 Mexican American Legal Defense and
Educational Fund
3
James B. Chanin (Pro Hac Vice)
4

5 Attorneys for Plaintiffs

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1 CERTIFICATE OF SERVICE
2
I hereby certify that on December 16, 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
4
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 16th day of December, 2016.
7

8 /s/Kathleen E. Brody

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