doj v arpaio # 356 | d.ariz._2-12-cv-00981_356

8/21/2019 DOJ v Arpaio # 356 | D.Ariz._2-12-cv-00981_356

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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] Phone: 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 REPLY INSUPPORT OF ITS MOTIONFOR SUMMARY JUDGMENT

Case 2:12-cv-00981-ROS Document 356 Filed 11/24/14 Page 1 of 13

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


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INTRODUCTION

Much is not in dispute, and the few disputed issues are immaterial or purely legal.

First , Plaintiff does not dispute that, assuming the Sheriff is a § 1983-style “policy-

maker” for the County, as a matter of statutory interpretation there is no “policymaker” lia-

bility under § 14141 and Title VI. Nor does Plaintiff offer an example of any court, at any

time, applying “policymaker” liability under the statutes here. Instead, Plaintiff ask s this

Court to skip this threshold question, which the Court has thus far assumed, and treat liability

as the “law of the case.” Pl. Resp. 14. Plaintiff is wrong for a host of reasons, not least that

something can be “law of the case” only if it was “actually decided.” United States v. Jin-

gles, 702 F.3d 494, 500 (9th Cir. 2012). That did not happen here. Plaintiff is inviting error.

Second , Plaintiff does not dispute that, in Alexander v. Sandoval , 532 U.S. 275

(2001), the Supreme Court refused to imply a cause of action under Title VI because, where

“a cause of action does not exist … courts may not create one, no matter how desirable that

might be as a policy matter, or how compatible with the statute.” Id. at 286-87. And

“[h]aving sworn off the habit of venturing beyond Congress’s intent, [the Court] will not ac-

cept respondents’ invitation to have one last drink.” Id. 287. In response, Plaintiff says (at 6

n. 3) that Sandoval was about “private rights of action,” but cannot explain why the Court’s

reasoning does not directly apply here to all implied causes of action. It does.

Third , Plaintiff fails to create genuine factual dispute over its failure to provide the

County meaningful notice of any alleged improper conduct, much less a meaningful oppor-

tunity to comply, as required, by “voluntary means.” 42 U.S.C. § 2000d-1. Instead, Plaintiff

continues to insist that its notice to the Sheriff of alleged violations by his office was suffi-

cient to notify the County that it, too, was in the federal government’s crosshairs. Not so.



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Fourth, Plaintiff continues to misconstrue the law governing the County’s authority

and attempts to generate a factual dispute where there is none. And Plaintiff’s attempt to

impose its construction of Arizona’s Constitution and laws governing the distribution of au-

thority among the various institutions of county government upon those who are called on to

live within and implement those laws every day is fundamentally wrong and oversteps the

bounds of federal authority under the United States Constitution.

We address each of these points in turn.

ARGUMENT

I. Plaintiff does not dispute that imposing “policymaker” liability is impossible un-

der the text of the statutes here, an issue this Court has never addressed.

Plaintiff offers no response to the County’s showing that § 14141 and Title VI do not

authorize imputation liability. See County MSJ (Dkt. 334) 11-16; County Opp. (Dkt. 351) 5-

8. Indeed, Plaintiff completely ignores the significant textual differences between § 1983

and the statutes here. As explained, “the touchstone of the § 1983 action … is an allegation

that official policy is responsible for a deprivation of rights” ( Monell v. Dep’t of Soc. Servs

of City of New York , 436 U.S. 658, 690 (1978) (emphasis added)); and the statute extends

liability to any person who “subjects, or causes to be subjected” another person to a constitu-

tional tort. Taken together, these elements mean that liability can be imputed “when execu-

tion of a government’s policy”—“whether made by its lawmakers or by those whose edicts

or acts may fairly be said to represent official policy”—“inflicts the injury.” 436 U.S. at 694

By contrast, neither of the statutes here provides for such imputed liability. Section

14141 renders liable only the “governmental authority, or any agent thereof, or any person

acting on behalf of a governmental authority” who “engage[ s] in a pattern or practice of”



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misconduct. 42 U.S.C. § 14141(a) (emphasis added). This provision thus limits liability to

those who themselves “t[ook] part” in the misconduct. County MSJ 13. And that reading

makes perfect sense, given that, unlike § 1983, § 14141 does not authorize a private right of

action or money damages — so there would be no reason to impute liability to enjoin a party

other than the one actually “engag[ing]” in the misconduct. See id. at 14-15.

Similarly, Title VI “reaches only instances of intentional discrimination.” Alexander

532 U.S. at 281. Given that Plaintiff alleges that only the Sheriff engaged in such intentional

discrimination, it cannot be said that the County did. Thus, it is unsurprising that Plaintiff

still has not cited a case imputing liability to a municipality under either Title VI or § 14141.

In response, Plaintiff cites only a 30-year-old First Circuit decision involving a private

§ 1983 action seeking damages. Pl. Resp. 15 (citing Blackburn v. Snow, 771 F.2d 556 (1st

Cir. 1985)). But given the different statutory provisions at issue, Blackburn is irrelevant. In

fact, to the extent Blackburn has any bearing here, it supports the County’s position.

Though Plaintiff cites Blackburn for the proposition that “the Sheriff’s actions and

policies in th[e] area [of law-enforcement practices] are the County’s own actions and poli-

cies” (id.), that is not what Blackburn says. Instead, Blackburn held that because Massachu-

setts “state law expressly designates the Sheriff as the individual responsible for promulgat-

ing security policy with respect to corrections facilities,” “the Sheriff’s strip search policy

was Plymouth County’s policy, and the County must respond in damages for any injuries in-

flicted pursuant to that policy.” 771 F.2d at 571 (emphases altered). Consistent with the

County’s argument here, Blackburn focused on the “touchstone” of § 1983 actions: “official

policy.” Monell , 436 U.S. at 690 (emphasis added). Blackburn does not purport to authorize

imputed liability based on the sheriff’s “actions,” which would equate to vicarious liability



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Neither provision here authorizes such liability ( see County Opp. 5 n.3), and Plaintiff con-

ceded that it “does not argue” that the County is “vicariously liable.” Dkt. 43 at 6 n.2. In

short, section 14141 and Title VI base liability on actions, not policy.

Entirely ignoring this fundamental legal barrier, Plaintiff says the argument “must fail

under the ‘law of the case’ doctrine.” Pl. Resp. 14. But as Plaintiff’s own case explains, the

“law of the case” doctrine only applies to issues “actually decided.” United States v. Jingles

702 F.3d 494, 500 (9th Cir. 2012). And here, this Court has never addressed the County’s

showing that neither § 14141 nor Title VI authorizes policymaker liability.

In fact, Plaintiff points to no decision of this Court even considering this argument

Instead, Plaintiff quotes this Court’s order holding that “the Sheriff has final policymaking

authority with respect to County law enforcement and jails” (Pl. Resp. 14); but that is not the

issue raised by the County now.1 Instead, the issue is whether either § 14141 or Title VI im-

putes liability based on the actions of policymakers. The County argues that they do not

Plaintiff, relying only on an irrelevant § 1983 case, argues that they do. Because this legal

question has never been “actually decided,” it r emains open. Jingles, 702 F.3d at 500.

Even if the issue had been considered (it was not), it could still be reconsidered. After

all ,“[p]retrial rulings, often based on incomplete information, don’t bind district judges for

the remainder of the case.” Peralta v. Dillard , 744 F.3d 1076, 1088 (9th Cir. 2014); see also

City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper , 254 F.3d 882, 888 (9th Cir

2001) (“All rulings of a trial court are subject to revision at any time before the entry of

1 As explained in the County’s summary judgment motion, we reserve the separate issue of

whether, assuming § 14141 or Title VI authorizes imputed liability, such liability could be

found here, given the Board’s lack of control over the Sheriff in the exercise of his law en-

forcement duties. See County MSJ 16-17; County Opp. 8 & n.4. If the Court considers it

necessary to reach that issue, the County requests an opportunity to brief it fully.



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judgment.” (emphasis omitted)). And in any event, the doctrine “‘is discretionary, not man-

datory’” and is no “‘limit on [a court’s] power.’” Id. The motion should be granted.

II. Plaintiff cannot explain how it has a cause of action under the text of Title VI.

Nor does Plaintiff have any credible answer for our showing that Title VI gives plain-

tiff no right of action. “When interpreting statutes, we presume that Congress meant to con-

vey different concepts when it used different words.” In re Joye, 578 F.3d 1070, 1082 (9th

Cir. 2009). Likewise, “it is well settled that … the court will not look merely to a particular

clause in which general words may be used, but will take in connection with it the whole

statute (or statutes on the same subject).” Morrison- Knudsen Co. v. CHG Int’l, Inc., 811

F.2d 1209, 1219 (9th Cir. 1987) (emphasis added). These principles control here.

As shown in our motion, Title IV of the Civil Rights Act provides that “the Attorney

General is authorized … to institute for or in the name of the United States a civil action.”

42 U.S.C. § 2000c-6. Thus “Congress knew how to” create a cause of action “when it chose

to do so.” Cent. Bank of Denver v. First Interstate Bank , 511 U.S. 164, 176 (1994). It de-

clined to do so in Title VI. And the phrase “ by any other means authorized by law” does not

do the trick, as that phrase requires pointing to another authority. Plaintiff points to none.2

Instead of addressing this critical textual difference, Plaintiff says that other courts

have found a public right of action under Title VI. Pl. Resp. 5-6. But these cases predated

2 As discussed in the County’s Opposition to Plaintiff’s Motion for Summary Judgment (Dkt.

351, at 13-14) an amendment to Title VI was proposed expressly allowing Plaintiff to en-

force contractual non-discrimination provisions through civil actions; the amendment failed.

110 Cong. Rec. 1542, 2414 (1964). “The rejection of a proposed amendment is entitled to

weight in statutory interpretation” in determining what a bill does not mean. Donovan v. Ho-

tel, Motel & Restaurant Employees & 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.”).



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the Supreme Court’s decision in Alexander , which, as noted, refused to imply a cause of ac-

tion under Title VI. And neither of Plaintiff’s post-Sandoval cases, United States v. Miami

University, 294 F.3d 797 (6th Cir. 2002) and A.R. ex rel. Root v. Dudek , 2014 WL 3263047

(S.D. Fla. May 30, 2014), addresses Sandoval . In fact, neither of those cases arose under Ti-

tle VI at all. Miami University involved the Family Educational Rights and Privacy Act, and

Root the Americans with Disabilities Act. Neither is at issue here.

Although Plaintiff says Sandoval involved a private right of action (Pl. Resp. 6 n.3)

that formal distinction ignores the Court’s reasoning. That is, where “a cause of action does

not exist [] courts may not create one, no matter how desirable that might be as a policy mat-

ter, or how compatible with the statute.” Id. at 286-87. And “[h]aving sworn off the habit of

venturing beyond Congress’s intent, we will not accept respondents’ invitation to have one

last drink.” Id. 287. So too here.

Further, contrary to Plaintiff’s suggestion, where a statute does not create a cause of

action, Plaintiff cannot create one by writing one into its regulations. Pl. Resp. 6-8. The

government attempted this same argument in Sandoval , and the Supreme Court rejected it

532 U.S. at 291 (a regulation may invoke a cause of action that the “statutory text created

but it may not create a right that Congress has not”). This Court should do the same.

Finally, it is no answer to say that Plaintiff can sue for breach of contract (Pl. Resp

8), because the proper remedy for breach is damages. By contrast, specific performance is

an “extraordinary remedy,” available only if there is no adequate remedy at law. Dialog4

Sys. Engr’g Gmb H v. Circuit Research Labs, Inc., 622 F. Supp. 2d 814, 824 (D. Ariz. 2009).

That is not the case here. Plaintiff can seek damages from the Sheriff that (if merited) would

be paid by the County. Plaintiff has never explained why this is not an option.



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III. Plaintiff has shown no genuine dispute that it failed to notify the County of any

alleged violations of Title VI and how they might be cured.

Nor has Plaintiff shown any genuine dispute that it failed to provide the County its

statutorily required notice. As Plaintiff concedes, before suing to effect compliance with Ti-

tle VI, Plaintiff must “‘advise[] the appropriate person or persons of the failure to comply”

and Plaintiff ’s own regulations specify that this “appropriate person” is “‘[t]he [funding] re-

cipient or other person’ who has failed to comply.” Pl’s Resp. 2 (quoting 42 U.S.C. § 2000d-

1 and 28 C.F.R. § 42.108(d)(3)). Thus, Plaintiff effectively says its communications with the

County Attorney provided notice to the County because Plaintiff believed the County Attor-

ney represented the County itself as to the investigation here.

Yet Plaintiff offers no facts suggesting it had a reasonable basis for such a belief

There is no evidence that the County Attorney ever stated that he was acting as counsel to

the County. Indeed, there is no evidence he was asked whether that was the case. This is

especially remarkable given Plaintiff’s April 2012 letter to the County Attorney: “The pr e-

cise role of the County Attorney’s Office with respect to the federal investigation of the

MCSO remains unclear to us.” Maricopa County’s Supp. Statement of Facts (“SSOF”) at

¶ 1, Exh. 1 at ¶ 11 (emphasis added). That was four years after the investigation began.

Moreover, if Plaintiff thought the County Attorney represented the County in this in-

vestigation, that raises the question why Plaintiff “sat down” with members of the Board—

without the County Attorney present : “Prior to the filing of the Complaint in this case, Coun-

sel for the United States further ‘sat down with at least two county commissioners, county

supervisors, to tell them and explain to them what our findings were’ and make every at-

tempt ‘to settle this matter short of a lawsuit.’” SAF at ¶ 7 (quoting Transcript of Deposition



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of Roy L. Austin, Jr., at 231:6-22). If indeed that happened, the County Attorney was not

informed of the meeting, was not invited, and did not consent. SSOF at ¶ 6, Exh. 1 at ¶ 20

This means one of two things: Either Plaintiff did not believe the County Attorney repre-

sented the County, or Plaintiff ’s lawyers violated the Rule of Professional Conduct that “a

lawyer shall not communicate about the subject of the representation with a party the lawyer

knows to be represented by another lawyer in the matter, unless the lawyer has the consent of

the other lawyer or is authorized by law to do so.” Ariz. S. Ct. R. 42, ER 4.2.

There is no genuine dispute that the former answer is correct —as shown by Plaintiff’s

own formal December 2011 “Findings Letter” to the County Attorney, which says nothing

about the County itself having failed to comply with any Title VI obligations. Plaintiff has

no credible answer. Instead, Plaintiff points to other communications that fail to approach

the formality or specificity of the Findings Letter. Pl’s Resp. 2.

The first is a letter to the County Attorney in January 2012, in which Plaintiff men-

tions in passing that its investigation “‘potentially affects Mar icopa County as the conduit of

federal financial assistance to MCSO.’” Id . This proves nothing. Telling a party that an

investigation “potentially affects” them is a far cry from providing notice “of the failure to

comply with [Title VI].” 42 U.S.C. § 2000d-1.

Next, Plaintiff cites “written correspondence and … meetings … [discussing] a mutu-

ally agreeable resolution of the issues raised in the United States’ Findings Letter.” Pl’s

Resp. at 3. Here again, the 22-page Findings Letter alleges violations and remedial measures

by the MCSO, but says nothing about violations or remedial measures by the County.

The United States also claims, based on deposition testimony of one of its former at-

torneys, that there were “‘numerous communications’ with the County ‘notifying the County



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that the Department of Justice had determined that the County had failed, in the eyes of the

Department of Justice, to discharge responsibilities it had with respect to funding the Sher-

iff’s Office.’” Id . During these communications, according to Plaintiff, “counsel for the

United States met with [unspecified] counsel for the County, discussed ‘the County’s own

obligation with respect to MCSO,’ and informed him that what was ‘needed was something

that was transparent and accountable that showed that, in fact, MCSO was going to change

and the County was going to engage in the oversight and accountability that it’s required to

do.’” Id . Even if this undocumented meeting happened — which the County disputes (SSOF

at ¶ 3, Exh. 1 at ¶¶ 15-17) — there is no mention here of violations of Title VI, or of any fail-

ure to comply with contractual assurances. By contrast, the Findings Letter was explicit.

Finally, Plaintiff points to its letter of May 2012, sent the day before Plaintiff sued , as

evidence of the “ample notice of the Title VI violations.” Pl’s Resp. at 3-4. But here is how

that letter begins: “This is to advise you that the Department of Justice has determined that

the Maricopa County Sheriff’s Office’s compliance . . . cannot be secured through volun-

tary means.” SSOF at ¶ ¶ 1, 3, Exh. 1 at ¶ 13 (emphasis added). Although the letter later

states Plaintiff’s intent to sue the County, it never says what the County did wrong or how

the County could cure any alleged wrongs — which is not surprising, as Plaintiff filed suit the

very next day. SSOF at ¶ 3, Exh. 1 at ¶¶ 14-15.

In sum, there is no genuine issue that Plaintiff failed to notify the County as required

by law. Accordingly, the County is entitled to dismissal of all Title VI claims asserted

against it (i.e., the Third, Fourth, and Fifth Claims set forth in the Complaint).

IV. Plaintiff is mistaken that the County can cure the alleged violations here.

Plaintiff’s argument that the County “has sufficient authority over the Sheriff to ‘at



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least partially redress’ the United States’ injuries . . .” (Pl’s Resp. at 9) misreads Arizona law

In Arizona, a county’s “authority is limited to those powers expressly, or by necessary

implication, delegated to [i] by the state constitution or statutes.” Home Builders Ass’n of

Central Ariz. v. City of Maricopa, 215 Ariz. 146, 149, 215 P.3d 869, 872 (App. 2007). The

key statute here is A.R.S. § 11-201 (attached as Appendix A), which provides that county

boards may only “[d]etermine the budgets of all elected and appointed county officers enu-

merated under § 11-401 [including sheriffs] by action of the board of supervisors.” A.R.S. §

11-201(A)(6). That is not enough.

Thus, Plaintiff turns to A.R.S. § 251(1), which provides that county boards may “su-

pervise the official conduct of all county officers … charged with assessing, collecting, safe-

keeping, managing or disbursing the public revenues, see that such officers faithfully per-

form their duties and direct prosecutions for delinquencies, and, when necessary, require the

officers to renew their official bonds, make reports and present their books and accounts for

inspection.” The problem here is that § 251(1) applies only to “county officers . . . charged

with assessing, collecting, safekeeping, managing or disbursing the public revenues . . . .”

A.R.S. § 251(1) (emphasis added). And Plaintiff has made no showing that the Sheriff or

MCSO are engaged in any of those activities.

Further, none of the evidence offered by Plaintiff suggests that the Board can super-

vise or direct the Sheriff in the areas of law enforcement and jail administration. Although

A.R.S. § 201(A)(6) grants the BOS authority to “[d]etermine” the Sheriff’s budget, this po w-

er is limited by A.R.S. § 11-444, which provides: “The sheriff shall be allowed actual and

necessary expenses incurred … in pursuit of criminals, for transacting all civil or criminal



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business and for service of all process and notices[.]” A.R.S. § 11-444(A).3

It is no answer to say that the County “need provide only for ‘actual and necessary

expenses incurred by the sheriff’” and that “[e]xpenses incurred in unlawful activities cannot

be considered ‘necessary.’” Pl’s Resp. 11. Plaintiff never explains how that authority would

allow the County to prevent the unlawful behavior alleged here. For example, Plaintiff al-

leges that MCSO engaged in racial profiling in conducting traffic stops, and failed to ensure

that prisoners are not disadvantaged by their inability to speak English. But how would the

Board identify such conduct, differentiate it from proper traffic stops and jail administration,

and adjust the budget to strain out only improper conduct? Plaintiff cannot say.

Plaintiff ignores the testimony of Supervisor Andrew Kunasek, the only member of

the Board to be examined on these issues, which makes it abundantly clear that, in practice

that authority is quite limited. See SSOF at ¶ 5, Exh. 2. As Supervisor Kunasek testified, the

Board lacks the authority to tell the Sheriff how to enforce the law or administer the jail. See

also SSOF at ¶ 5, Exh. 2 at p. 69, l. 8 – p. 72, l. 21. Nor is it any answer to point to a board

resolution involving fiscal management (reallocating funds earmarked for one purpose for

another). See Pl’s SAF at Exh. 1, Exh. 5 at 2-3.

In sum, much as the federal government may wish it were otherwise, this is how the

county organs of government are structured in Arizona. The motion should be granted.

CONCLUSION

For all these reasons, and those in our Motion, judgment should enter for the County.

3 BOS authority over the Sheriff’s budget is further limited by A.R.S. § 11 -444(B), which

requires it “at the first regular meeting in each month, [to] set apart from the expense fund ofthe county a sum sufficient to pay the estimated traveling and other expenses of the sheriffduring the month, which shall not be less than the amount paid for the expenses of the pre-ceding month.”



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DATED: November 24, 2014

WALKER & PESKIND, PLLC

By:/s/ Richard K. WalkerRichard K. Walker

Charles W. Jirauch16100 N. 71

st Street, Suite 140

Scottsdale, 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

NOTICE OF ELECTRONIC FILING AND CERTIFICATE OF SERVICE

I hereby certify that on November 24, 2014, I electronically filed Defendant Maricopa

County’s Reply in Support of its 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 # 356 | d.ariz._2-12-cv-00981_356

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