Upload
jack-ryan
View
215
Download
0
Embed Size (px)
Citation preview
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
1/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
0
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
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]
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
2/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 2 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
3/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
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
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 3 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
4/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
… 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-
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 4 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
5/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
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.
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 5 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
6/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
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.”)
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 6 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
7/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
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).
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 7 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
8/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
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-
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 8 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
9/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
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-
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 9 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
10/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
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
4
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.
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 10 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
11/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
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
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 11 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
12/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
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
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 12 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
13/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
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-
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 13 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
14/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
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
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 14 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
15/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13
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
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 15 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
16/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14
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.”).
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 16 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
17/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
* * *
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
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 17 of 18
8/21/2019 DOJ v Arpaio # 351 | D.Ariz._2-12-cv-00981_351
18/18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
16
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
Case 2:12-cv-00981-ROS Document 351 Filed 11/14/14 Page 18 of 18