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

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Richard K. Walker, SBN 004159


Charles W. Jirauch, SBN 004219
WALKER & PESKIND, PLLC
16100 N. 71st Street, Suite 140
Scottsdale, Arizona 85254-2236
rkw@azlawpartner.com
cwj@azlawpartner.com
Phone: (480) 483-6336
Facsimile: (480) 483-6337
Counsel for Defendant Maricopa County, Arizona

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF ARIZONA

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Attorneys and Counselors
16100 North 71st Street, Suite 140
Scottsdale, AZ 85254
Telephone: (480) 483-6336

WALKER & PESKIND, PLLC

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Manuel de Jesus Ortega Melendres, et al,


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

Plaintiffs,
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And

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United States of America,

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Plaintiff-Intervenor,

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DEFENDANT MARICOPA COUNTY,


ARIZONAS RESPONSE TO
QUESTIONS POSED IN COURTS
ORDER OF NOVEMBER 18, 2015
(DOC. 1566)

vs.

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Joseph M. Arpaio, et al.,

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[Assigned to Judge G. Murray Snow]

Defendants.

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Defendant MARICOPA COUNTY (the County),1 hereby provides its responses


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

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Maricopa County and The County, as used herein, are intended to refer to that
26 body politic and corporate created by Article XII, 1 of the Arizona Constitution and
A.R.S. 11-202 (A), and to that portion of the government of Maricopa County
27 embodied in the Maricopa County Board of Supervisors, the Maricopa County Manager,
28 and those appointed officials and employees of The County who serve under the
supervision and direction of the foregoing. The phrases are not intended, and should not
be construed, to refer to any other Maricopa County officer whose office is filled by the

Attorneys and Counselors


16100 North 71st Street, Suite 140
Scottsdale, AZ 85254
Telephone: (480) 483-6336

WALKER & PESKIND, PLLC

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

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1566). The Countys responses herein are limited because, as the County understands the
Courts questions, all but two of them seek information that is uniquely, or at least
primarily, in the possession, custody, or control of other parties. To the extent the Court
seeks information within the possession, custody or control of Defendant SHERIFF
JOSEPH M. ARPAIO (the Sheriff) and/or any of the alleged unnamed contemnors, any
awareness of such information on the Countys part is derivative and based primarily
upon discovery conducted and/or documents or other evidence adduced by other parties
since the County was involuntarily joined as a party to this case pursuant to the Ninth
Circuits decision in Melendres v. Arpaio, 784 F. 3d 1254 (9th Cir. 2015).
In light of the foregoing limitations, and subject to them, the County confines its
responses herein to Question Nos. 2 and 5 in the November 18 Order. To the extent that
the Court considers a response from the County to other questions set forth in the Order
necessary and required, the County has no reason to believe the responses provided
contemporaneously herewith on behalf of the Sheriff and the alleged unnamed
contemnors are inaccurate, and accordingly adopts them on information and belief, along
with all objections, to the extent applicable to the County, asserted in connection with
such responses.
QUESTION 2:
As the Court already indicated, it feels free to consider the matters
set forth in the docket and the representations made by the parties and their
representatives to the Court during the status conferences and in the papers filed in this
matter. It also feels free to rely on its previous findings of fact and conclusions of law. If

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


any of the officials and other employees of The County who serve under the supervision
and direction of such Constitutional Officers.
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Attorneys and Counselors


16100 North 71st Street, Suite 140
Scottsdale, AZ 85254
Telephone: (480) 483-6336

WALKER & PESKIND, PLLC

Case 2:07-cv-02513-GMS Document 1593 Filed 12/04/15 Page 3 of 7

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any party objects to the Court doing so please state such objections and the basis
therefore.
The County respectfully objects to the Courts reliance, for purposes of any
findings adverse to the County (as distinguished from the Sheriff and the alleged
unnamed contemnors), or for purposes of imposing any injunctive, declaratory, or
compensatory relief prohibiting or requiring any action by the County (again, as
distinguished from the Sheriff and the alleged unnamed contemnors), upon any matters
set forth in the docket, representations made by the parties and their representatives,
papers filed, or findings made in this action at any time when the County was not a party
to the litigation.
A person who was not a party to a suit generally has not had a full
and fair opportunity to litigate the claims and issues settled in that
suit. The application of claim and issue preclusion to nonparties
thus runs up against the deep-rooted historic tradition that everyone
should have his own day in court.
Taylor v. Sturgell, 553 U.S. 880, 892-93 (2008) (quoting Richards v. Jefferson County,
517 U.S. 793, 798 (1996)).
The Court in Sturgell acknowledged that the general rule against nonparty
preclusion is subject to certain exceptions that fall into six categories. Id. at 893-95. The
first exception, applicable when a nonparty agrees to be bound by litigation between
others, clearly has no application here. The fifth and sixth exceptions identified by
Sturgell where a party bound by a judgment seeks to relitigate issues through a proxy,
and where there is a special statutory scheme precluding successive litigation by

Attorneys and Counselors


16100 North 71st Street, Suite 140
Scottsdale, AZ 85254
Telephone: (480) 483-6336

WALKER & PESKIND, PLLC

Case 2:07-cv-02513-GMS Document 1593 Filed 12/04/15 Page 4 of 7

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nonlitigants (e.g., bankruptcy and probate proceedings) also have no bearing on the
circumstances of this case.
The second exception to the general rule against nonparty preclusion comes into
play in a variety of pre-existing substantive legal relationships[s] between the person
to be bound and a party to the judgment. Id. at 894 (citations omitted). As the Sturgell
Court explained, however, this exception originated as much from the needs of property
law as from the values of preclusion by judgment. Id. at 894 (quoting 18A C. WRIGHT,
A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE 4448, p. 329 (2d ed.
2002)). Thus, the exception applies to relationships such as preceding and succeeding
owners of property, bailee and bailor, and assignee and assignor. Id. at 894. Plainly,
there is no such relationship between the County and the Sheriff or the alleged unnamed
contemnors.
Pursuant to the third exception enumerated in Sturgell, in certain limited
circumstances, a nonparty may be bound by a judgment because she was adequately
represented by someone with the same interests who [wa]s a party to the suit. Id. The
Court made it clear, however, that representation of a nonparty by a party to prior
litigation is adequate only if: (1) the interests of the nonparty and her representative
are aligned; and (2) either the party understood herself to be acting in a representative
capacity or the original court took care to protect the interests of the nonparty. Id. at 900
(citation omitted); see also Harris v. Cnty. of Orange, 682 F.3d 1126, 1132-33 (9th Cir.
2012).

Attorneys and Counselors


16100 North 71st Street, Suite 140
Scottsdale, AZ 85254
Telephone: (480) 483-6336

WALKER & PESKIND, PLLC

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In this case, even Plaintiffs have acknowledged that, prior to the Countys
dismissal from the case in 2009, there was adversity between the County and the other
defendants, so their interests cannot be said to have been aligned.

See

Brief for

Plaintiffs-Appellees in Melendres II, C.A. No. 13-16285 and C.A. No. 13-17238, Dkt. #
51-1, at 57-60 (relevant excerpt), copy attached hereto as Exhibit A. In addition, there
is nothing in the record in this case indicating that either the Sheriff or MCSO understood
themselves to be acting as representatives for the County in the wake of the Countys
dismissal, nor is there anything to suggest that this Court took special care to protect the
Countys interests during the lengthy period when it was absent from the litigation.
Finally, the fourth of the exceptions to the rule against nonparty preclusion applies
if the nonparty assumed control over the litigation producing the judgment by which the
nonparty is subsequently sought to be bound. Sturgell, 553 U.S. at 895. Here, there is no
evidence that the County exerted any control over the litigation once the claims against it
were dismissed, which would have been highly unlikely in any event in light of the
acknowledged adversity between the County and the other Defendants.
Because none of the Sturgell exceptions apply, the County cannot, consistent with
its right to the due process of law, be bound or precluded as a result of any actions by the
remaining parties, or by the district courts rulings, from litigating any issues pertaining
to any claims asserted against the County by the Plaintiffs that were raised and/or
adjudicated while the County was not a party to the litigation.

Attorneys and Counselors


16100 North 71st Street, Suite 140
Scottsdale, AZ 85254
Telephone: (480) 483-6336

WALKER & PESKIND, PLLC

Case 2:07-cv-02513-GMS Document 1593 Filed 12/04/15 Page 6 of 7

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In addition, the County objects to the Courts consideration of, or reliance on, for
evidentiary purposes any statements made by counsel for any of the parties. Any such
statements should be considered advocacy entitled to no evidentiary weight.
QUESTION 5:
There has been testimony that during the time that the preliminary
injunction was in effect, HSU roadside interdiction patrols detained and turned over to
ICE 171 persons for whom it had no state charges but whom it suspected of being in the
country with authorization. Although the Court recalls testimony that a similar tally
either existed or could be prepared for HSUs work place employment raids and/or other
activities, it cannot recall that such a tally was ever subsequently admitted into evidence.
The Court also remembers Lieutenant Sousas testimony pertaining to overhearing radio
calls from MCSO operations that were not part of HSU, principally District II, pertaining
to the transfer of non-chargeable unauthorized persons to ICE custody.
a. Please highlight for the Court any other testimony or exhibits that demonstrate
the number of persons that may have been impacted by the MCSOs violation
of this Courts preliminary injunction and the different ways in which they may
have been impacted.
b. To the extent that the identity of such victims, or the extent of the harm done to
them, may or may not be ascertainable please indicate why.

To the extent that this question suggests the Court intends to consider and rely on
evidence pertaining to HSUs work place employment raids and/or other activities,
whether for purposes of determining whether any Order of the Court has been violated, or
for purposes of identifying individuals who may have a claim for relief based on any
violations of the Courts Orders, the County objects. All the named Plaintiffs in this
action claim to have suffered injury only as a result of conduct alleged to have occurred
in the context of immigration-related traffic stops. None of the named Plaintiffs has
alleged, and no proof has been adduced in this action, that they suffered any injury
arising out of any other context. Without a named Plaintiff asserting such a claim, there
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Attorneys and Counselors


16100 North 71st Street, Suite 140
Scottsdale, AZ 85254
Telephone: (480) 483-6336

WALKER & PESKIND, PLLC

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

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is no case or controversy before the Court regarding such claims, and the Court would
exceed its powers under Article III to the U.S. Constitution if it were to consider and rely
on evidence of such matters for purposes of finding violations of its Orders, or for
fashioning relief based on any violations of such Orders determined to have occurred.

DATED this 4th day of December, 2015.


WALKER & PESKIND, PLLC

By: /s/ Richard K. Walker


Richard K. Walker, Esquire
Charles W. Jirauch,
Esquire
16100 N. 71st Street, Suite 140
Scottsdale, Arizona 85254-2236
Attorneys for Defendant Maricopa County,
Arizona

NOTICE OF ELECTRONIC FILING AND CERTIFICATE OF SERVICE


I hereby certify that on December 4, 2015, I electronically filed Defendant
Maricopa County, Arizonas Response to Questions Posed in Courts Order of November
18, 2015 (Doc. 1566), 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

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