15-72440_9_plaintiffs opposition to notice of filing (motion to intervene)

8/20/2019 15-72440_9_Plaintiffs Opposition to Notice of Filing (Motion to Intervene)

1/52

No. 15-72440

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re JOSEPH M. ARPAIO, in his official capacity as Sheriff of Maricopa

County, Arizona

Defendants/Petitioners

and GERARD A. SHERIDAN,

Specially appearing non-party/Petitioner

v.

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF ARIZONA,

Respondent Court

and MANUEL DE JESUS ORTEGA MELENDRES, ET AL.,

Plaintiffs/Real Parties in Interest.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

2:07-cv-02513-GMS

The Honorable G. Murray Snow

United States District Judge

PLAINTIFFS-APPELLEES’ RESPONSE IN OPPOSITION TO “NOTICE

OF FILING” (MOTION TO INTERVENE)

Stanley Young

Michelle Morin

COVINGTON & BURLING LLP

333 Twin Dolphin Drive, Suite 700

Redwood shores, CA 94065-1418

Telephone: (650) 632-4700Facsimile: (650) 632-4800

[email protected]

[email protected]

Tammy Albarran


One Front Street

San Francisco, CA 94111

Telephone: (415) 591-7036

Facsimile: (415) [email protected]

(counsel continued on next page)

Attorneys for Plaintiffs-Appellees

MANUEL DE JESUS ORTEGA MELENDRES, ET AL .

Case: 15-72440, 08/20/2015, ID: 9654838, DktEntry: 9-1, Page 1 of 16

(1 of


2/52

Dan Pochoda

ACLU FOUNDATION OF ARIZONA

3707 N. 7th St., Ste. 235

Phoenix, AZ 85014

Telephone: (602) 650-1854

Facsimile: (602) 650-1376

[email protected]

[email protected]

Jorge Martin Castillo

MEXICAN AMERICAN LEGAL AND

EDUCATIONAL FUND

634 South Spring Street, 11th Floor

Los Angeles, CA 90014

Telephone: (213) 629-2512

Facsimile: (213) 629-0266

[email protected]

Cecillia D. Wang ACLU FOUNDATION

IMMIGRANTS’ RIGHTS PROJECT

39 Drumm Street

San Francisco, CA 94111Telephone: (415) 343-0775

Facsimile: (415) 395-0950

[email protected]

Anne Lai 401 E. Peltason Dr.

Law 4800-P

Irvine, CA 92697-8000


[email protected]

Andre Segura

ACLU FOUNDATION


125 Broad Street, 17th Floor

New York, NY 10004

Telephone: (212) 549-2676

Facsimile: (212) 549-2654

[email protected]


MANUEL DE JESUS ORTEGA MELENDRES, ET AL.


(2 of


3/52

i

TABLE OF CONTENTS

Page

INTRODUCTION .................................................................................................... 1

STATEMENT OF RELEVANT FACTS ................................................................. 2

ARGUMENT ............................................................................................................ 2

I. Montgomery Lacks Standing to Intervene in Arpaio’s and Sheridan’s

Mandamus Proceeding. .................................................................................. 2

II. Montgomery May Not Raise Issues Unrelated to the Mandamus

Petition. ........................................................................................................... 5

III. Montgomery Should Not Be Allowed to Preempt the District Courtand Avoid the Requirements for Intervention by Joining the

Mandamus Petition. ........................................................................................ 6

IV. The Law of the Case Bars Montgomery from Seeking the Same

Relief, from the Same Court, in the Same Proceeding, Twice. ...................... 8

CONCLUSION ......................................................................................................... 8

CERTIFICATE OF COMPLIANCE ...................................................................... 11


(3 of


4/52

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Arakaki v. Cayetano,

324 F.3d 1078 (9th Cir. 2003), as amended (May 13, 2003) ........................... 6, 7

Arizonans for Official English v. Arizona,

520 U.S. 43, 64 (1997) .......................................................................................... 2

Donnelly v. Glickman,

159 F.3d 405 (9th Cir. 1998) ................................................................................ 6

Geiger v. Kitzhaber ,

No. 14-35427, 2014 WL 8628611 (9th Cir. 2014) ............................................... 3

Herrington v. Cnty. of Sonoma,

12 F.3d 901 (9th Cir. 1993) .................................................................................. 8

Hilao v. Estate of Marcos,

393 F.3d 987 (9th Cir. 2004) ................................................................................ 3

Hollingsworth v. Perry,

133 S.Ct. 2652 (2013) ....................................................................................... 2, 3

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .............................................................................................. 3

Statutes

28 U.S.C. § 144 .......................................................................................................... 5

Other Authorities

Fed. R. App. P. 27-1................................................................................................. 11

Fed. R. App. P. 27(d) ............................................................................................... 11


(4 of


5/52

1

INTRODUCTION

Montgomery’s Notice of Filing (Dkt. 4) appears to request intervention into

the mandamus proceeding filed by Sheriff Arpaio and nonparty contemnor

Sheridan, who object to his motion. Dkt. 5. Montgomery may not intervene, and

these matters should not be consolidated, for four reasons. First, Montgomery does

not meet the standard for intervention, at least because Montgomery does not have

Article III standing.1 Second, Montgomery improperly seeks this Court’s

consideration of issues not raised by Arpaio’s and Sheridan’s petition for a writ of

mandamus. Third, Montgomery is not a party in the district court proceedings, and

his request for intervention attempts to circumvent the authority of the district

court, which has not yet ruled on Montgomery’s request to intervene on its merits

since he has not filed one through any attorney authorized to practice in the district.

Finally, Montgomery has already sought the very same relief he now seeks to

obtain by intervening in this matter (recusal), in a mandamus petition he filed last

May. He should not be heard on his repeat of the same motion, whether through

intervention into this matter or through any other vehicle. For any or all of these

reasons, the motion to intervene should be denied.

1 Plaintiffs intend to move to dismiss Montgomery’s pending appeals, No. 15-

16440 and 15-16626.


(5 of


6/52

2

STATEMENT OF RELEVANT FACTS

Plaintiffs filed a Response in Opposition to Montgomery’s Emergency

Motion for Stay on Appeal, 9th Cir. No. 15-16440, and incorporate by reference

the Statement of Relevant Facts contained therein. See Exhibit 1. In short,

Montgomery is not a party to the district court proceedings and did not participate

in them. He was retained as a confidential informant by MCSO, as part of MCSO’s

investigations into various matters, potentially including MCSO’s attempt to prove

the existence of a conspiracy theory involving the district court and the Department

of Justice’s purported efforts to “get” Sheriff Arpaio. Montgomery’s information

was ultimately discredited by MCSO, which nevertheless sought to obtain his work

product until the day before contempt hearings in the district court last April.

Testimony by Maricopa County Sheriff’s Office (“MCSO”) witnesses about Mr.

Montgomery’s activity as a confidential informant for the MCSO, and documents

in MCSO’s possession, allegedly originating from Montgomery, are

Montgomery’s only connection to this case.

ARGUMENT

Montgomery Lacks Standing to Intervene in Arpaio’s and Sheridan’sI.

Mandamus Proceeding.

Anyone seeking to invoke the power of the federal courts, including when

intervening to seek appellate review, must have Article III standing. Hollingsworth

v. Perry, 133 S.Ct. 2652, 2661 (2013) (citing Arizonans for Official English v.


(6 of


7/52

3

Arizona, 520 U.S. 43, 64 (1997)). Article III standing requires injury in fact, a

causal connection between the injury and the challenged action, and a likelihood

that the injury will be redressed by a favorable decision. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992). Additionally, in the Ninth Circuit, a

nonparty has standing to appeal only in “exceptional circumstances,” when the

appellant participated in the district court proceedings as a nonparty, has a

“personal stake in the outcome of the litigation discernible from the record,” and

the equities of the case weigh in favor of hearing the appeal. Hilao v. Estate of

Marcos, 393 F.3d 987, 992 (9th Cir. 2004).

Montgomery lacks Article III standing and does not meet the Ninth Circuit

standard for a nonparty appeal.2 He was not ordered to do or refrain from doing

anything by the district court, and no judgment has been entered against

Montgomery by the district court. He is not an MCSO employee and has no direct

interest in the issues raised by the petition for a writ of mandamus, nor in the

district court’s ongoing contempt proceeding. He therefore does not possess a

personal and “direct stake in the outcome” of the case sufficient to establish

standing to participate in appeal proceedings. Hollingsworth, 133 S.Ct. at 2662.

See also Geiger v. Kitzhaber , No. 14-35427, 2014 WL 8628611, at *1 (9th Cir.

2 See 15-16440, Plaintiffs’ Opposition to Montgomery’s Emergency Motion for

Stay on Appeal, Statement of Relevant Facts and Section I, incorporated herein by

reference.


(7 of


8/52

4

2014) (putative appellate intervenor must both prevail in its appeal of the district

court’s denial of its motion to intervene, and demonstrate Article III standing to

challenge the district court’s final judgment).

Montgomery asserts that he has unspecified “legal and property rights” but

fails to link these rights to the requested relief.3 It is far from clear that recusal

would change the ownership or discoverability status of any documents provided

by Montgomery to MCSO. He has therefore failed to show any causal connection

between the alleged injury to these property rights and the challenged order (the

district court’s refusal to recuse itself).

Montgomery also has failed to demonstrate a likelihood that his alleged

injuries would be redressed by a favorable decision by this Court. As explained

more fully below, the only rulings made by the district court that relate to

Montgomery’s motions were denials of pro hac vice applications filed by

Montgomery’s counsel.4 Recusal is no guarantee that a new district court judge

would not make precisely the same findings that this judge made, nor that a new

judge would allow Montgomery to intervene.

For these reasons alone, Montgomery’s motion should be denied.

3 Id., Section I.

4 Id.


(8 of


9/52

5

Montgomery May Not Raise Issues Unrelated to the MandamusII.

Petition.

Though both Montgomery’s requested relief (recusal of the district court)

and the relief requested by the petition for a writ of mandamus are, according to

Montgomery, “virtually identical,” Montgomery’s proposed intervention “to

protect his legal and property rights” would needlessly interject a number of new

issues into this court’s consideration of the mandamus petition: first, whether

Montgomery has a right to be heard on the recusal issue; second, whether

Montgomery has any legally cognizable “property rights” that have been violated

by the district court contempt proceedings; and third, whether the district court

properly exercised its discretion to deny the pro hac vice applications of

Montgomery’s counsel. In addition, Montgomery states that his request that the

Ninth Circuit also vacate the orders issued by the district court, and his affidavit

under 28 U.S.C. § 144 (No. CV07-2513, Dkt. No. 1067, Exhibit 2) are the only

differences between these motions, but he is mistaken. A disqualification of the

judge (as sought by both Sheriff Arpaio and Sheridan, and Montgomery) would not

automatically result in the vacating of all of the district court’s prior orders. Arpaio

and Sheridan allege that the grounds for disqualification arose only in April.

Accordingly, no basis for vacating prior orders would exist even if the judge were

now removed from the case, as Arpaio and Sheridan request. Montgomery’s


(9 of


10/52

6

intervention would require this Court to consider the merits of Montgomery’s

additional requests to vacate.

The request to consolidate (intervene) should be denied because these are

not the issues raised in Arpaio’s and Sheridan’s petition for a writ of mandamus.

See, e.g., Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003),as amended

(May 13, 2003) (putative intervenor is not permitted to inject new, unrelated issues

into pending litigation); Donnelly v. Glickman, 159 F.3d 405, 409-10 (9th Cir.

1998) (denying intervention on the grounds that putative intervenors’ interests

were unrelated to the underlying litigation).

To the extent Montgomery wishes to be heard only on the same issue raised

in the mandamus petition, Montgomery has not overcome the presumption that the

existing parties will adequately represent his interests. Arakaki, 324 F.3d at 1086-

87 (where parties share the same ultimate objective, differences in litigation

strategy do not justify intervention). Furthermore, such an appeal would be barred

by the law of the case. Infra, Section IV.

Montgomery Should Not Be Allowed to Preempt the District Court andIII.

Avoid the Requirements for Intervention by Joining the Mandamus

Petition.

With respect to Montgomery, the district court has only ruled on (and

denied) the pro hac vice applications of Montgomery’s counsel. The district court

has declined to consider the merits of motions filed without leave by attorneys not


(10 of


11/52

7

admitted to practice in the District of Arizona—including Montgomery’s motion to

intervene. The consolidation of appeals Montgomery seeks is not the proper

vehicle for requesting appellate reconsideration of the district court’s decisions

regarding these pro hac vice motions.

Had the district court had occasion to rule on Montgomery’s motion to

intervene on its merits, that motion surely would have been denied. A party

seeking to intervene as of right, as Montgomery did, must meet four requirements:

(1) the applicant must timely move to intervene; (2) the applicant must have a

significantly protectable interest relating to the property or transaction that is the

subject of the action; (3) the applicant must be situated such that the disposition of

the action may impair or impede the party’s ability to protect that interest; and (4)

the applicant’s interest must not be adequately represented by existing parties.

Arakaki, 324 F.3d at 1083. Montgomery did not meet these requirements. He had

no constitutional standing to raise any issue in the district court, he demonstrated

no legally cognizable interest relating to the subjects of the district court action (the

violation of plaintiffs’ constitutional rights by Sheriff Arpaio and MCSO, and the

determination of the scope of and appropriate remedies to address the defendants’

civil contempt of the court’s orders), and disposition of the district court’s

contempt proceedings would have no effect on Montgomery’s claim to “property

rights,” which are not at issue in that proceeding.


(11 of


12/52

8

Yet Montgomery asks this Court to allow him to be heard now, on the issue

of the district court’s authority to conduct the contempt proceedings. This “notice

of motion” is nothing more than an attempted end-run around the district court’s

authority to rule on Montgomery’s request to intervene in the first instance. For

this reason as well, the motion should be denied.

The Law of the Case Bars Montgomery from Seeking the Same Relief,IV.

from the Same Court, in the Same Proceeding, Twice.

This is not the first time Montgomery has sought this Court’s assistance in

bringing the district court proceedings to a halt. He filed a petition for a writ of

mandamus in May of this year, seeking the very same relief (disqualification of the

district court). No relevant facts have changed since May. See 15-16440, Plaintiffs’

Opposition to the Emergency Motion for Stay on Appeal, Statement of Facts and

Section III. Under the law of the case doctrine, he should not be heard on this same

request twice. Herrington v. Cnty. of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993)

(“The law of the case doctrine states that the decision of an appellate court on a

legal issue must be followed in all subsequent proceedings in the same case.”)

(quotation omitted).

CONCLUSION

For all the above reasons, Montgomery’s request to consolidate or intervene

should be denied.


(12 of


13/52

9

Dated: August 20, 2015 By /s/ Stanley Young

Stanley Young

Michelle Morin

[email protected]

[email protected]



Redwood Shores, CA 94065-1418

Telephone: (650) 632-4700

Facsimile: (650) 632-4800

Tammy Albarran

[email protected]


1 Front StreetSan Francisco, CA 94111-5356

Telephone: (415) 591-7066

Facsimile: (415) 955-6566

Dan Pochoda

[email protected]

ACLU FOUNDATION OF

ARIZONA

3707 N. 7th St., Ste. 235

Phoenix, AZ 85014

Telephone: (602) 650-1854

Facsimile: (602) 650-1376

Cecillia D. Wang

[email protected]

ACLU FOUNDATION

Immigrants’ Rights Project

39 Drumm Street

San Francisco, California 94111Telephone: (415) 343-0775

Facsimile: (415) 395-0950

Andre Segura

[email protected]

ACLU FOUNDATION


(13 of


14/52

10



New York, NY 10004

Telephone: (212) 549-2676

Facsimile: (212) 549-2654


[email protected]

MEXICAN AMERICAN LEGAL

DEFENSE AND EDUCATIONAL

FUND


Los Angeles, California 90014

Telephone: (213) 629-2512

Facsimile: (213) 629-0266

Anne Lai

[email protected]

401 E. Peltason, Suite 3500

Irvine, CA 92697-8000

Telephone: (949) 824-9894

Facsimile: (949) 824-0066



(14 of


15/52

11

CERTIFICATE OF COMPLIANCE

I certify that pursuant to Fed. R. App. P. 27-1, the attached brief is in

compliance with Fed. R. App. P. 27(d) and does not exceed 20 pages.

Date: August 20, 2015 /s/ Stanley Young .

STANLEY YOUNG


(15 of


16/52

12

CERTIFICATE OF SERVICE

I hereby certify that on August 20, 2015, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by

the appellate CM/ECF system.

Date: August 20, 2015 /s/ Stanley Young . STANLEY YOUNG


(16 of


17/52

EXHIBIT 1


(17 of


18/52

No. 15-16440

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL DE JESUS ORTEGA MELENDRES, ET AL.,

Plaintiffs-Appellees

v.

JOSEPH M. ARPAIO,

Defendant-Appellant

and

DENNIS L. MONTGOMERY, Putative Intervenor.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

2:07-cv-02513-GMS

The Honorable G. Murray Snow

United States District Judge

PLAINTIFFS-APPELLEES’ RESPONSE IN OPPOSITION TO

EMERGENCY MOTION FOR STAY ON APPEAL

Stanley Young

Michelle L. Morin



Redwood shores, CA 94065-1418

Telephone: (650) 632-4700

Facsimile: (650) [email protected]

[email protected]

Rebecca A. Jacobs


One Front Street


Telephone: (415) 591-7036

Facsimile: (415) 955-6566

[email protected](counsel continued on next page)



Case: 15-16440, 08/20/2015, ID: 9654788, DktEntry: 7-1, Page 1 of 29 Case: 15-72440, 08/20/2015, ID: 9654838, DktEntry: 9-2, Page 2 of 36

(18 of


19/52

ii

Priscilla Dodson


One CityCenter

850 Tenth Street NW

Washington, DC 20001-4956

Telephone: (202) 662-5996

Facsimile: (202) 778-5996

[email protected]

Andre Segura

ACLU FOUNDATION



New York, NY 10004

Telephone: (212) 549-2676

Facsimile: (212) 549-2654

[email protected]

Dan Pochoda

ACLU FOUNDATION OF ARIZONA

3707 N. 7th St., Ste. 235

Phoenix, AZ 85014Telephone: (602) 650-1854

Facsimile: (602) 650-1376

[email protected]

[email protected]

Jorge Martin Castillo MEXICAN AMERICAN LEGAL AND

EDUCATIONAL FUND

634 South Spring Street, 11th FloorLos Angeles, CA 90014

Telephone: (213) 629-2512

Facsimile: (213) 629-0266

[email protected]

Cecillia D. Wang

ACLU FOUNDATION


39 Drumm Street


Telephone: (415) 343-0775

Facsimile: (415) 395-0950

[email protected]

Anne Lai

401 E. Peltason Dr.

Law 4800-P

Irvine, CA 92697-8000

Telephone: (949) 824-9894

Facsimile: (949) 824-0066

[email protected]




(19 of


20/52

i

TABLE OF CONTENTS

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

STATEMENT OF RELEVANT FACTS ................................................................. 1

1. Selected Procedural History ................................................................. 1

2. Testimony and Documents Produced Regarding MCSO’s

Investigation ......................................................................................... 2

3. Montgomery’s Previous Motions to Intervene and to Recuse the

District Court ........................................................................................ 4

4. Sheriff Arpaio’s Motions Seeking Recusal and Stay ........................... 7

5. Order on Discoverability of MCSO Documents AllegedlyProvided by Montgomery ..................................................................... 7

ARGUMENT ............................................................................................................ 9

I. The “Emergency Motion” Should Be Denied Because

Montgomery Lacks Standing to Intervene in Either the District

Court or the Appellate Proceedings. .................................................... 9

II. The “Emergency Motion” Should Be Denied Because

Montgomery Seeks Review of Matters Not Yet Considered bythe District Court. ............................................................................... 14

III. The “Emergency Motion” Duplicates Other Pending and

Resolved Motions, Yet Cites No Changed Circumstances

Warranting Separate Consideration. .................................................. 14

IV. The “Emergency Motion” Should Be Denied Because The

Weight of the Nken Factors Does Not Warrant a Stay. ..................... 15

CONCLUSION ....................................................................................................... 20


(20 of


21/52

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) .............................................................................................. 13

Herrington v. Cnty. of Sonoma,

12 F.3d 901 (9th Cir. 1993) ................................................................................ 15

Hilao v. Estate of Marcos,

393 F.3d 987 (9th Cir. 2004) .............................................................................. 13

Hilton v. Braunskill ,

481 U.S. 770 (1987) ............................................................................................ 16

Hollingsworth v. Perry,

133 S. Ct. 2652 (2013) .................................................................................. 10, 13

Lair v. Bullock ,

697 F.3d 1200 (9th Cir. 2012) ............................................................................ 15

Lujan v. Defenders of Wildlife,504 U.S. 555 (1992) ............................................................................................ 10

Melendres v. Arpaio,

784 F.3d 1254 (9th Cir. 2015) .............................................................................. 1

Nken v. Holder ,

556 U.S. 418 (2009) ............................................................................................ 15

Turner v. Rogers,

131 S.Ct. 2507 (2011) ......................................................................................... 16

United States v. Ensign,

491 F.3d 1109 (9th Cir. 2007) ............................................................................ 16

United States v. Ries,

100 F.3d 1469 (9th Cir. 1996) ............................................................................ 18


(21 of


22/52

iii

Other Authorities

Fed. R. App. P. 27-1................................................................................................. 23

Fed. R. App. P. 27(d) ............................................................................................... 23

LRCiv. 83.1(b) ......................................................................................................... 16


(22 of


23/52

1

Putative intervenor Dennis Montgomery (“Montgomery”), through his

Emergency Motion for Stay on Appeal (the “Emergency Motion,” Dkt. 5), again

seeks the district court’s recusal, and further asks this Court to stay the district

court proceedings pending reconsideration of his request. Yet the district court has

issued no orders regarding Montgomery himself, nor has the Court ordered any

property in Montgomery’s possession seized or disclosed, nor has the district court

entered any judgment against Montgomery. For these and the additional reasons

set forth herein, the motion should be denied.

STATEMENT OF RELEVANT FACTS1

1.

Selected Procedural H istory

This case’s lengthy procedural history includes the district court’s ruling that

Sheriff Arpaio and the Maricopa County Sheriff’s Office (“MCSO”) violated the

Fourth and Fourteenth Amendment rights of the Plaintiff class, the court’s entry of

orders for various associated injunctive relief measures, and the court’s

appointment of a Monitor to supervise and assess Defendants’ implementation of

and compliance with the injunction. See, e.g., No. CV07-2513 (D. Ariz.), Dkt.

1164 (Attached as Ex. 13).

1 The facts of this case may be found in greater detail in a number of opinions of

this Court and the district court. See, e.g., Melendres v. Arpaio, 784 F.3d 1254 (9th

Cir. 2015). Only the facts relevant to the present motion are set forth herein.


(23 of


24/52

2

In February 2015, on a motion by Plaintiffs, the Court ordered MCSO,

Sheriff Arpaio, Chief Deputy Sheriff Sheridan, and others in MCSO to show cause

why they should not be held in civil contempt for violating several court orders,

including the December 23, 2011 preliminary injunction and the court’s discovery

orders. Id. at 3-4 (discussing Dkt. 880 (Attached as Ex. 1)). Arpaio and Sheridan

admitted to civil contempt, and a show-cause hearing was held in April 2015,

during which Plaintiffs put on evidence as to the facts underlying the contempt,

including whether Arpaio’s admitted contempt was an isolated incident or reflected

a pattern of resistance on his part or by MCSO to the court’s directives. The Court

indicated that this latter issue was important from a remedial perspective. Id. at 6

(citing No. CV07-2513, Apr. 23, 2015 Tr. 635:12-18 (Attached as Ex. 21)).

2. Testimony and Documents Produced Regarding MCSO’ s

Investigation

During the April hearing, the Court and Defendants’ counsel questioned

Arpaio and Sheridan about an article by Stephen Lemons published in the Phoenix

New Times on June 4, 2014. The Lemons article alleged that MCSO was paying a

confidential informant, (Putative Intervenor/Appellant) Dennis L. Montgomery, to

investigate possible collusion between the district court and the U.S. Department of

Justice. No. CV07-2513, Dkt. 1164 (Attached as Ex. 13) at 7; Dkt. 1166 (Attached

as Ex. 14) at 1, 5-13 (Declaration of Cecillia Wang, attaching a copy of the article

as Exhibit A). The Lemons article also reported that Arpaio was purportedly


(24 of


25/52

3

convinced by Montgomery that the Department of Justice and the district court had

conspired to “get” Arpaio. No. CV07-2513, Dkt. 1166 (Attached as Ex. 14) at 8.

During his testimony at the April hearing, Arpaio confirmed that MCSO was

conducting an investigation, using the Maricopa County Sheriff’s Cold Case Posse

and Montgomery, a computer consultant based out of the Seattle, Washington area.

No. CV07-2513, Dkt. 1164 (Attached as Ex. 13) at 7-8 (citing Apr. 23, 2015 Tr.

642:3-647:12 (Attached as Ex. 21)). Arpaio also confirmed that Montgomery was

given the status of confidential informant for MCSO. Id. at 8 (citing Apr. 24, 2015

Tr. 998:12-14, 1006:10-16 (Attached as Ex. 22)).

Because the district court determined that MCSO’s investigation of the

district court was relevant to the district court’s efforts to ensure Defendants’

compliance with its orders, the district court has ordered MCSO to produce,

subject to a protective order, documents and information regarding the MCSO

investigations. The documents produced thus far falsely assert the existence of

telephone calls between the district court and agents of the Department of Justice

and appear to imply that the district court authorized a wiretap on MCSO. No.

CV07-2513, Dkt. 1164 (Attached as Ex. 13) at 9-10; Dkt. 1166 (Attached as Ex.

14) at 27-46. The information Montgomery provided MCSO also included

approximately 50 hard drives of information, which Montgomery represented

contained classified information he obtained while working as a CIA contractor.


(25 of


26/52

4

No. CV07-2513, Dkt. 1166 (Attached as Ex. 14) at 17 (email from MCSO

Detective Brian Mackiewicz discussing 50 hard drives of information provided by

Montgomery); No. CV07-2513, Apr. 24, 2015 Tr. 998:3-1008:6 (Attached as Ex.

22).

MCSO reviewed these documents, and apparently concluded by November

2014 that Montgomery’s claims about the documents that he provided were

fraudulent. For example, an email from MCSO Detective Brian Mackiewicz stated

that “our experts examined the information contained on [Montgomery’s] drives”

and concluded that they contained “data dumps . . . hours of[] video feeds for Al

Jazeera news feed” and that “Montgomery deliberately [compiled] massive

amounts of data on these drives for the purpose of obfuscating the fact the data

itself contained no evidence to support [his] claims.” No. CV07-2513, Dkt. 1166

(Attached as Ex. 14) at 17. Arpaio testified that he became aware that the informer

was giving him “junk.” No. CV07-2513, Apr. 23, 2015 Tr. 650:20-25 (Attached as

Ex. 21). Yet MCSO continued to press Montgomery for work product until the day

before the April 2015 contempt hearing. No. CV07-2513, Dkt. 1164 (Attached as

Ex. 13) at 10; Dkt. 1166 (Attached as Ex. 14) at 17-26.

3. Montgomery’ s Previous Motions to I ntervene and to Recuse the

Distri ct Court

On May 8, 2015, Montgomery, through his counsel Mr. Moseley and Mr.

Klayman, filed a motion to intervene in the district court proceedings, as well as a


(26 of


27/52

5

motion to disqualify the district court from further involvement with the case. No.

CV07-2513, Dkt. 1057 (Attached as Ex. 2), Dkt. 1067 (Attached as Ex. 4). Neither

Mr. Moseley nor Mr. Klayman are members of the State Bar of Arizona;

accordingly, each attorney (first Mr. Montgomery and then, after his application

was denied, Mr. Klayman) sought to be admitted pro hac vice. See, e.g., No.

CV07-2513, Dkt. 1060 (Attached as Ex. 3), 1093 (Attached as Ex. 6), 1080

(Attached as Ex. 5). Both applications were denied for reasons including the

conflict of interest between the attorneys’ current representation of Arpaio in

another action and their proposed representation of Montgomery in the district

court. No. CV07-2513, Dkt. 1093 (Attached as Ex. 6) at 2; Aug. 11, 2015 Tr.

11:14-15:13 (Attached as Ex. 26) (oral order denying Klayman application). Mr.

Moseley and Mr. Klayman’s firm, Freedom Watch, represents the Sheriff in

another action in the United States Court of Appeals for the District of Columbia

challenging President Obama’s executive action on immigration. No. CV07-2513,

Dkt. 1167 (Attached as Ex. 15) at 3-4. Yet in the district court action and pursuant

to the court’s discovery orders, Sheriff Arpaio and MCSO have produced certain

materials in which Montgomery claims a property interest, and Sheriff Arpaio and

MCSO witnesses have testified (and are expected to further testify) that

Montgomery defrauded MCSO by providing junk information and that they do not

agree with certain positions taken by Montgomery. Id.; see also No. CV07-2513,


(27 of


28/52

6

Dkt. 1145 (Attached as Ex. 10) at 2; Apr. 23, 2015 Tr. 650:20-25 (Attached as Ex.

21).

In addition, one attorney, Mr. Klayman, could be a potential witness in the

district court matter, as the documents produced in the litigation included

nonprivileged correspondence between Klayman and MCSO employees regarding

Montgomery’s work and other matters. No. CV07-2513, Dkt. 1166 (Attached as

Ex. 14) at 17-19, 23-26; Dkt. 1198-2 (Attached as Ex. 19) at 2-4. One such email

correspondence included a communication from Sheriff Arpaio to Mr. Klayman

clarifying that Klayman does not represent Sheriff Arpaio in this litigation. No.

CV07-2513, Dkt. 1198-2 (Attached as Ex. 19) at 3.

As a result of the denial of his attorney’s pro hac vice motion,

Montgomery’s motions to intervene and disqualify were stricken, and not

considered. No. CV07-2513, Dkt. 1093 (Attached as Ex. 6) at 2. Montgomery filed

a motion for reconsideration in the district court. This was also denied. No. CV07-

2513, Dkt. 1167 (Attached as Ex. 15). On May 11, 2015, Montgomery filed a

petition for a writ of mandamus, asking this Court to compel the district court’s

recusal, and further demanding that the district court’s orders be vacated and that

Montgomery’s documents, information, and intellectual property be returned to

him. That petition was summarily denied. In re Dennis L. Montgomery, No. 15-

71443, Dkt. 2 (9th Cir. May 12, 2015) (Attached as Ex. 23).


(28 of


29/52

7

4. Sheri ff Arpaio’ s Motions Seeking Recusal and Stay

Defendant Sheriff Arpaio and non-party contemnor Gerard Sheridan also

filed a motion to recuse the district court. No. CV07-2513, Dkt. 1117 (Attached as

Ex. 8). That motion was denied, as was a motion to stay pending Ninth Circuit

appeal of the order. No. CV07-2513, Dkt. 1164 (Attached as Ex. 13); July 20, 2015

Tr. 9:20-15:8 (Attached as Ex. 24) (denying Dkt. 1171 (Attached as Ex. 17),

Sheriff Arpaio’s motion to stay); see also Dkt. 1175 (Attached as Ex. 18)

(plaintiff’s opposition to motion to stay). On August 6, 2015, Sheriff Arpaio and

Sheridan filed a petition for a writ of mandamus in this Court, requesting that the

district court be compelled to recuse himself from further proceedings. No. 15-

72440. That petition is pending, and Montgomery has filed a “notice of filing”

suggesting he desires to intervene in that matter. No. 15-72440, Dkt. 4 (Attached as

Ex. 25).

5.

Order on Discoverabil i ty of M CSO Documents Al legedly Provided

by Montgomery

The district court has continued to hold status conferences on a variety of

discovery issues, in anticipation of the continued contempt hearing scheduled to

proceed on September 22, 2015. One such issue has been the discoverability of

certain materials in MCSO’s possession relating to Montgomery’s investigations

while employed as MCSO’s confidential informant. Montgomery’s statements to

the MCSO had raised the possibility that the information he provided to MCSO


(29 of


30/52

8

included classified or “sensitive” information, or information that should have

remained the property of the U.S. Government. No. CV07-2513, July 20, 2015 Tr.

42:14-45:14 (Attached as Ex. 24). When this issue came to light in the district

court, the documents and information at issue were in the MCSO’s possession and

control—not Montgomery’s. The district court determined that the information

was discoverable—relevant, at minimum, to the ongoing contempt proceedings

and specifically to the appropriate remedy for civil contempt by the Defendants,

which has already been admitted. A central concern at the remedy stage is to

ensure defendants’ future compliance with the district court’s orders, taking into

account a long record of recalcitrant conduct. Notably, Defendants’ “investigation”

into ways to undermine the court’s authority with spurious claims of conspiracy is

inconsistent with such compliance. And any disclosure of any information that

actually warrants confidential treatment will be pursuant to a protective order

prohibiting sharing the information with anyone outside the context of the

litigation.

Because of the potentially classified status of the documents, a

representative of the U.S. Government was notified, and the documents provided

by Montgomery to MCSO were made available to the U.S. Government for a

determination of whether the documents were in fact classified or otherwise the

property of the United States. Id. This disclosure for government inspection was


(30 of


31/52

9

subject to the district court’s order that the documents not be disclosed to anyone,

other than as necessary to conduct the review. Id. See also No. CV07-2513, July

20, 2015 Tr. 42:10-44:18 (Attached as Ex. 24). The government chose to first

inspect one hard drive and two bankers’ boxes of documents. Aug. 11, 2015 Tr.

35:4-41:14 (Attached as Ex. 26).

Testimony regarding Montgomery’s confidential informant work for MCSO,

and the disclosure of documents and information he provided to MCSO, are

Montgomery’s only connection to the district court proceedings. He is not a

defendant in the civil case, nor (upon information and belief) is he currently

employed by MCSO in any capacity, nor is he presently accused of committing

criminal violations in connection with the district court proceedings. The district

court has issued no orders regarding Montgomery himself, nor has the Court

ordered any property in Montgomery’s possession seized or disclosed, nor has the

district court entered any judgment against Montgomery.

ARGUMENT

I.

The “Emergency Motion” Should Be Denied Because Montgomery

Lacks Standing to Intervene in Either the District Court or the

Appellate Proceedings.

Montgomery’s motion should be denied because he lacks Article III

standing to intervene in the district court proceedings, and therefore should not be


(31 of


32/52

10

heard on his request to stay those proceedings.2 “To have standing, a litigant must

seek relief for an injury that affects him in a ‘personal and individual way.’”

Hollingsworth v. Perry, 133 S. Ct. 2652, 2662 (2013) (quoting Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 (1992)). He must possess a “direct stake in the

outcome” of the case, id., and must demonstrate injury in fact, causal connection

between that injury and the challenged action, and a likelihood that the injury will

be redressed by a favorable decision. Lujan, 504 U.S. at 560-61.

Montgomery concedes that he lacks standing to intervene in the matters

being addressed by the district court, and that he has no stake in the outcome of

this case. See Dkt. 5 at 8-9 (“Montgomery has nothing to do with immigration,

immigration enforcement or law enforcement. He has had no involvement with,

role in, knowledge of, or experience in those topics. Montgomery has no position

on the proper way to conduct traffic stops, find probable cause, or the like.”). He

appeared to concede the same in his motion for reconsideration of the district

court’s orders denying his his attorneys’ pro hac vice motions. No. CV07-2513,

Dkt. 1112 (Attached as Ex. 7) at 3 (“In addition, Dennis Montgomery is not

seeking to take any position with regard [to] any other issues remaining in the post-

2 Plaintiffs refer to and incorporate by reference the arguments in the Opposition to

Montgomery’s “Notice of Filing” (Motion to Intervene). Plaintiffs intend to move

to dismiss Montgomery’s pending appeals, No. 15-16440 and 15-16626, as well.


(32 of


33/52

11

judgment proceedings in this case or testimony involving the allegations of

contempt of the Court’s injunction brought by the Plaintiffs.”). He is not a

contemnor, nor (upon information and belief) a defendant in any related criminal

case. The district court has made no findings against Montgomery, and its denial of

Arpaio’s and Sheridan’s recusal motion does not cause Montgomery any personal

or individual injury. He claims to desire to intervene to protect his property rights,

but no property in Montgomery’s possession has been ordered seized or

confiscated, and all the information or documents in MCSO’s possession and

allegedly provided by Montgomery have been ordered produced subject to orders

to all recipients regarding preservation of those documents’ confidentiality.

Montgomery’s alleged “property interests” relating to this case appear to be

premised upon his status as the source of discoverable documents and

electronically-stored information he placed in MCSO’s possession. But at the July

20, 2015 status conference, his counsel Mr. Klayman was unable to define any

property interest in the information being disclosed, other than by citing rulings by

a Nevada district court that held Montgomery had certain property interests in

documents at issue in the Nevada litigation. No. CV07-2513, July 20, 2015 Tr.

49:13-51:18 (Attached as Ex. 24); see also Dkt. 5 at v-vi (identifying “Nevada

Orders”). But, as the district court pointed out at the July 20 status hearing, the

Nevada orders issued in 2006 or 2007, before Montgomery allegedly collected the


(33 of


34/52

12

information at issue in this case in 2009-2010 and provided it to MCSO in 2014,

and therefore do not relate to the documents in MCSO’s possession, that have been

ordered produced in this case. No. CV07-2513, July 20, 2015 Tr. 50:14-51:18

(Attached as Ex. 24). Mr. Klayman offered no response. Id . at 51:5-8 (“I don’t

have that information, Your Honor. I don’t have it. But we want an opportunity to,

in a systematic way, put forward a brief to this Court on that issue.”). Despite again

being offered the opportunity to offer a response in his reply in support of Mr.

Klayman’s motion for admission pro hac vice, Montgomery did not do so, and has

not offered any brief to the district court on this issue. His brief seeking an

emergency stay from this Court does no better. Dkt. 5 at v-vi.

None of these theoretical “property interests” confer upon Montgomery the

constitutional standing to intervene as to the contempt proceedings in the district

court. The documents ordered produced in this case are MCSO documents that are

part of an investigation that MCSO commissioned and paid for. They have been in

MCSO’s possession for months. Montgomery has not claimed that he lent them to

MCSO or that MCSO has any obligation to give them back. If these materials are

indeed Montgomery’s property, he should sue the MCSO to get them back, rather

than trying to force his (and his attorneys’) way into this lawsuit. See, e.g., No.

CV07-2513, Dkt. 1223 (Attached as Ex. 20), Reply of Larry Klayman to

Opposition of Plaintiffs to Counsel’s Motion to Appear Pro Hac Vice at 4


(34 of


35/52

13

(complaining that Arpaio’s current attorney “frankly has not represented the

Sheriff zealously and within the bounds of the law”). In light of Montgomery’s

lack of standing in the district court and the circumstances of this case, neither

recusal nor a stay is appropriate.

Nor does Montgomery have standing to intervene at the appellate level.

Constitutional standing “must be met by persons seeking appellate review, just as it

must be met by persons appearing in courts of first instance,” because such

appellants seek to invoke the power of the federal courts. Hollingsworth, 133 S. Ct.

at 2661 (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 64

(1997)). A nonparty has standing to appeal only in “exceptional circumstances,”

where the nonparty has participated in the district court proceedings and the

equities weigh in favor of hearing the appeal. Hilao v. Estate of Marcos, 393 F.3d

987, 992 (9th Cir. 2004). Montgomery seeks to bring to a halt a years-long effort to

remedy constitutional violations by MCSO and Sheriff Arpaio against an entire

class of plaintiffs simply because he desires to prevent further unflattering

testimony about his work by MCSO witnesses, and to assert “property rights” over

material he previously provided to MCSO. These are not “exceptional

circumstances” and the equities do not favor either intervention or stay.


(35 of


36/52

14

II. The “Emergency Motion” Should Be Denied Because Montgomery

Seeks Review of Matters Not Yet Considered by the District Court.

The only issue the district court has decided against Montgomery is the

discretionary denial of pro hac vice applications filed by Montgomery’s attorneys,

who are not admitted to practice in the District of Arizona. Though Montgomery

might have standing to contest these collateral pro hac vice determinations, he is

unlikely to prevail. See infra, Section IV. Furthermore, his appeal of those orders is

no “emergency” warranting stay of the entire district court litigation. This Court’s

consideration of Montgomery’s appeal should not encompass substantive review of

Montgomery’s motion to intervene in the district court proceedings, as the district

court has not yet ruled on that question. Granting Montgomery’s motion to stay the

district court proceedings would prematurely decide this matter, preempting the

authority of the district court to rule on this issue in the first instance.

III.

The “Emergency Motion” Duplicates Other Pending and Resolved

Motions, Yet Cites No Changed Circumstances Warranting Separate

Consideration.

Montgomery’s motion should be denied for the additional reason that it is

duplicative of matters already decided by this Court, which constitute the law of

the case with respect to the relief Montgomery now seeks. This is not the first time

Montgomery has called upon this Court to disqualify the district court—he made a

virtually identical request in his May 2015 petition for a writ of mandamus. He

now adds an “emergency” request for a stay, even though no relevant facts have


(36 of


37/52

15

changed since May, and nothing about the ongoing procedures in the case below

warrants reconsideration of this Court’s previous rulings. Nor have any facts or

circumstances changed warranting reconsideration of the district court’s rulings on

these issues. Montgomery’s motion should be dismissed under the “law of the

case” doctrine. Herrington v. Cnty. of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993)

(“A court is generally precluded from reconsidering an issue previously decided by

the same court”).

IV.

The “Emergency Motion” Should Be Denied Because The Weight of theNken Factors Does Not Warrant a Stay.

Even if Montgomery had standing to request a stay of the district court

proceedings, which he does not, his request to stay should be denied because the

factors considered in weighing a request for a stay do not favor a stay in this case.

“A stay is not a matter of right.... It is instead ‘an exercise of judicial discretion’

. . . [that] ‘is dependent upon the circumstances of the particular case.’ “ Lair v.

Bullock , 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken v. Holder , 556 U.S.

418, 433 (2009)). Four factors guide the court’s analysis: “(1) whether the stay

applicant has made a strong showing that he is likely to succeed on the merits; (2)

whether the applicant will be irreparably injured absent a stay; (3) whether

issuance of the stay will substantially injure the other parties interested in the

proceeding; and (4) where the public interest lies.” Nken, 556 U.S. at 434 (citing


(37 of


38/52

16

Hilton v. Braunskill , 481 U.S. 770, 776 (1987). Montgomery fails to demonstrate

that any of these factors are present here.

Montgomery is unlikely to succeed on the merits for three reasons.

First, as set forth above, Montgomery has no standing to contest the district

court’s orders (other than perhaps the denials of Montgomery’s attorneys’ pro hac

vice motions), nor to seek the court’s recusal, either in the district court or on

appeal. Montgomery has not demonstrated that he has any direct interest in these

proceedings, and the district court has not even ruled on the merits of his motion to

intervene, but only on the merits of his attorneys’ pro hac vice applications.

Second, Montgomery has not shown that he is likely to prevail in

challenging the district court’s orders denying his attorneys’ pro hac vice

applications. Montgomery relies on law relating to the Sixth Amendment right to

counsel for defendants in criminal cases (Dkt. 5 at 6-7), when Montgomery is not a

criminal defendant, and the Sixth Amendment right to counsel does not govern

civil cases such as this one. Turner v. Rogers, 131 S.Ct. 2507, 2516 (2011). In any

event, the district court has discretion to deny pro hac vice motions such as these.

United States v. Ensign, 491 F.3d 1109, 1113 (9th Cir. 2007); LRCiv. 83.1(b). The

district court clearly stated in its written orders regarding Mr. Moseley and in its

oral order regarding Mr. Klayman that these decisions were based on the Court’s

concerns that admitting these attorneys would create a conflict of interest and in


(38 of


39/52

17

other ways disrupt the conduct of the case. No. CV07-2513, Dkt. 1093 (Attached

as Ex. 6), 1167 (Attached as Ex. 15); Aug. 11, 2015 Tr. 11:14-15:13 (Attached as

Ex. 26). The district court cited, for example, the actual and potential conflicts of

interest resulting from Klayman’s representation of Sheriff Arpaio in one matter,

and Montgomery in this matter; Mr. Klayman’s failure to address these conflicts in

his reply brief in support of his pro hac vice application; Mr. Klayman’s potential

status as a witness in this matter; acts by Mr. Klayman suggesting he will infuse

invective and unrelated issues into the case; and past disciplinary issues of Mr.

Klayman). The district court found that Mr. Moseley also could not represent

Montgomery due to actual and potential conflicts of interest resulting from Mr.

Moseley’s representation of Sheriff Arpaio in another matter, and that Mr.

Moseley’s representation of Montgomery would impede the orderly administration

of justice. No. CV07-2513, Dkt. 1167 (Attached as Ex. 15) at 4-5 (citing several

examples of Mr. Moseley’s misleading disclosures and ethical problems). Mr.

Moseley was also given the opportunity to be heard on the conflicts and other

issues, but he too failed to address the court’s concerns, either orally or in his

written submissions, which included a “Clarification” of his motion and a Motion

for Reconsideration. See No. CV07-2513, Dkt. 1093 (Attached as Ex. 6) at 2; Dkt.

1167 (Attached as Ex. 15) at 2-5. Where “an out-of-state attorney strongly suggests

through his behavior that he will neither abide by the court’s rules and practices—


(39 of


40/52

18

thus impeding the ‘orderly administration of Justice’—nor be readily answerable to

the court,” denial of pro hac vice status is appropriate. United States v. Ries, 100

F.3d 1469, 1471 (9th Cir. 1996).

Third, analysis of the harms factors counsels against a stay. Montgomery has

not shown that he will be irreparably injured absent a stay. His “property” in

MCSO’s possession is subject to MCSO’s discovery obligations and is being

handled extremely cautiously by the district court, which has ordered production of

these materials to be subject to clear restrictions against public dissemination by

any party. There is no reason to suggest that the protective orders in the district

court will be ineffective.

Moreover, Montgomery has failed to show that plaintiffs’ class will not be

harmed by a stay, or that the public interest favors a stay. This case has been active

for years. Defendants in the case below violated the constitutional rights of the

Plaintiffs’ class members and have admitted to civil contempt. The contempt

proceedings, which are focused on the particulars of how the contemnors violated

the district court’s orders, and relatedly, on determining the proper remedy, have

revealed that Sheriff Arpaio and his subordinates paid no heed to numerous orders

of this Court, that MCSO has shown little interest in administering discipline to the

persons responsible, and that Defendants violated Plaintiffs’ constitutional rights in

ways beyond those shown at trial. According to the most recent Monitor report


(40 of


41/52

19

filed July 14, 2015, MCSO is in compliance with only 40.3% of the tracked

remedies for the policies and procedures phase of implementation and 24.7% of the

tracked remedies for the operational phase of implementation, and the Monitor

reported that MCSO made “no appreciable gains” in compliance during the most

recent reporting period. No. CV07-2513, Dkt. 1170 (Attached as Ex. 16) at 3, 7.

Even if phrased narrowly, a stay of the litigation would further delay the

implementation of the Supplemental Permanent Injunction. Sheriff Arpaio applied

this very same delay tactic in the district court: after filing the recusal motion, he

initially took the position that compliance activities were stayed, contrary to the

terms of the Court’s far more limited stay order. See No. CV07-2513, Dkt. 1150

(Attached as Ex. 11) at 17 (citing id. Dkt 1150-1, Ex. G (Attached as Ex. 12) and

Dkt. 1120 (Attached as Ex. 9)).

Additionally, a stay would delay the additional relief necessary to address

Defendants’ contempt of the district court. The public, and specifically the

Plaintiff’s class, has an interest in seeing Sheriff Arpaio and MCSO’s

constitutional violations remedied immediately, and in seeing that the authority of

the court to monitor and ensure Defendants’ compliance with its orders is

respected. It will be difficult to locate the numerous contempt victims, and the

more time that passes, the fewer victims are likely to be identified. With the

passage of time, people move, addresses and phone numbers on record become


(41 of


42/52

20

stale, and memories fade. For this reason as well, Montgomery’s motion should be

denied.

CONCLUSION

For all these reasons, the Emergency Motion should be denied.

Montgomery’s request to intervene in or consolidate this matter with No. 15-72240

should also be denied.

Dated: August 20, 2015 By /s/ Stanley Young

Stanley [email protected]

Michelle L. Morin

[email protected]

Hyun S. Byun

[email protected]



Redwood Shores, CA 94065-1418

Telephone: (650) 632-4700

Facsimile: (650) 632-4800

Rebecca A. Jacobs

[email protected]


1 Front Street

San Francisco, CA 94111-5356

Telephone: (415) 591-7036

Facsimile: (415) 955-6566

Priscilla G. Dodson

[email protected]


One City Center

850 Tenth Street NW

Washington, DC 20001-4956

Telephone: (202) 662-6000


(42 of


43/52

21

Facsimile: (202) 662-6291

Dan Pochoda

[email protected]

ACLU FOUNDATION OF

ARIZONA3707 N. 7th St., Ste. 235

Phoenix, AZ 85014

Telephone: (602) 650-1854

Facsimile: (602) 650-1376

Anne Lai

[email protected]

401 E. Peltason, Suite 3500

Irvine, CA 92697-8000

Telephone: (949) 824-9894

Facsimile: (949) 824-0066

Cecillia D. Wang

[email protected]

ACLU FOUNDATION


39 Drumm Street

San Francisco, California 94111


Andre Segura

[email protected]

ACLU FOUNDATION



New York, NY 10004

Telephone: (212) 549-2676

Facsimile: (212) 549-2654


[email protected]

MEXICAN AMERICAN LEGAL

DEFENSE AND EDUCATIONAL


(43 of


44/52

22

FUND


Los Angeles, California 90014

Telephone: (213) 629-2512

Facsimile: (213) 629-0266



(44 of


45/52

23

CERTIFICATE OF COMPLIANCE

I certify that pursuant to Fed. R. App. P. 27-1, the attached brief is in

compliance with Fed. R. App. P. 27(d) and does not exceed 20 pages.

Date: August 20, 2015 /s/ Stanley Young .

STANLEY YOUNG


(45 of


46/52

24

CERTIFICATE OF SERVICE

I hereby certify that on August 20, 2015, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by

the appellate CM/ECF system.

Date: August 20, 2015 /s/ Stanley Young . STANLEY YOUNG


(46 of


47/52

EXHIBIT 2


(47 of


48/52

Case 2:07-cv-02513-GMS Document 1067 Filed 05/07/15 Page 1 of 5 Case: 15-72440, 08/20/2015, ID: 9654838, DktEntry: 9-2, Page 32 of 36

(48 of


49/52


(49 of


50/52


(50 of


51/52


(51 of


52/52


(52 of