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No. 15-15996
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MANUEL DE JESUS ORTEGA MELENDRES; et al.,


Plaintiffs/Appellees,
v.
MARICOPA COUNTY,
Defendants/Appellants,
and
JOSEPH M. ARPAIO,
Defendant.

On Appeal from The United States District Court


For the District of Arizona
G. Murray Snow, District Judge, Presiding
U.S. Arizona District Court
No.: 2:07-CV-02513-GMS
___________________________________________
DEFENDANTS/APPELLANTS RESPONSE TO
PLAINTIFFS/APPELLEES MOTION TO DISMISS APPEAL
___________________________________________
Richard K. Walker, SBN 004159
WALKER & PESKIND, PLLC
16100 N. 71st Street, Suite 140
Scottsdale, Arizona 85254-2236
rkw@azlawpartner.com
Phone: (480) 483-6336
Facsimile: (480) 483-6337
Counsel for Defendant/Appellant Maricopa County, Arizona
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TABLE OF CONTENTS
INTRODUCTION.1
STATEMENT OF PERTINENT FACTUAL AND PROCEDURAL
BACKGROUND...1
ARGUMENT4
A. The County was not a Party to Proceedings in This Case After Claims
Against it Were Dismissed in October 2009 Until the Melendres II
Decision Issued More Than Five Years Later, and Had No Right To
Appeal the District Courts Judgment or Other Rulings at the Time They
Were
Entered...4
B. Under Arizona Law, the Sheriff and the County are Distinct Legal
Entities with Divergent Interests7
C. Plaintiffs Assertion That The County Seeks to Appeal Again Issues
Addressed in Previous Decisions Of This Court is Grounded in Pure
Speculation and Is, In Any Event, Premature..12
CONCLUSION...13
CERTIFICATE OF COMPLIANCE...14
CERTIFICATE OF SERVICE AND NOTICE OF ELECTRONIC FILING15

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TABLE OF AUTHORITIES
CASES
Associated Dairy Products Co. v. Page, 68 Ariz. 393 (1949)...9
Campbell v. State of Iowa, 702 F.3d 1140 (8th Cir. 2013).6
Ctr. For Bio-Ethical Reform, Inc. v. L.A. Cnty. Sheriff Dept, 533 F.3d 780 (9th
Cir. 2008)...4
Hounshell v. White, 220 Ariz. 1 (App. 2008)10, 11
Kentucky v. Graham, 473 U.S. 159 (1985).4, 12
Marino v. Ortiz, 484 U.S. 301 (1988)...5
Melendres v. Arpaio, 695 F. 3d 990 (9th Cir. 2012)..2
Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015).....3
Mohave v. Mohave-Kingman Estates, Inc., 120 Ariz. 417...9
U.S. v. Siegel, 168 F.2d 143 (D.C. Cir. 1948)...5
CONSTITUTION
Arizona Constitution, Art. 12, 3......8
STATUTES
A.R.S. 11-201....9
A.R.S. 11-201(A)(6)..9
A.R.S. 11-251.....9
A.R.S. 11-441.....9
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A.R.S. 11-444(A)...7, 9
A.R.S. 11-4599
A.R.S. 38-341...11
A.R.S. 38-342...11
A.R.S. 38-343...11
Fed.R.App.P. 43(a)..6
Fed.R.App.P. 43(b)...6
Fed.R.Civ.P. 21.....4
Fed.R.Civ.P. 24(a).....6
Fed.R.Civ.P. 24(b).....6
TREATISES
JOHN S. GOFF, THE RECORDS

OF THE

ARIZONA CONSTITUTIONAL CONVENTION

OF

1910 at 504-505.....8
JOHN D. LESHY, THE ARIZONA STATE CONSTITUTION 327-28 (2013)...8

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INTRODUCTION
Defendant/Appellant Maricopa County, Arizona (the County)1 hereby submits
its Response in Opposition to Plaintiffs/Appellees (Plaintiffs) Motion to Dismiss the
Countys appeal herein. Plaintiffs Motion should be denied in its entirety.
I.

STATEMENT OF PERTINENT FACTUAL AND PROCEDURAL


BACKGROUND

The County was named as a Defendant by Plaintiffs, along with Sheriff Joseph M.
Arpaio (the Sheriff), in the original Complaint by which Plaintiffs commenced this
litigation below in December of 2007, seeking an award of damages and declaratory and
injunctive relief. Dkt. 1.2 The County was also named as a Defendant in Plaintiffs First
Amended Complaint filed September 5, 2008, in which they added the Maricopa County
Sheriffs Office (MCSO) as a named party and dropped their claim for damages,
making this an action seeking solely declaratory and injunctive relief. Dkt. 26.
Just slightly over a year after amending their Complaint, Plaintiffs joined the
County in filing Joint Motion and Stipulation to Dismiss the County without prejudice.

Maricopa County and the County, as used herein, are intended to refer to that
portion of the government of Maricopa County embodied in the Maricopa County Board
of Supervisors, the Maricopa County Manager, and those appointed officials and
employees of the County who serve under the supervision and direction of the foregoing.
The phrase is not intended, and should not be construed, to refer to any other Maricopa
County officer whose office is filled by the electoral process as provided in the Arizona
Constitution (Constitutional Officers), or to any of the officials and other employees of
the County who serve under the supervision and direction of such Constitutional Officers.
2
Unless otherwise indicated, docket citations in this Response are to D.C. No. 2:07-cv02513-GMS.
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Dkt. 178. In this Joint Motion, Plaintiffs stated explicitly that the County is not a
necessary party at this juncture for obtaining the complete relief sought . . . . Id. at 3.
The Joint Motion was unopposed by any other party, and it was granted by the district
court on October 13, 2009, dismissing all claims against the County without prejudice.
Dkt. 193.
A little over two years later, on December 23, 2011, the district court granted
Plaintiffs motion for partial summary judgment, granting certain preliminary injunctive
relief. Dkt. 494. The preliminary injunction, unsurprisingly in light of the fact that it had
been two years since the County had participated in the case as a party, was directed only
at the Sheriff and MCSO, and it did not purport to impose any prohibitions or mandates
on the County. See Dkt. 494. The Sheriff and MCSO appealed from the district courts
issuance of the preliminary injunction, and that appeal was denied. Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012) (Melendres I). The County was not a party to, and did not
participate in, that appeal.
The district court conducted a bench trial in this matter in July and August of
2012, almost three years after the claims against the County had been dismissed. See
Dkt. 529. Again, the County did not participate as a party. Accordingly, district courts
Findings of Fact and Conclusions of Law, issued in May of 2014, contained no findings
adverse to the County, as distinguished from Sheriff Arpaio and MCSO whose policies
and practices were found to have violated in some respects the Fourth and Fourteenth
Amendments to the U.S. Constitution. Dkt. 579.
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On October 2, 2013, the district court issued a Supplemental Permanent


Injunction/Judgment Order, appointing a monitor and providing for certain other
remedies. Dkt. 606. The County did not participate as a party during the remedial phase
of the proceedings below. Consequently, as had been the case with the district courts
preliminary injunction, no relief was ordered against the County (again, as distinguished
from the Sheriff and MCSO) in the district courts permanent injunction.
The Sheriff and MCSO timely appealed the district courts Findings of Fact and
Conclusions of Law and its Supplemental Permanent Injunction to this Court on October
32, 2013. Dkt. 616. One of the issues appealed to the Ninth Circuit by the Sheriff and
MCSO was the question of whether MCSO was a non-jural entity and, as such, not a
proper party to this action. The issues of whether, in the event of a dismissal of MCSO, it
would be necessary for another party to be joined and, if so, who that party might be,
were neither briefed nor argued by any party to the appeal. See excerpts from Melendres
II Defendants/Appellants Opening Brief, pp. 2, 13, 16-17; Melendres II Brief for
Plaintiffs-Appellees, pp. 2, 14, 57-59; Melendres II Defendants/Appellants Reply Brief,
pp. 2-5, copies of which are attached hereto as Exhibits 1, 2, and 3, respectively. After
finding that MCSO is a non-jural entity and, therefore, had improperly been named as a
party in this action, a panel of this Court, acting sua sponte and without explaining its
reasoning for doing so, ordered the substitution of the County for MCSO. Melendres v.
Arpaio, 784 F.3d 1254, 1260 (9th Cir. 2015) (Melendres II). The entirety of the portion
of the panels discussion of this point is as follows:
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We therefore order that Maricopa County be substituted as a party in


lieu of MCSO. See Fed.R.Civ.P. 21 (Misjoinder of parties is not a ground
for dismissing an action. On . . . its own, the court may at any time, on just
terms, add or drop a party). On remand, the district court may consider
dismissal of Sheriff Arpaio in his official capacity because an officialcapacity suit is, in all respects other than name, to be treated as a suit
against the entity. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct.
3099, 87 L.Ed. 2d 114 (1985); see also Ctr. For Bio-Ethical Reform, Inc. v.
L.A. Cnty. Sheriff Dept, 533 F.3d 780, 799 (9th Cir. 2008) (dismissing a
duplicative official-capacity defendant).
Id.
The County, having theretofore not participated as a party to the appeal from the
district courts rulings, timely filed a Petition for Panel Rehearing and Petition for En
Banc Consideration solely addressed to the question of whether the panels late joinder of
the County had been proper. Dkt. 1116. On June 26, 2015, the Court of Appeals
summarily denied the Countys Petitions, offering no substantive explanation for the
basis of its ruling. Dkt. 1163.
The County filed its Notice of Appeal to commence this appellate proceeding on
May 15, 2015, 2015.

Dkt. 1104.

In addition to the fact that the County did not

participate as a party in the proceedings below, or in the appellate proceedings that


emanated therefrom, from its dismissal on October 13, 2009 to the issuance of the panels
April 15, 2015 decision in Melendres II, there is no evidence, and Plaintiffs do not
contend, that the County controlled the proceedings after having been dismissed from the
case.
II.
A.

ARGUMENT

The County Was Not A Party To Proceedings In This Case After


Claims Against It Were Dismissed In October 2009 To The Melendres
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II Decision Issued More Than Five Years Later, And Had No Right To
Appeal The District Courts Judgment Or Other Rulings At The Time
They Were Entered.
The rule that only parties to a lawsuit, or those that properly become parties may
appeal an adverse judgment, is well settled. Marino v. Ortiz, 484 U.S. 301, 304 (1988)
(per curiam) (citations omitted); U.S. v. Siegel, 168 F.2d 143, 146 (D.C. Cir. 1948)
(rejecting notion that a non-party, even if the real party in interest, could bring a case to
the U.S. Court of Appeals simply by noting an appeal because [w]e can see nothing
but chaos resulting . . . .). The Countys right to appeal the judgment and other rulings
below simply did not accrue until it was involuntarily joined by the decision in Melendres
II.
Plaintiffs seek to circumvent this formidable hurdle by asserting that the County
might have gained the right to appeal by intervening, and suggesting that it was somehow
obligated to do so. There is no authority, however, and Plaintiffs have cited to none,
supporting the notion that a non-party, any non-party, who may have a right to seek
intervention is required to do so.
It should also be remembered that the Countys early dismissal from the action in
the district court was, as Plaintiffs point out, without prejudice to later re-joining if
necessary. Motion at 2.

Yet neither Plaintiffs nor any other party suggested, prior to

the decision in Melendres II, that rejoinder of the County was necessary, sought, or even

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desired.3 Clearly, Plaintiffs themselves saw no need for the County to be dragged back
into the litigation. Nevertheless, they now claim that the County should have recognized
that need and jumped back into the fray of its own accord and, having failed to do so, it
should now be penalized by having its appellate rights extinguished.
Moreover, in this case, none of the district courts decisions reflect any findings
adverse to the County, as distinguished from the Sheriff and MCSO. None of those
decisions purports to bind the County by their terms, and none of them grants Plaintiffs
any relief against the County. Given this, one must wonder what Plaintiffs think would
have moved the County to spend the money to take an appeal from decisions in a case
from which it had long before been excused as a party with the consent of all other
parties and the district court, that imposed no requirements on the County as such, and in
which its ability to obtain post-judgment intervention (and therefore be in a position to
assert any appellate rights) was anything but assured. See, e.g., Fed. R. Civ. P. 24(a) and
(b) (motions for both intervention as of right and permissive intervention must be timely
filed).
To be sure, the County is required by Arizona law to provide funding for the
actual and necessary expenses incurred by the sheriff in pursuit of criminals, for

Nor did any party move, pursuant to Fed.R.App.P. 43(a) and (b) for substitution of the
County for MCSO. This makes the panels involuntary joinder of the County sua sponte
highly questionable. See Campbell v. State of Iowa, 702 F.3D 1140, 1142 (8th Cir. 2013)
(in absence of motion to substitute under FRAP 43, court of appeals has no authority to
substitute a proper party).
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transacting all civil and criminal business and for service all process and notices . . . .
A.R.S. 11-444(A). Thus, most or all of the expenses incurred by the Sheriff in the
effort to comply with the district courts mandates have been, and will continue to be,
paid out of the Countys funds. But this indirect effect on matters over which the County
has authority and responsibility hardly presents a compelling reason for the County to
take on the uncertain prospects of a late intervention and an appeal in which it might try
to modify the results of proceedings in which it had not participated for several years.
In any event, the fact that the County was not a party to this action for a
considerable period of time before the district courts judgment and other rulings at issue
means it had no right to appeal at the time that judgment and those rulings were entered.
The fact that there is no evidence that the County controlled the litigation after the
dismissal of the claims against it, and the further fact that there is no authority for the
notion that non-parties who may have the possibility of intervening are compelled to seek
it, lead inexorably to the conclusion that any right the County may have to appeal from
the decisions below matured only upon the issuance of the decision in Melendres II, at
the earliest.
B.

Under Arizona Law, the Sheriff and the County Are Distinct Legal
Entities With Divergent Interests.

Plaintiffs also urge that the County is necessarily bound by, and precluded from
relitigating issues determined in the prior trial court and appellate litigation in this case,
even though it was not a party and did not participate in that litigation for the most part,
because there is substantial identity between parties [the County, on the one hand, and
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the Sheriff and MCSO, on the other], i.e., a sufficient commonality of interest. Motion
at 10 (citation omitted). This contention overlooks, however, peculiar aspects of the
structure of government at the county level in Arizona, and the divergent interests among
governmental institutions to which it gives rise.
The structure of governmental institutions at the county level in Arizona is
unusual.

Rather than the more common hierarchical, vertically integrated, unitary

structures one finds among municipal and many county governments, authority and
responsibility at the county level is dispersed among various officers who operate with
considerable independence within their respective spheres.4 Arizonas founders created
in its Constitution co-equal Constitutional Officers, all of whom are elected to office
directly by the electorate,5 and among whom are county sheriffs and members of county
boards of supervisors. See Arizona Constitution, Art. 12, 3. The Arizona Constitution
further provides that the duties, powers, and qualifications of such officers shall be as
prescribed by law. Id., 4.

The voters of Maricopa County rejected in 1996 a proposal to convert the County to a
charter government form, which would have changed its governmental structure more
closely resembling the hierarchical structure commonly encountered elsewhere. See
JOHN D. LESHY, THE ARIZONA STATE CONSTITUTION 327-28 (2013).
5
There is clear evidence to be found in the records of the debates that took place during
Arizonas Constitutional Convention that the provision for direct election of
Constitutional Officers was intended by the founders to ensure that such officers would
not be subject to control by the boards of supervisors. See JOHN S. GOFF, THE RECORDS
OF THE ARIZONA CONSTITUTIONAL CONVENTION OF 1910 at 504-505 (discussion of why
Assessor should be elected to avoid his being controlled by Board of Supervisors).
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Consequently, the dispersion and allocation of authority and responsibility among


the various county Constitutional Officers is effected by statutes enacted by the Arizona
Legislature. Thus, the county sheriffs are assigned responsibility for, inter alia, law
enforcement and running the county jails, and they are granted the power necessary to
carry out those functions.

See A.R.S. 11-441 and 11-459.

Arizona boards of

supervisors, on the other hand, are assigned no responsibility or authority over the
enforcement of general law, or over administration of the jails. See A.R.S. 11-201 and
11-251. Arizona boards of supervisors are empowered to determine the budgets of
both elected and appointed county officers. A.R.S. 11-201(A)(6). Where the budgets
of Arizona sheriffs are concerned, however, this power is significantly circumscribed by
a statutory obligation requiring the boards of supervisors to provide actual and necessary
expenses incurred by the sheriff in pursuit of criminals, for transacting all civil and
criminal business and for service of all process and notices . . . . A.R.S. 11-444(A).
It is firmly established in Arizona jurisprudence that county boards of supervisors
have only the powers assigned to them by the Legislature:
The boards of supervisors of the various counties of the state have
only such powers as have been expressly or by necessary implication,
delegated to them by the state legislature. Implied powers do not exist
independently of the grant of express powers and the only function of an
implied power is the aid in carrying into effect a power expressly granted.
Associated Dairy Products Co. v. Page, 68 Ariz. 393, 395, 206 P.2d 1041, 1043 (1949);
see also Mohave County v. Mohave-Kingman Estates, Inc., 120 Ariz. 417, 420, 586 P.2d
978, 981 (citation and internal quotation marks omitted) (Actions of the Board [of
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Supervisors] accomplished by a method unrecognized by statute have been described as


without jurisdiction and wholly void.).
This principle was applied in a context that demonstrates how the interests of
Arizona sheriffs, along with those who work under their supervision, can diverge from
those of their corresponding boards of supervisors in ways highly pertinent to the issues
in this case in Hounshell v. White, 220 Ariz. 1, 202 P. 3d 466 (App. 2008). In that case,
the Apache County Board of Supervisors imposed disciplinary action against an
employee of the Apache County Sheriffs Office (ACSO). The Sheriff filed suit,
asserting that only he, not the Board of Supervisors or the County Manager, had authority
to mete out discipline to classified employees in the ACSO.
This position was sustained by the Arizona Court of Appeals, holding that,
inasmuch as the Sheriff was the appointing authority with respect to his own deputies and
employees, only he had the power to discipline them for misconduct. 220 Ariz. at 4, 202
P.3d at 469. In response to a Board of Supervisors argument that this conclusion could
result in the failure of a Constitutional Officer to exert appropriate control over a rogue
employee because of favoritism or collusion, the Hounshell court held:
Moreover, while a county officer may not be accountable to the Board
itself, he or she is accountable to the voting public. Thus, a county officer
choosing to overlook egregious employee misconduct may not be reelected,
may be subject to a recall election, or may be impeached to the extent the
officers inaction amounts to willful or corrupt misconduct in office.

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220 Ariz. at 6, 202 P.3d at 471 (citations and internal quotation marks omitted).6
Clearly, a board of supervisors that lacks the authority to discipline the employees
of a sheriff who engage in egregious employee misconduct, also is powerless to
prevent such misconduct or effectively to require the sheriff to comply with corrective
measures calculated to remedy it. More to the present point, however, is the fact that
Hounshell demonstrates quite dramatically the fact that Arizona sheriffs and boards of
supervisors are separate and independent entities fully capable of having diverging
interests with respect to matters of the sort that have been the subjects of this litigation.
Plaintiffs contention that there is substantial identity between parties and a sufficient
commonality of interest between or among the Defendants in this case ignores the
realities of county-level governmental structure under the Arizona Constitution and
statutes, and the differing interests that structure nurtures.
There is a further, more fundamental reason why the Countys rights cannot be
circumscribed by MCSOs involvement in the litigation up to this point. Melendres II
held that MCSO was not, and could not be, a proper party. Accordingly, it cannot be
bound by any district court or Court of Appeals rulings issued prior to the panels
decision in Melendres II. If MCSO was not a proper party and, therefore, not subject to
the jurisdiction of the federal courts, any rulings purporting to bind it are necessarily

The impeachment of county officers entails an accusation of willful or corrupt


misconduct presented by a grand jury, and the accusation is then served on the accused
and adjudicated in the Superior Court. A.R.S. 38-341, 38-342, and 38-343.
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void. That being the case, those rulings cannot be made, by some sort of derivative ipse
dixit, into something binding on a non-party that played no substantial role in forming the
record in this case.
C.

Plaintiffs Assertion That The County Seeks To Appeal Again Issues


Addressed In Previous Decisions Of This Court Is Grounded In Pure
Speculation And Is, In Any Event, Premature.

Plaintiffs argue that the County must be barred from appealing these matters
again. Motion at 10. This presumes that the issues the County intends to raise in its
appeal will be the same as those raised in the earlier appeals prosecuted by the Sheriff
and MCSO. What issues are to be raised in this appeal, however, remains to be seen, and
Plaintiffs presumption is nothing more than sheer speculation. For reasons discussed
above, the fact that issues have been litigated and adjudicated in the Countys absence
certainly raised serious questions as to whether prior rulings can legitimately be found to
be binding on the County. But there is also at least one issue not previously raised by any
party and not previously considered by either the district court or this Court that is likely
to be among the questions the County will seek to have reviewed in this appeal. That
question is whether, in an action seeking only declaratory and injunctive relief against
allegedly unconstitutional policing practices, a governmental body that has no authority
over those practices and no effective way to regulate them can properly be found to be
liable for them. See Kentucky v. Graham, 473 U.S. 159 (1985) (in official-capacity
action, governmental entity can be found liable on it if is the moving force behind a
violation of 42 U.S.C. 1983).
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III.

CONCLUSION

For all the foregoing reasons, Plaintiffs motion to dismiss the Countys appeal in
this matter should be denied.

RESPECTFULLY SUBMITTED this 3rd day of September, 2015.

WALKER & PESKIND, PLLC


By: /s/ Richard K. Walker, #004159
Richard K. Walker,
Esquire
16100 N. 71st Street, Suite 140
Scottsdale, AZ 85254
Counsel for Defendant/Appellant

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CERTIFICATE OF COMPLIANCE
I certify that pursuant to Fed.R.App. P. 27-1, the attached response brief is in
compliance with Fed.R.App.P. 27(d) and does not exceed 20 pages.
Dated this 3rd day of September, 2015.
/s/ Richard K. Walker
Richard K. Walker
Attorney for Defendant-Appellant

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CERTIFICATE OF SERVICE AND NOTICE OF ELECTRONIC FILING


I hereby certify that on September 3, 2015, I electronically filed
Defendants/Appellants Maricopa Countys Response to Plaintiffs/Appellees
Motion to Dismiss Appeal, with the Clerk of the Court for the United States Court
of Appeals for the Ninth Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that services will be accomplished by the appellate CM/ECF system.

/s/ Michelle Giordano

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