doj v arpaio # 351 | d.ariz._2-12-cv-00981_351

8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351

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Richard K. Walker (SBN 004159)Charles W. Jirauch (SBN 004219)WALKER & PESKIND, PLLC 16100 N. 71

st Street, Suite 140

Scottsdale, AZ [email protected]

[email protected]: 480/483-6336Facsimile: 480/483-6337

Dan K. Webb (admitted pro hac vice)

J. Erik Connolly (admitted pro hac vice)

WINSTON & STRAWN LLP

35 West Wacker Drive

Chicago, IL 60601

[email protected]

[email protected]

Phone: 312/558-5600Facsimile: 312/558-5700

Counsel for Defendant Maricopa County, Arizona

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v.

Maricopa County, Arizona; Maricopa Coun-ty Sheriff’s Office; and Joseph M. Arpaio, inhis Official Capacity as Sheriff of MaricopaCounty, Arizona,

Defendants.

NO. CV12-00981-PHX-ROS

DEFENDANT MARICOPACOUNTY’S OPPOSITION TO THEUNITED STATES’ MOTION FORSUMMARY JUDGMENT

Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 1 of 18

mailto:[email protected]:[email protected]:[email protected]://c/Users/mmg/AppData/Local/Microsoft/Local/Microsoft/Local/Microsoft/Desktop/[email protected]://c/Users/mmg/AppData/Local/Microsoft/Local/Microsoft/Local/Microsoft/Desktop/[email protected]:[email protected]:[email protected]


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INTRODUCTION

With its motion, Plaintiff seeks a shortcut to judgment against the County — collateral

estoppel based on the private action in Melendres. According to Plaintiff, “[t]he issue de-

termined in Melendres … establish[es] not only Defendant Ar paio’s liability … but that of

… [the] County as well,” because “MCSO was a defendant in the Melendres case, and

MCSO is part of the County.” U.S. MSJ 12-13. Not so. Although Plaintiff never mentions

it, over three years before the judgment in Melendres, the County was dismissed by the

plaintiffs as “not … necessary” for obtaining “complete relief.” That is exactly the County’s

position in this case. Which suggests that, if anything, Melendres should estop Plaintiff, not

the County. In any event, Plaintiff’s attempted shortcut runs headlong into the settled princi-

ple that a party cannot be estopped who “has not had a full and fair opportunity to litigate the

… issues settled in that suit.” Taylor v. Sturgell , 553 U.S. 880, 892-93 (2008). As the Coun

ty had no opportunity to litigate the issues in Melendres, it cannot be estopped.

Nor can the County be held liable under § 14141 or Title VI. Rather than analyze the

text of those statutes, Plaintiff simply assumes they support imputation. As we will show

they do not — which is doubtless why Plaintiff falls back on cases arising under a different

statute. And finally, the County did not provide any “assurances” to Plaintiff that the County

would exceed its authority under state law. And Plaintiff points to no language suggesting

otherwise. Of course, had the County attempted to promise more than it could deliver under

state law, its promises would be void and unenforceable under settled Arizona contract prin-

ciples.

The County in this brief confines itself to rebutting the arguments in Plaintiff’s Mo-

tion for Summary Judgment contending that, because the decision in Melendres purportedly



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has preclusive effect in this action on the Sheriff, it also perforce has preclusive effect on the

County. In addition to the arguments advanced herein, however, the County joins in the

Sheriff’s arguments regarding Plaintiff’s lack of standing to assert, and this Court’s lack of

jurisdiction over, the very claim that Plaintiff asserts is subject to the purportedly preclusive

effect of Melendres. The County also joins in the Sheriff’s further argument that, given

Plaintiff’s involvement in, and actions with respect to, the Melendres litigation it would be

unfair f or this Court to countenance Plaintiff’s invocation of offensive non-mutual issue pre-

clusion.

For all of these reasons, and others set forth below, the motion must be denied and the

County’s motion must be granted.

ARGUMENT

I. The County cannot be issue-precluded by a ruling in a case from which it wa

purposely dismissed before judgment as “not … necessary.”

As noted, Plaintiff says Melendres establishes the liability of both the Sheriff and the

County, because “MCSO was a defendant” in that case, “and MCSO is part of the County.”

U.S. MSJ 12-13. But as Plaintiff notes in passing, without any explanation, the “County was

not a party … Melendres … when the court determined that MCSO engaged in unconstitu-

tional discrimination.” Id . at 13. That is a big problem. After all, “[a] person who was not a

party to a suit generally has not had a full and fair opportunity to litigate the … issues settled

in that suit,” such that “[t]he application of … issue preclusion to nonparties thus runs up

against the deep-rooted historic tradition that everyone should have his own day in court.”

Taylor , 553 U.S. at 892-93 (quotation marks omitted). That has not happened here.

Rather, as noted, the plaintiffs in Melendres voluntarily dismissed the County as “not



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… necessary” to obtain “complete relief.” Here is what the motion said:

WHEREAS, Plaintif fs respectful ly submit that Defendant Maricopa County i s

not a necessary party at this juncture for obtaining the complete reli ef sought in

the First Amended Complaint ; …

WHEREAS, Defendant Maricopa County has agreed to stipulate to its dismissal

without prejudice; and

WHEREAS, Plaintiffs and Defendant Maricopa County have informed Defend-

ants Joseph M. Arpaio … and Maricopa County Sheriff's Office (“MCSO”)

through counsel, of their intent to submit this Joint Motion and Stipulation, and

counsel for Arpaio and MCSO, while not having agreed to affirmatively join in the

submission, has not indicated an intent to oppose the reli ef requested herein .

THEREFORE … Plaintif fs and Defendant Maricopa County hereby jointlymove for , and stipulate to, the dismissal wi thout prejudice of all of Plainti f fs

claims asser ted against Defendant Mari copa County [.]

Melendres v. Arpaio, 2:07-cv-25, Doc. 178 (D. Ariz. Sept. 21, 2009) (emphasis added). The

motion was granted. Id . (Doc. 194 (D. Ariz. Oct. 13, 2009)). This was more than three and

a half years before the judgment that Plaintiff here contends binds the County. U.S. MSJ 2

(citing Melendres v. Arpaio, 989 F. Supp. 2d 822, 899 (D. Ariz. 2013)).

In light of this dismissal alone, Plaintiff cannot establish issue preclusion. “To invoke

non-mutual offensive issue preclusion … [Plaintiff] must prove that: (1) [the County] was

afforded a full and fair opportunity to litigate the issues in the prior actions; (2) the issues

were actually litigated and necessary to support the judgments; (3) the issues were decided

against [the County] in final judgments; and (4) [the County] was a party or in privity with a

party in the prior proceedings.” Resolution Trust Corp. v. Keating , 186 F.3d 1110, 1114 (9th

Cir. 1999). None of these requirements is met here. The County was not (1) afforded a “full

and fair opportunity to litigate” Melendres, because the plaintiffs dropped their claims

against the County; and therefore (2) those claims were not “actually litigated and neces-



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sary”; nor were they (3) “decided against” the County “in final judgments”; and (4) the

County was neither a “party or in privity with a par ty in the prior proceedings.” Id . It was

dismissed as “not … necessary.” Again, this is the County’s position— that it is not a neces-

sary party for Plaintiff to obtain full relief.

Indeed, Plaintiff has effectively admitted in this case, as did the plaintiffs in

Melendres, that the County’s presence as a party is not necessary for obtaining complete r e-

lief. County’s Supplemental Statement of Facts at ¶1. (admitting that, in the event any ac-

tions alleged in the Complaint are found to have been violations by the Sheriff, “the Sheriff

is endowed with sufficient power and authority to bring about a cessation of any such viola-

tions”). In short, if anyone is to be precluded here by Melendres, then it should be Plaintiff.

It is no answer to say that MCSO is a “non-jural entity.” U.S. MSJ 12-13 (citing

Braillard v. Maricopa Cnty., 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010)). If anything, tha

weakens Plaintiff ’s showing even more. After all, if the requirements of issue preclusion are

not met where the original defendant is a jural entity (as we have just shown, they are not

met here), they are all the more plainly not met where that party is not a jural entity — and

thus does not even “have status as a separate legal entity.” U.S. MSJ 13. Neither of Plain-

tiff ’s cases say otherwise; both stand only for the proposition that the MCSO is a non-jural

entity. U.S. MSJ 13 (citing Braillard and this Court’s decision on the motions to dismiss in

the present case). If either of the Defendants in this case were going to be collaterally es-

topped by the findings in Melendres, it would be the Sheriff himself — who is a jural entity

and remained in the case. 989 F. Supp. 2d 822, 829 (D. Ariz. 2013) (“Sheriff Joseph Arpaio

serves as the head of the MCSO and has final authority over all of the agency’s decisions.



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He sets the overall direction and policy for the MCSO.”) (emphasis added, citation omitted).1

Nor can it be said that the County was “in privity” with the Sheriff. MSJ 13-14. “[I]n

certain limited circumstances, a nonparty may be bound by a judgment because she was ade-

quately represented by someone with the same interests who was a party to the suit. ” Harris

v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (brackets omitted, quoting Taylor v

Sturgell , 553 U.S. 880, 894 (2008)). “A party’s representation of a nonparty is ‘adequate

for preclusion purposes only if, at a minimum: (1) the interests of the nonparty and the repre-

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

capacity or the original court took care to protect the interests of the nonparty.” Id. at 1132-

33 (brackets omitted). In showing privity, “[a]dditional features of a virtual representation

relationship include a close relationship, substantial participation, and tactical maneuver ing.”

Adams v. Cal. Dept. of Health Servs., 487 F.3d 684, 691 (2007) (quotation marks omitted).

None of these requirements is met here, either. The interests of the Sheriff and the

County were not “aligned” in Melendres, because the County contested its responsibility for

the Sheriff’s actions and ultimately was dismissed because “complete relief” could be o b-

tained from the Sheriff alone. Melendres v. Arpaio, 2:07-cv-25, Doc. 178. Nor could the

Sheriff or the MCSO have “understood itself to be acting in a representative capacity” for the

County, after it was dismissed from the case as “not … necessary.” And of course the court

1 Generally, a decision against a non-jural entity is simply void. E.g., Int’l Sports Marketing

v. Saatchi & Saatchi No. Am., Inc., 2002 WL 31947978, at *4 (Mich. App. Dec. 3, 2002)(finding that LMG was a non- jural entity “not capable of being sued in its own right,” suchthat a judgment “against LMG as a division of Saatchi was void ab initio”). Gurney v. Ma-rine Life Protection Act Initiative, 2012 WL 1004764, at *1 (Cal. App. Mar. 26, 2012) (af-firming decision that “MLPAI was not an entity subject to suit” such that service of su m-mons and complaint on entity “was declared to be null” ). Fried v. Wellesley Mazda, 2010WL 1139322, at *1 (Mass. App. Mar. 9, 2010) (“[T]he default judgment entered againstWellesley Mazda is void because Wellesley Mazda is merely a trade name of HometownAuto, not a separate entity subject to suit.”)



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in Melendres did not take “care to protect the interests” of the County, which it completely

dismissed from the case. Finally, the United States has offered no evidence of “virtual repr e-

sentation,” such as a “close relationship, substantial participation, and tactical maneuvering.”

There is simply no genuine dispute here that the County was not in privity with the Sheriff.2

Indeed, if Plaintiff truly believed that a decision against the Sheriff was a decision

against the County, Plaintiff could have brought this very suit solely against the Sheriff. In-

stead, Plaintiff named the Sheriff and the County as separate defendants and made separate

summary judgment arguments against each. Compare U.S. MSJ 4-12 (arguments as to the

Sheriff) with U.S. MSJ 12-15 (arguments as to the County). Plaintiff’s arguments for issue

preclusion are makeweights. The motion for summary judgment must be denied.

II. Imputation liability is unavailable against the County.

According to Plaintiff, the evidence “establishing Defendant Arpaio’s liability … es-

tablishes the County’s as well, because Defendant Arpaio is an officer of Defendant Mar i-

copa County and its final policymaker on law enforcement matters.” U.S. MSJ 14. But as

shown in the County’s summary judgment motion , neither § 14141 nor Title VI authorizes

imputation liability.3 And even if they did, such liability could not be imposed here because

2 Plaintiff’s other cases do not change this calculus. Fridena v. Maricopa County does notinvolve collateral estoppel or privity; and although Fridena discusses whether the Sheriff is aCounty officer, the actual holding was that “in the instant case, the County, having no right

of control over the Sheriff or his deputies in service of the writ of restitution, is not liableunder the doctrine of respondeat superior for the Sheriff's torts.” 504 P.2d 58, 61 (ArizApp. 1972). Likewise, this Court’s statement that “the County is liable for the Sheriff’smisconduct” is irrelevant to the purportedly preclusive effect of another case. Finally

LaFrance v. Kitsap County involves a county in Washington State, and thus cannot be readto speak to the unique relationship between the County and the Sheriff under Arizona law.2008 WL 269009, at *4-5 (W.D. Wash. Jan. 29, 2008).3 To the extent Plaintiff suggests that vicarious liability might be available under either of

these provisions, that is plainly incorrect. See Santos v. Peralta Cmty. Coll. Dist., 2009 WL3809797, at *7 (N.D. Cal. Nov. 13, 2009) (“a theory of vicarious liability is not viable underTitle VI”); United States v. City of Columbus, 2000 WL 1133166, at *8 (S.D. Ohio Aug. 3,2000) (same, § 14141).



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the County lacks control over the specific policies at issue, which is necessary before impu-

tation liability can ever be considered against a municipality.

A. Neither § 14141 nor Title VI authorizes imputation liability.

Neither § 14141 nor Title VI imputes liability to anyone other than the allegedly ille-

gal actor. County MSJ 11-16. These provisions are unlike § 1983, “the touchstone of”

which “is an allegation that official policy is responsible for a deprivation of rights protected

by the Constitution.” Monel l v. Dep’t of Soc. Servs. of City of New York , 436 U.S. 658, 690

(1978). Because section 1983 extends liability to any person who “subjects, or causes to be

subjected” another person to a constitutional tort (42 U.S.C. § 1983), it imputes liability

“when execution of a government’s policy or custom, whether made by its lawmakers or by

those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.”

Id. at 694. Thus, the plain language of section 1983 authorizes imputation liability even

where the municipality itself does not “subject” the plaintiff to injury.

Not so here. Section 14141 renders liable any “governmental authority, or any agent

thereof, or any person acting on behalf of a governmental authority” who “engage[s] in a pat-

tern or practice of conduct by law enforcement officers.” 42 U.S.C. § 14141(a). Far from

imputing liability, this provision imposes liability only on the agent or entity that “en-

gage[d]”—“t[ook] part in,” or “involve[d] [it]self”— in the forbidden pattern or practice

Black’s Law Dictionary 528 (6th ed. 1990); see County MSJ 13.

Moreover, the fact that § 14141 offers only “equitable and declaratory relief” con-

firms that the statute does not authorize imputation liability. 42 U.S.C. § 14141(b). Imputa-

tion liability makes sense under § 1983 because a successful private plaintiff can recover

monetary damages, and at least one defendant must have the funds to pay that recovery. Im-



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putation thus ensures that a plaintiff is not left with an unrecoverable award. In contrast, im-

posing imputation liability under § 14141 would serve no compensatory purpose. The only

recovery available under § 14141 — equitable and declaratory relief — is fully accomplished

by an order impacting the agent or entity that directly engaged in the forbidden practice.

Nor is imputation liability created by Title VI. Plaintiff has not cited, and the County

has not found, any case relying on imputation to impose equitable relief under that provision,

which lacks the language used in § 1983 that led the Supreme Court to impute liability under

that statute. Rather, Title VI liability focuses on whether the defendant acted with a

“[d]iscriminatory purpose.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979); see

Alexander v. Sandoval , 532 U.S. 275, 280 (2001) (“Title VI itself directly reaches only in-

stances of intentional discrimination.” (internal quotation marks and alteration omitted))

Here, the only Defendant that Plaintiff claims acted with discriminatory intent is the Sheriff,

and Plaintiff cannot impose liability under Title VI against the County on that basis.

Both of these statutory readings are bolstered by the Supreme Court’s command that

“if Congress intends to alter the usual constitutional balance between States and the Federal

Government, it must make its intention to do so unmistakably clear in the language of the

statute.” Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 787

(2000) (internal quotation marks omitted). This is especially true “when a party seeks in-

junctive relief in federal court against a state or local government or governmental entity,”

since “concerns of federalism counsel respect for the integrity and function of those bodies.”

Signature Prop. Int’l Ltd. P’ship v. City of Edmond , 310 F.3d 1258, 1269 (10th Cir. 2002)

Yet Plaintiff seeks to impose such injunctive relief against the County — even while refusing

to say what the order would command, or explain how enjoining the County will halt con-



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duct over which Plaintiff says the Sheriff has “final” author ity (U.S. MSJ 14), any more or

better than an injunction against the Sheriff.

As Plaintiff offers no statutory basis for liability, its motion for summary judgment

should be denied and the County’s should be granted.

B. Liability cannot be imputed here because the County cannot control th

Sheriff.

Even if liability generally could be imputed under § 14141 or Title VI (it cannot),

such liability could be no broader than that provided under § 1983. Monell , 436 U.S. at 690

Doc. 43 at 6-7 (admitting the same). Under that statute, the Sheriff’s actions cannot be im-

puted to the County without evidence showing that the County “caused” him to engage in the

complained-of conduct. Monell , 436 U.S. at 695. As discussed in the County’s Motion for

Summary Judgment (at 8-10, 17), the undisputed evidence shows that the County has no

control over the Sheriff’s policies and practices related to law enforcement or jailing. Thus

the “[S]heriff’s policy or act cannot be said to speak for the county” (Grech v. Clayton Cnty.

335 F.3d 1326, 1331 (11th Cir. 2003)), and the Sheriff’s liability, if any, cannot be imputed

to the County. See County MSJ 16-17. For this reason, the motion should be denied.4

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As previously discussed, earlier cases do not fully analyze whether the County exerts suf-ficient control over the Sheriff under the tests applicable to § 1983 actions. County MSJ 17

Those cases involved monetary relief that the County was responsible for paying regardless

of imputation liability. See Payne v. Arpaio, 2009 WL 3756679 (D. Ariz. 2009) (“Maricopa

County pays its own debts, and it funds the Sheriff’s official functions. Whether the County

or the Sheriff is liable [for damages under, inter alia, § 1983] is of no practical conse-

quence.”). Here, by contrast, Plaintiff seeks injunctive relief against the County based on the

Sheriff’s actions, and the County thus seeks an opportunity to brief this issue fully if the

Court considers it necessary to reach it. Id. Of course, the Court need not reach the issue

because liability cannot be imputed under § 14141 or Title VI in the first place.



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III. The County cannot be held liable based on a supposed breach of contractual as

surances required by the United States.

Plaintiff next says it is entitled to summary judgment on Claim 5, which alleges that

the County “violated its contractual assurances to require that Defendant Arpaio and MCSO

comply with Title VI and its implementing regulations prohibiting discrimination by

MCSO.” U.S. MSJ 15. According to Plaintiff, “the contractual assurances signed by the

County and in effect from 2008 to 2016 provide that the Coun ty ‘will comply (and will r e-

quire any subgrantees or contractors to comply) with any applicable statutorily-imposed

nondiscrimination requirements,’ including Title VI.” Id. Relying on the alleged (but dis-

puted) fact that the Sheriff “violate[d] the nondiscrimination provisions of Title VI,” Plaintiff

claims the County must have failed to “require its subrecipient, Defendant Arpaio, to co m-

ply” with Title VI and hence the County “breach[ed] … its contractual assurances.” Id. at

15-16. Plaintiff is mistaken for a host of reasons.

A. The County never agreed that it could, or would, exert control over the

Sheriff that was beyond its lawful powers.

As an initial matter, Plaintiff fails to show that the County breached its contractual as-

surances, read in light of state law governing the relationship between the County and the

Sheriff. According to Plaintiff, the County stated that it would “require” the Sheriff to com-

ply with Title VI. U.S. MSJ 15. Like all contractual provisions, that provision “must be in-

terpreted in light of existing Arizona statutes pertaining to” the subject -matter of the agree-

ment. Banner Health v. Med. Sav. Ins. Co., 163 P.3d 1096, 1099 (Ariz. Ct. App. 2007)

Black-letter law requires that “[c]ontractual language … be interpreted in light of existing

law, the provisions of which are regarded as implied terms of the contract, regardless of



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whether the agreement refers to the governing law.” Paczosa v. Cartwright Elem. Sch. Dist

No. 83, 213 P.3d 222, 226 (Ariz. Ct. App. 2009) (quoting 11 Williston on Contracts § 30:19,

at 206, 211 (4th ed. 1999)); see Sch. Dist. No. One of Pima Cnty. v. Hastings, 472 P.2d 44

46 (Ariz. 1970) (“[T]he Constitution and laws of the State are a part of every contract.”).

Here, as discussed in the County’s summary judgment motion (at 8-11), the Sheriff is

a constitutionally independent officer established by Arizona law. Ariz. Const. art. XII

§§ 3-4. The Sheriff is elected by the citizens of Maricopa County (id. art. XII, § 3), and his

duties are set forth in detail by Arizona law. See A.R.S. § 11-441(A)(1), (2), (5) (“[t]he sher-

iff shall … [p]reserve the peace,” “[a]rrest … all persons who attempt to commit or who

have committed a public offense,” and “[t]ake charge of and keep the county jail … and the

prisoners in the county jail”). Neither the County nor the Board of Supervisors has authority

over these duties — the Sheriff alone does. See id. § 11-251.

Thus, the contract language at issue here naturally means the Board will take action

consistent with its authority, to ensure that the Sheriff complies with obligations attendant

upon the receipt of federal financial assistance. Confirming this conclusion, Plaintiff has not

identified what action the Board failed to take, consistent with the limits on its authority, that

would have ensured that the Sheriff did not engage in forbidden practices. The argument

from “contractual assurances” is meritless.

B. Even if the contractual assurances required the County somehow to exercise authority it does not possess, to that extent they would be invalid.

In any event, it is well-settled that “[i]f a municipal corporation enters into a contract

that it has no power to make,” the contract “is ultra vires and unenforceable.” 64 C.J.S. Mu-

nicipal Corporations § 1203. “All the powers of a municipal corporation are derived from



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the law and its charter” (56 AM. JUR . 2d MUNICIPAL CORPORATIONS § 179), and “persons

dealing with” municipalities “are bound, at their peril, to know the extent and limits of their

power and that no right can be acquired except that predicated upon authorized acts.” Bow-

man v. Bd. of Regents of Univ. & State Colleges of Arizona, 785 P.2d 71, 75 (Ariz. Ct. App

1989) (quoting Pinal Cnty. v. Pomeroy, 139 P.2d 451, 454-55 (Ariz. 1943)); see also Ryan v

Thomas, 53 P.2d 863, 864-65 (Ariz. 1936) (“[A]ny person dealing with a municipal corpor a-

tion is bound to do so subject to the limitations imposed by law upon the corporation.”).

Thus, where a party enters into a contract with the County that “[t]he County did not

have the power to agree to,” “the contract is invalid.” Pima Cnty., 386 P.2d at 402; see also

Bd. of Sup’rs of Maricopa Cnty. v. Woodall , 586 P.2d 628, 631 (Ariz. 1978); accord 10

McQuillin Mun. Corp. § 29:4 (3d ed.) (“The municipal corporation cannot in any manner

bind itself by any contract which is beyond the scope of its powers”); 56 AM. JUR . 2d MU

NICIPAL CORPORATIONS § 437 (“An ultra vires contract of a municipal corporation is one

that the corporation has no power to make under any circumstances or for any purpose[, and

u]ltra vires contracts of a municipal corporation are void.”).

Here, the County’s authority over the Sheriff is strictly circumscribed by Arizona’s

Constitution and laws. See supra Part III.A; County MSJ 8-11. If Plaintiff is right that the

assurances’ reference to the County “requir[ing]” the Sheriff “to comply” with Title VI were

construed to mean that the County had to direct the Sheriff how to perform his statutorily

prescribed law enforcement and jail administration duties, those portions of the assurances

would be void and unenforceable. The Title VI contractual assurances cannot be interpreted

or enforced in a manner that would expand the authority of the Board beyond the strict limits

created by Arizona law. The Board’s authority is defined by Arizona law, not Plaintiff’s pr e-



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ferred interpretation of a contract.

Take, for example, Woodall , in which the Maricopa County Board of Supervisors

signed a contract purporting “to employ private counsel to advise the Board and other county

officers.” Woodall , 586 P.2d at 631. Because the Board at that time had “no authority to

employ private counsel” under either the Constitution of Arizona or Arizona state law, the

Arizona Supreme Court held that “the contracts of employment by which the ‘in -house law-

yers’ were engaged … are ultra vir es and void.” Id.

Similarly, in Bank of Lowell v. Cox, 279 P. 257 (Ariz. 1929), the Arizona Supreme

Court held that a debt collector could not collect money owed by Cochise County because

contracting the debt exceeded the County’s powers. Id . at 262-63. The County had entered

into a contract that was beyond its approved budget, and the budget laws deprived the Coun-

ty of authority to enter such a contract. Id. at 261. Thus, the Arizona Supreme Court ex-

plained, the contract “was ultra vires and void.” Id. at 262. The County could not be re-

quired to pay the money due under its purported contractual obligation: “We can but enforce

the law as it is written, and all those who deal with any public officers … must at their peril

take knowledge of the[ir] limitations.” Id. at 263.

And in Pima County, the Arizona Supreme Court held that a contract between a coun-

ty and a railroad requiring the county to pay for the installation of railroad signals was “inv a-

lid” because “[t]he County did not have the power to agree to spend public money on flash-

ing signals.” 386 P.2d at 402. Thus, the “contract was ultra vires and, consequently, unen-

forceable,” and the “expense … must be born by the railroad.” Id. at 401-02.

It is irrelevant that Plaintiff may have provided “federal financial assistance for [the

County’s] programs and activities.” U.S. MSJ 15. Because “[a]ll parties dealing with pu blic



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officers are conclusively bound to know the limits of the powers of the latter,” “an u ltra vires

contract is void as to the part in excess of jurisdiction,” even in the face of “performance by

the other party”—“the illegal part” cannot “be ratified.” Bank of Lowell , 279 P. at 263; see

also Pima Cnty., 386 P.2d at 401 (holding that a County’s contract was “ultra vires and, con-

sequently, unenforceable even though the [other party] has fully performed”); Trico Elec

Co-op. v. Ralston, 196 P.2d 470, 475 (Ariz. 1948); 64 C.J.S. MUNICIPAL CORPORATIONS

§ 1203 (“A municipality is free to deny the validity of a contr act that was beyond the munic-

ipality’s power to make, and thus of no legal effect, even though the other party has fully

performed its part of the contract or has expended money on the faith thereof.”); 10A

MCQUILLIN MUN. CORP. § 29:116 (3d ed.) (same).

C. In any event, Title VI does not authorize public enforcement lawsuits.

If that were not enough (it is), as the County showed in its summary judgment motion

(at 5-7), Title VI does not allow the Government to bring suit to enforce compliance with

contractual non-discrimination provisions. And the County’s showing is bolstered by the

fact that Congress specifically rejected an amendment saying that the Government could do

just that.

The proposed amendment provided that the agency dispensing the funds “shall re-

quire, as a condition to the receipt of such assistance, that the recipient assume a legally en-

forceable undertaking designed to” prevent the recipient from using the funds in a discrim i-

natory manner. 110 Cong. Rec. 1542 (1964). As a remedy, in case a party breached its

agreement with respect to non-discrimination, the amendment provided that “[t]he United

States district courts shall have jurisdiction of civil actions brought in connection with such

undertakings by either the United States or by any recipient aggrieved by action under any



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such undertaking.” Id .

In short, the amendment provided just what Plaintiff says it is entitled to bring here —

an action in federal court for breach of contractual assurances. The House voted, and, by an

overwhelming vote of 125-24, “the amendment was rejected.” Id . at 2414.

In determining what a bill does not mean, “[t]he rejection of a proposed amendment is

entitled to weight in statutory interpretation.” Donovan v. Hotel, Motel & Restaurant Em-

ployees & Bartenders Union, Local 19, 700 F.2d 539, 544-45 & n.8 (9th Cir. 1983) (“[T]he

Senate Committee’s reported failure to agree to the minority’s proposed amendment to [the

bill] demonstrates a Congressional refusal to grant the Secretary the very power he seeks to

exercise in this case.”); Doe v. Chao, 540 U.S. 614, 622 (2004) (“drafting history show[s]

that Congress cut the very language in the bill that would have authorized any presumed

damages,” and this was “fairly seen … as a deliberate elimination” that “precludes any hope

of a sound interpretation” to the contrary) . And here, instead of adopting Plaintiff’s pr o-

posed approach, the bill was enacted with the current language providing that the remedy for

discriminatory use of funds was to terminate the funding after an administrative hearing or

“any other means authorized by law.” 42 U.S.C. § 2000d-1. In light of the legislative histo-

ry, whatever else may fall under “any other means authorized by law,” it does not cover a

lawsuit to enforce contractual guarantees. Congress rejected that. Nor can Plaintiff grant

itself through rulemaking the power to sue if Congress has not granted it that power in the

underlying statue. See Alexander v. Sandoval , 532 U.S. 275, 291 (2001) (“[I]t is most ce r-

tainly incorrect to say that language in a regulation can conjure up a private cause of action

that has not been authorized by Congress. Agencies may play the sorcerer’s appre ntice but

not the sorcerer himself.”).



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* * *

In short, Plaintiff is not entitled to summary judgment on Claim 5. Either the relevant

provision of the assurances is properly interpreted in light of state law circumscribing the

County’s powers over the Sheriff (in which case Plaintiff does not allege any breach), or that

provision was beyond the County’s power (in which case it is invalid and unenforceable)

Ultimately, as the County has shown here and in its summary judgment motion, there is no

cause of action for Plaintiff under Title VI, and “contractual assurances” entered into under

that statute. Either way, Plaintiff’s motion must be denied, and summary judgment should

be granted in the County’s favor.

CONCLUSION

For all of these reasons, and those stated in the County’s Motion for Summary

Judgment, the Court should deny Plaintiff’s motion and enter judgment in favor of the

County.

DATED: November 14, 2014

WALKER & PESKIND, PLLC

By:/s/ Richard K. WalkerRichard K. WalkerCharles W. Jirauch16100 N. 71st Street, Suite 140Scottsdale, Arizona 85254-2236

WINSTON & STRAWN, LLP

By:/s/ Dan K. WebbDan K. Webb (admitted pro hac vice)

J. Erik Connolly (admitted pro hac vice)

35 West Wacker Drive

Chicago, IL 60601

Counsel for Defendant Maricopa County, Arizona



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NOTICE OF ELECTRONIC FILING AND CERTIFICATE OF SERVICE

I hereby certify that on November 14, 2014, I electronically filed Defendant Maricopa

County’s Opposition to the United States’ Motion for Summary Judgment with the Clerk of

the Court for filing and uploading to the CM/ECF system which will send notification of

such filing to all parties of record.

/s/ Michelle Giordano


doj v arpaio # 351 | d.ariz._2-12-cv-00981_351

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