Melendres #1593 | Maricopa County Response to Nov 18 Order

8/20/2019 Melendres #1593 | Maricopa County Response to Nov 18 Order

1/14

W A

L K E R & P E S K I N D , P L L C

A t t o r n e y s a n d C o u n s e l o r s

1 6 1 0 0

N o r t h 7 1 s t S t r e e t , S u i t e 1 4 0

S c o t t s d a l e ,

A Z

8 5 2 5 4

T e l e p h o n e : ( 4 8 0 ) 4 8 3 - 6 3 3 6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Richard K. Walker, SBN 004159

Charles W. Jirauch, SBN 004219

WALKER & PESKIND, PLLC

16100 N. 71st Street, Suite 140

Scottsdale, Arizona 85254-2236

[email protected] [email protected]

Phone: (480) 483-6336

Facsimile: (480) 483-6337

Counsel for Defendant Maricopa County, Arizona

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega Melendres, et al,

Plaintiffs,

And

United States of America,

Plaintiff-Intervenor,

vs.

Joseph M. Arpaio, et al.,

Defendants.

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

DEFENDANT MARICOPA COUNTY,

ARIZONA’S RESPONSE TO

QUESTIONS POSED IN COURT’S

ORDER OF NOVEMBER 18, 2015

(DOC. 1566)

[Assigned to Judge G. Murray Snow]

Defendant MARICOPA COUNTY (“the County”),1 hereby provides its response

to certain questions posed by this Court in its Order dated November 18, 2015 (Doc

1 “Maricopa County” and “The County,” as used herein, are intended to refer to tha

“body politic and corporate” created by Article XII, § 1 of the Arizona Constitution and

A.R.S. § 11-202 (A), and to that portion of the government of Maricopa County

embodied in the Maricopa County Board of Supervisors, the Maricopa County Manager

and those appointed officials and employees of The County who serve under the

supervision and direction of the foregoing. The phrases are not intended, and should no

be construed, to refer to any other Maricopa County officer whose office is filled by the

Case 2:07-cv-02513-GMS Document 1593 Filed 12/04/15 Page 1 of 7

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


2/14

2

W A L K

E R & P E S K I N D , P L L C


1 6 1 0 0 N o r t h 7 1 s t S t r e e t , S u i t e 1 4 0


A Z 8 5 2 5 4

T

e l e p h o n e : ( 4 8 0 ) 4 8 3 - 6 3 3 6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1566). The County’s responses herein are limited because, as the County understands th

Court’s questions, all but two of them seek information that is uniquely, or at leas

primarily, in the possession, custody, or control of other parties. To the extent the Cour

seeks information within the possession, custody or control of Defendant SHERIFF

JOSEPH M. ARPAIO (“the Sheriff”) and/or any of the alleged unnamed contemnors, any

awareness of such information on the County’s part is derivative and based primarily

upon discovery conducted and/or documents or other evidence adduced by other parties

since the County was involuntarily joined as a party to this case pursuant to the Ninth

Circuit’s decision in Melendres v. Arpaio, 784 F. 3d 1254 (9th Cir. 2015).

In light of the foregoing limitations, and subject to them, the County confines it

responses herein to Question Nos. 2 and 5 in the November 18 Order. To the extent tha

the Court considers a response from the County to other questions set forth in the Order

necessary and required, the County has no reason to believe the responses provided

contemporaneously herewith on behalf of the Sheriff and the alleged unnamed

contemnors are inaccurate, and accordingly adopts them on information and belief, along

with all objections, to the extent applicable to the County, asserted in connection with

such responses.

QUESTION 2: As the Court already indicated, it feels free to consider the matter

set forth in the docket and the representations made by the parties and thei

representatives to the Court during the status conferences and in the papers filed in this

matter. It also feels free to rely on its previous findings of fact and conclusions of law. If

electoral process as provided in the Arizona Constitution (Constitutional Officers), or to

any of the officials and other employees of The County who serve under the supervision

and direction of such Constitutional Officers.



3/14

3

W A L K





A Z 8 5 2 5 4

T

e l e p h o n e : ( 4 8 0 ) 4 8 3 - 6 3 3 6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

any party objects to the Court doing so please state such objections and the basis

therefore.

The County respectfully objects to the Court’s reliance, for purposes of any

findings adverse to the County (as distinguished from the Sheriff and the alleged

unnamed contemnors), or for purposes of imposing any injunctive, declaratory, o

compensatory relief prohibiting or requiring any action by the County (again, a

distinguished from the Sheriff and the alleged unnamed contemnors), upon any matters

set forth in the docket, representations made by the parties and their representatives

papers filed, or findings made in this action at any time when the County was not a party

to the litigation.

A person who was not a party to a suit generally has not had a “full

and fair opportunity to litigate” the claims and issues settled in that

suit. The application of claim and issue preclusion to nonparties

thus runs up against the “deep-rooted historic tradition that everyone

should have his own day in court.”

Taylor v. Sturgell , 553 U.S. 880, 892-93 (2008) (quoting Richards v. Jefferson County,

517 U.S. 793, 798 (1996)).

The Court in Sturgell acknowledged that the general rule against nonparty

preclusion is subject to certain exceptions that fall into six categories. Id . at 893-95. Th

first exception, applicable when a nonparty agrees to be bound by litigation between

others, clearly has no application here. The fifth and sixth exceptions identified by

Sturgell – where a party bound by a judgment seeks to relitigate issues through a proxy

and where there is a special statutory scheme precluding successive litigation by



4/14

4

W A L K





A Z 8 5 2 5 4

T

e l e p h o n e : ( 4 8 0 ) 4 8 3 - 6 3 3 6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

nonlitigants (e.g., bankruptcy and probate proceedings) – also have no bearing on th

circumstances of this case.

The second exception to the general rule against nonparty preclusion comes into

play in “a variety of pre-existing ‘substantive legal relationships[s]’ between the person

to be bound and a party to the judgment.” Id . at 894 (citations omitted). As the Sturgel

Court explained, however, this exception “originated ‘as much from the needs of property

law as from the values of preclusion by judgment.’” Id. at 894 (quoting 18A C. WRIGHT

A. MILLER & E. COOPER , FEDERAL PRACTICE AND PROCEDURE § 4448, p. 329 (2d ed

2002)). Thus, the exception applies to relationships such as “preceding and succeeding

owners of property, bailee and bailor, and assignee and assignor.” Id . at 894. Plainly

there is no such relationship between the County and the Sheriff or the alleged unnamed

contemnors.

Pursuant to the third exception enumerated in Sturgell , “‘in certain limited

circumstances,’ a nonparty may be bound by a judgment because she was ‘adequately

represented by someone with the same interests who [wa]s a party’ to the suit.” Id . Th

Court made it clear, however, that representation of a nonparty by a party to prio

litigation is “adequate” only if: “(1) the interests of the nonparty and her representative

are aligned; and (2) either the party understood herself to be acting in a representative

capacity or the original court took care to protect the interests of the nonparty.” Id . at 900

(citation omitted); see also Harris v. Cnty. of Orange, 682 F.3d 1126, 1132-33 (9th Cir

2012).



5/14

5

W A L K





A Z 8 5 2 5 4

T

e l e p h o n e : ( 4 8 0 ) 4 8 3 - 6 3 3 6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

In this case, even Plaintiffs have acknowledged that, prior to the County’

dismissal from the case in 2009, there was adversity between the County and the other

defendants, so their interests cannot be said to have been aligned. See Brief fo

Plaintiffs-Appellees in Melendres II , C.A. No. 13-16285 and C.A. No. 13-17238, Dkt. #

51-1, at 57-60 (relevant excerpt), copy attached hereto as Exhibit “A.” In addition, ther

is nothing in the record in this case indicating that either the Sheriff or MCSO understood

themselves to be acting as representatives for the County in the wake of the County’s

dismissal, nor is there anything to suggest that this Court took special care to protect the

County’s interests during the lengthy period when it was absent from the litigation.

Finally, the fourth of the exceptions to the rule against nonparty preclusion applie

if the nonparty assumed control over the litigation producing the judgment by which the

nonparty is subsequently sought to be bound. Sturgell , 553 U.S. at 895. Here, there is no

evidence that the County exerted any control over the litigation once the claims against i

were dismissed, which would have been highly unlikely in any event in light of the

acknowledged adversity between the County and the other Defendants.

Because none of the Sturgell exceptions apply, the County cannot, consistent with

its right to the due process of law, be bound or precluded as a result of any actions by th

remaining parties, or by the district court’s rulings, from litigating any issues pertaining

to any claims asserted against the County by the Plaintiffs that were raised and/o

adjudicated while the County was not a party to the litigation.



6/14

6

W A L K





A Z 8 5 2 5 4

T

e l e p h o n e : ( 4 8 0 ) 4 8 3 - 6 3 3 6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

In addition, the County objects to the Court’s consideration of, or reliance on, fo

evidentiary purposes any statements made by counsel for any of the parties. Any such

statements should be considered advocacy entitled to no evidentiary weight.

QUESTION 5: There has been testimony that during the time that the preliminary

injunction was in effect, HSU roadside interdiction patrols detained and turned over to

ICE 171 persons for whom it had no state charges but whom it suspected of being in the

country with authorization. Although the Court recalls testimony that a similar tally

either existed or could be prepared for HSU’s work place employment raids and/or othe

activities, it cannot recall that such a tally was ever subsequently admitted into evidence

The Court also remembers Lieutenant Sousa’s testimony pertaining to overhearing radio

calls from MCSO operations that were not part of HSU, principally District II, pertaining

to the transfer of non-chargeable unauthorized persons to ICE custody.

a.

Please highlight for the Court any other testimony or exhibits that demonstrate

the number of persons that may have been impacted by the MCSO’s violation

of this Court’s preliminary injunction and the different ways in which they may

have been impacted.

b.

To the extent that the identity of such victims, or the extent of the harm done to

them, may or may not be ascertainable please indicate why.

To the extent that this question suggests the Court intends to consider and rely on

evidence pertaining to “HSU’s work place employment raids and/or other activities,”

whether for purposes of determining whether any Order of the Court has been violated, o

for purposes of identifying individuals who may have a claim for relief based on any

violations of the Court’s Order s, the County objects. All the named Plaintiffs in thi

action claim to have suffered injury only as a result of conduct alleged to have occurred

in the context of immigration-related traffic stops. None of the named Plaintiffs ha

alleged, and no proof has been adduced in this action, that they suffered any injury

arising out of any other context. Without a named Plaintiff asserting such a claim, ther



7/14

7

W A L K





A Z 8 5 2 5 4

T

e l e p h o n e : ( 4 8 0 ) 4 8 3 - 6 3 3 6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

is no “case or controversy” before the Court regarding such claims, and the Court would

exceed its powers under Article III to the U.S. Constitution if it were to consider and rely

on evidence of such matters for purposes of finding violations of its Orders, or for

fashioning relief based on any violations of such Orders determined to have occurred.

DATED this 4th day of December, 2015.

WALKER & PESKIND, PLLC

By: /s/ Richard K. WalkerRichard K. Walker, EsquireCharles W. Jirauch, Esquire16100 N. 71st Street, Suite 140Scottsdale, Arizona 85254-2236Attorneys for Defendant Maricopa County,Arizona

NOTICE OF ELECTRONIC FILING AND CERTIFICATE OF SERVICE

I hereby certify that on December 4, 2015, I electronically filed Defendan

Maricopa County, Arizona’s Response to Questions Posed in Court’s Order of Novembe

18, 2015 (Doc. 1566), with the Clerk of the Court for filing and uploading to th

CM/ECF system which will send notification of such filing to all parties of record.

/s/ Michelle Giordano



8/14

Case 2:07-cv-02513-GMS Document 1593-1 Filed 12/04/15 Page 1 of 7


9/14



10/14



11/14



12/14



13/14



14/14


Melendres #1593 | Maricopa County Response to Nov 18 Order

Documents

Transcript of Melendres #1593 | Maricopa County Response to Nov 18 Order