You are on page 1of 9

Case 2:07-cv-02513-GMS Document 1921 Filed 12/30/16 Page 1 of 9

1 Charles J. Cooper*
Michael W. Kirk*
2 Harold S. Reeves*
COOPER & KIRK, PLLC
3 1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
4 Telephone: (202) 220-9600
Fax: (202) 220-9601
5 ccooper@cooperkirk.com
mkirk@cooperkirk.com
6 hreeves@cooperkirk.com
7 * Admitted pro hac vice
8 John T. Masterson, Bar #007447
Joseph J. Popolizio, Bar #017434
9 Justin M. Ackerman, Bar #030726
JONES, SKELTON & HOCHULI, P.L.C.
10 40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
11 Telephone: (602) 263-1700
Fax: (602) 200-7846
12 jmasterson@jshfirm.com
jpopolizio@jshfirm.com
13 jackerman@jshfirm.com
14 Attorneys for Defendant Joseph M. Arpaio
and non-party Movants Gerard Sheridan and
15 Joseph Sousa
16
UNITED STATES DISTRICT COURT
17
DISTRICT OF ARIZONA
18
Manuel de Jesus Ortega Melendres, et al., NO. CV 07-02513-PHX-GMS
19
Plaintiffs, SHERIFF ARPAIO, CHIEF
20 DEPUTY SHERIDAN, AND
v. LIEUTENANT SOUSA’S JOINT
21 REPLY BRIEF IN SUPPORT OF
Joseph M. Arpaio, et al., THEIR MOTIONS FOR RECUSAL
22 OF THE COURT AND ITS
Defendants. MONITOR AND FOR
23 DISCOVERY OF EX PARTE
COMMUNICATIONS
24
25
26
27
28
Case 2:07-cv-02513-GMS Document 1921 Filed 12/30/16 Page 2 of 9

1
Movants submit this joint reply brief in support of their Motion for Recusal of the
2
Court and Its Monitor (Nov. 10, 2016), Doc. 1878 (“Motion for Recusal”), as well as their
3
Renewed Motion for Leave to File Motion for Discovery of Ex Parte Communications
4
Between the Court and the Monitor (Nov. 15, 2016), Doc. 1884 (“Motion for Leave to File
5
for Discovery”), and its accompanying Renewed Motion for Discovery of Ex Parte
6
Communications Between the Court and the Monitor (Nov. 15, 2016), Doc. 1885 (“Motion
7
for Discovery”).
8
A. The Court and Monitor’s Ex Parte Communications
9
on the Merits Require Recusal.
10 Neither Plaintiffs nor the United States meaningfully dispute the central premise of
11 Movants’ Motion for Recusal, i.e., that the Court and its Monitor have engaged in extensive
12 ex parte communications, and that at least some of those communications concerned
13 disputed, merits-related questions. The United States candidly concedes that the Monitor
14 has privately “assessed compliance with the Court’s orders” and “inform[ed] the Court
15 about MCSO’s non-compliance with the Court’s orders.” United States’ Opposition to
16 Motion for Recusal of the Court and Its Monitor at 15, 17 (Dec. 16, 2016), Doc. 1908 (“U.S.
17 Recusal Opp.”); see also id. at 22–24. Plaintiffs implicitly admit that merits-related ex parte
18 communications took place, for they state that all of the ex parte communications thus far
19 disclosed on the record were “either administrative communications . . . or were placed on
20 the record by the Court . . . .” Plaintiffs’ Opposition to Motion for Recusal of the Court and
21 Its Monitor at 16 (Dec. 16, 2016), Doc. 1913 (emphases added) (“Pls.’ Recusal Opp.”).
22 These concessions are unavoidable, for the record makes absolutely clear that the
23 Court and its Monitor have engaged in ex parte discussions about merits-related issues,
24 many of which concerned topics at the very heart of the Court’s contempt findings and
25 expanded injunction. And these concessions resolve the Motion for Recusal, for when a
26 judge and its judicial officer have engaged in unauthorized ex parte communications about
27 the merits, that judge and its officer may never continue to preside over the case. See, e.g.,
28

1
Case 2:07-cv-02513-GMS Document 1921 Filed 12/30/16 Page 3 of 9

1
Edgar v. K.L., 93 F.3d 256, 262 (7th Cir. 1996); In re Kensington Int’l, Ltd., 368 F.3d 289,
2
318 (3d Cir. 2004); In re Brooks, 383 F.3d 1036, 1043–44 (D.C. Cir. 2004).
3
It is apparently the position of the United States that the bedrock prohibition against
4
ex parte communications is a mere “trapping[ ] of the adversarial phase” that does not apply
5
to post-judgment proceedings. U.S. Recusal Opp. at 23. This position is offered without
6
citation to authority, and if accepted would work a sea-change in the law of our country, for
7
the “trappings” of judicial process undoubtedly extend to the post-judgment compliance
8
phase. The importance of those “trappings” to litigants is brought into sharp relief in this
9
case, where the United States agrees that the Monitor secretly told the Court that Movants
10
were violating court orders and “impeding the Monitor’s work,” U.S. Recusal Opp. at 24,
11
and those same issues later provided the basis for this Court’s decision to (1) enter an
12
entirely new injunction exercising enormous control over wide swaths of a local
13
government agency, (2) enter civil contempt findings, and (3) refer individuals for criminal
14
contempt prosecution.
15
Plaintiffs and the United States claim that this Court has an “inherent equitable
16
power” to engage in ex parte communications with its Monitor. Pls.’ Recusal Opp. at 14;
17
see also U.S. Recusal Opp. at 24–25. No one disputes that the Court may communicate with
18
its Monitor, but the question here is whether those communications must be conducted on
19
the record or ex parte. There is nothing to Plaintiffs’ suggestion that the Court’s “inherent
20
power”—rooted, as it must be, in Article III—includes the power to abrogate the bedrock
21
prohibition against ex parte communications. But even if it did, here the Court’s Monitor
22
Authority Order makes clear that all communications between the Court and its Monitor
23
must be made on the record. The Court expressly rejected Plaintiffs’ proposal that it could
24
have ex parte communications with the Monitor, it expressly agreed that it would not
25
engage in any ex parte communication with the Monitor, and its Monitor Authority Order
26
codified only a right to speak ex parte with the parties. See Transcript of Status Conference
27
Held Aug. 30, 2013 at 11–12 (Sept. 10, 2013), Doc. 603 (“Aug. 30, 2013 Hearing”);
28

2
Case 2:07-cv-02513-GMS Document 1921 Filed 12/30/16 Page 4 of 9

1
Supplemental Permanent Injunction/Judgment Order ¶ 129 (Oct. 2, 2013), Doc. 606
2
(“Monitor Authority Order”); see also Edgar, 93 F.3d at 258 (governing order forbade ex
3
parte communications between the court and experts, because the original draft proposed
4
that the court could communicate with the experts ex parte yet the “language was deleted
5
before the order was entered”). The United States’ assertion, in the teeth of this history, that
6
the Permanent Injunction somehow “does not prohibit the Court’s [ex parte]
7
communications with its Monitor,” U.S. Recusal Opp. at 24, is simply unsustainable.
8
This course of history also debunks the assertion that the ex parte communications
9
about the merits were “both expected and necessary.” Pls.’ Recusal Opp. at 13; see also
10
U.S. Recusal Opp. at 1 (ex parte communications were “obligatory”). This Court’s initial
11
decision that it would not engage in such communications, and that it would allow Arpaio
12
to “stand in on” any ex parte communications, Aug. 30, 2013 Hearing at 11–12
13
(interruptions omitted), demonstrates that it was neither “expected” nor “necessary” for
14
these ex parte communications to take place. The United States argues at length that the
15
communications were permissible because they concerned compliance with court orders,
16
U.S. Recusal Opp. at 15–24, but it provides no reason why those communications had to
17
occur ex parte. To the contrary, the Monitor Authority Order states that when the Monitor
18
assessed MCSO’s compliance with court orders, it must disclose those concerns in reports
19
“to the parties and the Court.” Monitor Authority Order ¶ 126 (emphasis added). Although
20
communications between the Court and the Monitor may be “necessary,” it was not
21
necessary that they be conducted in secret.
22
Contrary to the United States’ contention, see U.S. Recusal Opp. at 21, facts learned
23
ex parte by a judge are undeniably facts learned in a “personal” rather than “judicial”
24
capacity, Edgar, 93 F.3d at 259. Plaintiffs argue that some (but not all) of the
25
communications that Movants know about were “administrative or logistical in nature.”
26
Pls.’ Recusal Opp. at 17. But it is hard to see how one can fairly characterize as
27
“administrative” the secret communications concerning, for example, “the status of internal
28

3
Case 2:07-cv-02513-GMS Document 1921 Filed 12/30/16 Page 5 of 9

1
affairs investigations” or whether MCSO “assist[ed] [the Monitor] with the collection of
2
video recordings pursuant to the Court’s previous order,” id. at 18—particularly when those
3
communications concerned issues that later provided the basis for the Court’s decisions to
4
issue a new injunction, civil contempt citations, and criminal contempt referrals.
5
The extensive ex parte communications on the merits create both apparent and actual
6
bias. Plaintiffs nevertheless insist there is no actual or apparent injustice because many of
7
the communications were “subsequently disclosed to the parties in a context that allows the
8
parties to respond.” Pls.’ Recusal Opp. at 20. But 28 U.S.C. § 455(a) does not permit any
9
inquiry into whether a party has been prejudiced by communications; the mere appearance
10
of bias or partiality suffices to disqualify the judge. Liteky v. United States, 510 U.S. 540,
11
548 (1994). Even assuming notice and an opportunity to respond could extinguish actual or
12
apparent bias, that is not the case here, where neither the Court nor the Monitor have
13
disclosed what was discussed in the ex parte communications identified by Movants. In any
14
event, once a judge has been exposed to ex parte communications, reassignment is
15
necessary because “it is difficult, if not impossible, for a judge, no matter how sincere, to
16
purge that information from her mind—and, equally, to maintain the perception of
17
impartiality.” United States v. Craven, 239 F.3d 91, 103 (1st Cir. 2001).
18
Most importantly, it is clear that the record discloses only a small portion of the
19
merits-related ex parte communications that have transpired between the Court and its
20
Monitor. This Court has candidly and repeatedly admitted that “the Monitor is in constant
21
communication with the Court regarding the performance of his services,” and that it had
22
“regular, almost daily meetings with the Monitor when he is in Maricopa County, and
23
frequent contact regarding developments and inquiries when he is not.” Order at 3 (Sept.
24
11, 2014), Doc. 741; see also, e.g., Transcript of Status Conference Held May 14, 2014 at
25
4 (May 15, 2014), Doc. 694; Transcript of Status Conference Held May 7, 2014 at 47 (May
26
15, 2014), Doc. 697. Thus, there is an entire new catalogue of communications that Movants
27
are unable to dispute because “without knowledge of what was discussed at these
28

4
Case 2:07-cv-02513-GMS Document 1921 Filed 12/30/16 Page 6 of 9

1
meetings, . . . they could not respond to these ‘silent’ facts.” Kensington, 368 F.3d at 309.
2
B. The Recusal Motion May Not Be Dismissed on Timeliness Grounds.
3
The lead argument in Plaintiffs’ and the United States’ briefs is that Movants’ recusal
4
motion should be rejected on timeliness grounds. Their argument is this: even if a judge has
5
engaged in patently inappropriate and biased conduct, and even if that conduct creates a
6
significant appearance of bias, the judge may continue to preside over the case for years to
7
come, simply because a litigant did not move for recusal at the earliest possible moment.
8
Neither the law nor the integrity of our judicial system sustains this argument. The
9
text of the judicial recusal statute, of course, contains no timeliness requirement at all, and
10
indeed it expressly prohibits waiver of a recusal issue brought under Section 455(b). See 28
11
U.S.C. § 455(e). And where, as here, a party requests only prospective recusal on a going-
12
forward basis, courts have recognized that timeliness cannot bar a request for
13
disqualification. In short, when a motion for recusal is “presented to the district court prior
14
to a proceeding over which the judge would preside,” the motion cannot be denied for lack
15
of timeliness, lest a district judge who has created patent actual or apparent bias be allowed
16
to continue to preside over the case. United States v. Furst, 886 F.2d 558, 581 (3d Cir.
17
1989); see also In re Kensington Int’l, 368 F.3d at 317.
18
Plaintiffs and the United States claim that Movants implicitly or explicitly consented
19
to many of the ex parte communications in this case, but that is simply not so. Arpaio
20
objected to the ex parte communications when the Court entered its Monitor Authority
21
Order, and the Court sustained that objection. See supra Part A. Arpaio renewed his
22
objection at a hearing on August 11, 2015. Transcript of Status Conference Held August
23
11, 2015 at 57 (Aug. 12, 2015), Doc. 1237. Despite its earlier agreement to permit
24
Defendants to be present for any communications with the Monitor, the court overruled the
25
objection, but it twice emphasized that Defendants had preserved their objection, stating:
26
“And so you’ve preserved the issue to the extent that you believe it is a problem,” and then
27
adding once again, “you have preserved it for the record.” Id. This Court cannot now deem
28

5
Case 2:07-cv-02513-GMS Document 1921 Filed 12/30/16 Page 7 of 9

1
waived an objection it expressly and repeatedly guaranteed was preserved.
2
Two final points must be emphasized. First, Plaintiffs and the United States suggest
3
that after this Court entered its permanent injunction in 2013, this Court has entered a post-
4
judgment phase where the “trappings” of due process do not apply. U.S. Recusal Opp. at
5
23. But this “post-judgment phase” will last at least as long as the “pre-judgment” phase.
6
Indeed, the injunction provides for judicial oversight for a full three years commencing after
7
Defendants have achieved full and effective compliance with court orders. Monitor
8
Authority Order ¶ 3. And the “post-judgment” phase has already resulted in judicial orders
9
at least as consequential as the earlier judgment on the merits, for it has involved (1) a new
10
final injunction that significantly expands federal court authority over local government
11
entities, including the power to countermand the decisions of an elected official, (2) civil
12
contempt findings, and (3) referrals for criminal contempt prosecution. The appearance of
13
justice would suffer gravely if this Court and its Monitor would continue to preside over
14
this institutional reform litigation for years notwithstanding their ex parte communications
15
on the merits.
16
Finally, Movants wish to respond to Plaintiffs’ and the United States’ claim that
17
Movants are engaged in “gamesmanship” and have brought this recusal motion for
18
“strategic” reasons. Pls.’ Recusal Opp. at 10. These accusations are simply not true. Again,
19
Movants’ Motion for Recusal does not seek vacatur of prior court rulings. Movants fully
20
intend to steadfastly abide by all of the Court’s prior rulings. Were this Court and its
21
Monitor to disqualify themselves, the case would not come to an end. Instead, a new district
22
judge and monitor would vigorously oversee Movants’ compliance with court orders, so
23
the rights of the Plaintiff class cannot possibly be harmed by a recusal. Accordingly, there
24
can be no possible prejudice to the Plaintiff class, and little waste of judicial resources, since
25
what has been done will not be undone as a result of the Motion for Recusal.
26
C. Movants Are Entitled to Discovery.
27
As explained in Part A, supra, the ex parte communications disclosed on the record
28

6
Case 2:07-cv-02513-GMS Document 1921 Filed 12/30/16 Page 8 of 9

1
are likely only the tip of an iceberg. For reasons explained in Movants’ Motion for
2
Discovery, Movants are entitled to discovery into the substance of those communications,
3
so that they may ascertain whether vacatur of the Court’s prior orders is warranted. Courts
4
have recognized that when a court and its judicial officer have engaged in communications
5
concerning the merits, the Court must either allow discovery or step aside from the case.
6
Edgar, 93 F.3d at 257; In re Kensington Int’l, Ltd., 353 F.3d 211, 223–25 (3d Cir. 2003);
7
Brooks, 383 F.3d at 1043–44. The United States’ invocation of a judicial privilege is
8
expressly repudiated by Edgar, which makes clear that because “[n]o privilege covers
9
arrangement of administrative details, . . . [t]o invoke a privilege is therefore to confess that
10
the discussions covered the substance of potential testimony and the conduct of the
11
litigation . . . .” 93 F.3d at 258.
12
Plaintiffs attempt to distinguish Edgar and Kensington on the ground that they did
13
not involve “post-judgment compliance,” see Plaintiffs’ Opposition to Movants’ Renewed
14
Motion for Discovery at 5 (Dec. 16, 2016) Doc. 1912 (“Pls.’ Discovery Opp.”), but for
15
reasons discussed in Part A, supra, that is a distinction without a difference. The secret
16
communications involved disputed factual questions that go to the heart of the Court’s
17
expanded injunction and contempt proceedings.
18
Nor may the Court dismiss Movants’ discovery motion because a subsequent motion
19
for recusal, based on the fruits of that discovery, may later be rejected as untimely. To the
20
extent Plaintiffs and the United States insist that the factual basis for prospective recusal is
21
insufficient, discovery will assist Movants in establishing the need for prospective recusal.
22
And as the Seventh Circuit has recognized, “passage of time is not conclusive if the
23
justification for disqualification is compelling.” Edgar, 93 F.3d at 257. Here, the grounds
24
for recusal and vacatur are particularly compelling on the record that already exists, but
25
discovery would enable the compilation of a complete record concerning the ex parte
26
communications that would fully measure their impact.
27
28

7
Case 2:07-cv-02513-GMS Document 1921 Filed 12/30/16 Page 9 of 9

1 DATED this 30th day of December, 2016.
2
COOPER & KIRK, PLLC
3
4
By /s/ Charles J. Cooper
5 Charles J. Cooper*
Michael W. Kirk*
6 Harold S. Reeves*
COOPER & KIRK, PLLC
7 1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
8
* Admitted pro hac vice
9
10 JONES, SKELTON & HOCHULI, P.L.C.
11
12 By John T. Masterson
John T. Masterson
13 Joseph J. Popolizio
Justin M. Ackerman
14 40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
15
Attorneys for Defendant Joseph M. Arpaio
16 and non-party Movants Gerard Sheridan
and Joseph Sousa
17
18
19 CERTIFICATE OF SERVICE

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

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

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

23
/s/ Charles J. Cooper
24
Charles J. Cooper
25
26
27
28

8