We Are America/Somos America Coalition of Arizona et al v.Maricopa County Board of Supervisors, et al.

Filing 137

ORDER: Defendants' Motion for Summary Judgment 119 is DENIED; Plaintiffs' Motion for Summary Judgment 121 is GRANTED as to their first claim ("Federal Preemption"); Plaintiffs' second claim for relief ("Unlawful Search and Seizure; violation of 42 U.S.C. § 1983"), third claim for relief (Denial of Due Process; violation of 42 U.S.C. § 1983"); and fourth claim for relief ("Pendent State Claim: Violation of Ariz. Rev. Stat. §§ ; 13-2319 and 13-1003") are DISMISSED WITH PREJUDICE pursuant to Fed.R.Civ.P. 41(a)(2); Plaintiffs' Motion for Class Certification pursuant to Fed.R.Civ. 23(b)(2) 122 is GRANTED in part and DENIED in part. The court certifies a class def ined as: "All individuals who pay taxes to Maricopa County and object to the use of county tax revenues to stop, detain, arrest, incarcerate, prosecute, or penalize individuals for conspiring to transport themselves, and themselves only, in viol ation of Ariz. Rev. Stat. § 13-2319." FURTHER ORDERED that Carlos Holguin and Peter A. Schey of the Center for Human Rights and Constitutional Law are appointed as lead class counsel. Plaintiffs are entitled to a declaration that federa l law preempts and renders invalid the Maricopa County Migrant Policy. Defendants Maricopa County Sheriff Joseph M. Arpaio and Maricopa County Attorney William G. Montgomery, and their agents, employees, successors in office, and all other persons who are in active concert or participation with the Maricopa County Sheriff's Office and the Maricopa County Attorney's Office, are permanently enjoined from further implementing the Maricopa Migrant Conspiracy Policy including detaining, arresting, and prosecuting persons for conspiring to transport themselves, and no one else, in violation of Ariz. Rev. Stat. § 13-2319. See Order for further details. Signed by Senior Judge Robert C Broomfield on 9/27/13.(SJF)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 We Are America, et al., Plaintiffs, 10 11 12 vs. Maricopa County Board of Supervisors, et al. 13 Defendants. 14 No. CIV 06-2816-PHX-RCB O R D E R Introduction 15 16 ) ) ) ) ) ) ) ) ) ) ) In 2005, the Arizona State Legislature criminalized human (“A.R.S.”) § 13-2319. smuggling. 18 Thereafter, the Maricopa County Attorney’s Office (“MCAO”) 19 interpreted that human smuggling statute, in combination with 20 Arizona’s conspiracy statutes, as giving it the prosecutorial 21 discretion to charge and prosecute non-smuggling migrants for 22 conspiring to transport themselves within Maricopa County. 23 Accordingly, the Maricopa County Sheriff’s Office (“MCSO”) began 24 arresting and detaining migrants for that crime. 25 is a direct challenge to the foregoing, which the parties refer 26 to, as will the court, as the Maricopa Migrant Conspiracy Policy 27 (the “Policy”). 28 See Ariz.Rev.Stat. 17 This lawsuit Currently pending before the court are defendants’ (Doc. 1 119) and plaintiffs’ (Doc. 121) competing motions for summary 2 judgment pursuant to Fed.R.Civ.P. 56. 3 these summary judgment motions raise is whether federal law 4 preempts and renders invalid the Policy.1 5 second motion for class certification pursuant to Fed.R.Civ.P. 6 23 (Doc. 122)2 is also currently pending before the court. The primary issue which The plaintiffs’ Background 7 8 An examination of the parties’ statements of facts and 9 controverting statements of facts, reveals that there is little 10 complete 11 objections are not well-taken though; and they obfuscate rather 12 than sharpen the factual record. 13 agreement between them. Most of the parties’ A court “may only consider admissible evidence in ruling on Ballen v. City of Redmond, 466 14 a motion for summary judgment.” 15 F.3d 736, 745 (9th Cir. 2006) (citation omitted). 16 “‘objections to evidence . . . [as] irrelevant, speculative, 17 and/or argumentative, or that it constitutes an improper legal 18 conclusion are all duplicative of the summary judgment standard 19 itself.’” Harris Technical Sales, Inc. v. Eagle Test Sys., Inc., 20 2008 WL 343260, at *3 (D.Ariz. Feb. 5, 2008) (quoting Burch v. 21 Regents of the Univ. of Cal., 433 F.Supp.2d 1110, 1120 (E.D.Cal. However, 22 1 23 24 25 Given the court’s intimate familiarity with this action and because the issues have been fully briefed, in its discretion the court denies the parties’ request for oral argument as it would not aid the decisional process. See Fed.R.Civ.P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 26 2 27 28 This court previously denied plaintiffs’ first motion for class certification without prejudice to renew. We Are America/Somos America Coalition of Arizona v. Maricopa Co. Bd. of Supervisors, 2007 WL 2775134, at * 8 (D.Ariz. Sept. 21, 2007) (“WAA/SACA I”). -2- 1 2006)). Many of the parties’ objections are to relevancy. 2 objections are “‘redundant’” though because a court “‘cannot 3 rely on irrelevant facts[]’” in awarding summary judgment. 4 Huynh v. J.P. Morgan Chase & Co., 2008 WL 2789532, at *4 5 (D.Ariz. July 17, 2008) (quoting Burch, 433 F.Supp.2d at 1119). 6 “‘A court can award summary judgment only when there is no 7 genuine dispute of material fact.’” Id. (quoting Burch, 433 8 F.Supp.2d at 1119) (emphasis in original)). Other 9 objections are that the proffered Such evidence is 10 argumentative or constitutes an improper legal conclusion. 11 These types of objections are “superfluous” in this context, 12 however, because such statements “‘are not facts and likewise 13 will not be considered on a motion for summary judgment.’” Id. 14 (quoting Burch, 433 F.Supp.2d at 1119 (citation omitted)). 15 Thus, insofar as the parties’ objections are duplicative of the 16 summary judgment standard, the court sees no need to expressly 17 rule on each. There 18 are two objections which merit specific 19 consideration, however. 20 plaintiffs’ second statement of fact which, in turn, is based 21 upon 22 Smuggling Enforcement] Opinion No. 2005-002[,]” dated September 23 29, 2005. 24 document purports to be a letter from former Maricopa County 25 Attorney Andrew P. Thomas to defendant Sheriff Joseph M. Arpaio. a document The defendants are objecting to the entitled “[Criminal Justice-Sheriff-Human Pls.’ Exh. 5 (Doc. 121-2) at 213-219.3 This unsigned 26 27 28 3 For uniformity and ease of reference, all citations to page numbers of docketed items are to the page assigned by the court’s case management and electronic case filing (CM/ECF) system. -3- 1 See id. Based upon this letter, the plaintiffs offer the 2 following statement of “fact[:]” “On September 29, 2005, [the 3 then] defendant County Attorney announced that his office would 4 prosecute 5 migrants — ‘people who are trying to enter into this country’ 6 and whom, in the legislature’s view, actual smugglers ‘exploit’ 7 – who agree to pay for their own transport on the theory that 8 such migrants have conspired to violate § 13-2319.” Plaintiffs’ 9 Statement of Facts in Support of Motion for Summary Judgment not only actual coyotes, but also non-smuggler 10 (“Pls.’ SOF”) (Doc. 121-1) at 3:16-21 (citations omitted). The 11 plaintiffs also rely upon the September 29, 2005, document as 12 the source of the Policy. 13 letter] initiated the . . . MMCP at issue[.]”) See id. at 3:24-25 (“This [opinion 14 Objecting to this statement of fact, and the predicate 15 document, the defendants assert that the latter lacks foundation 16 because it is unsigned. The defendants further assert that that 17 unsigned document cannot “serve as an admission by a party 18 opponent[]” in the absence of any testimony by either its 19 supposed author, non-party Thomas, or its alleged recipient, 20 defendant Arpaio. Defendants’ Response to Plaintiffs’ Statement 21 of Facts in Support of Plaintiffs’ Motion for Summary Judgment 22 and Controverting Statement of Facts (“Defs.’ Resp. SOF”) (Doc. 23 129) at 3:13-14, ¶ 2. 24 Documentary evidence submitted on a summary judgment 25 motion “must be authenticated and attached to a declaration 26 wherein the declarant is the person through whom the exhibits 27 could be admitted into evidence.” 28 1212, 1224 (9th Cir. 2007) (citation omitted); see also Orr v. -4- Bias v. Moynihan, 508 F.3d 1 Bank of America, 285 F.3d 764, 773 (9th Cir. 2002) (citations 2 and footnote omitted) (“Authentication is a condition precedent 3 to admissibility” and “unauthenticated documents cannot be 4 considered in a motion for summary judgment.”) 5 Circuit has “repeatedly held that unauthenticated documents 6 cannot be considered in a motion for summary judgment.” 7 285 F.3d at 773. 8 by evidence sufficient to support a finding that the matter in 9 question is what its proponent claims[,]” Fed.R.Evid. 901(a), if the The Ninth Orr, This authentication requirement is “satisfied 10 or document is self-authenticating pursuant to 11 Fed.R.Evid. 902. The plaintiffs have shown neither. Therefore, 12 the court will not consider the unsigned September 29, 2005, 13 letter due to a lack of foundation. 14 For substantially similar reasons, the court also will not 15 consider what purports to be “Minutes of the Committee on 16 Judiciary re: H.B. 2539, Arizona House of Representatives, 47th 17 Legislature, First Regular Session (February 10, 2005).” 18 SOF (Doc. 121-1) at 3:14-17. 19 intent, the plaintiffs recite from these Minutes several times. 20 The Minutes themselves are not part of the record, however; nor 21 have they been authenticated in any way. Pls.’ Attempting to show legislative 22 Notwithstanding the parties’ objections, at bottom, the 23 undisputed facts pertaining to the pending summary judgment 24 motions 25 criminalized human smuggling, making it a class 4 felony for a 26 “person to intentionally engage in the smuggling of human beings 27 for profit or commercial purpose.” are straightforward and 28 -5- few. In 2005, Arizona A.R.S. § 13-2319(A)-(C)(1)- 1 (2) (Supp. 2010)4. 2 human beings” is “transportation, procurement of transportation 3 or use of property or real property by a person or an entity 4 that knows or has reason to know that the person or persons 5 transported or to be transported are not United States citizens, 6 permanent resident aliens or persons otherwise lawfully in this 7 state or have attempted to enter, entered or remained in the 8 United States in violation of law.” A.R.S. § 13–2319(F)(3). 9 The statutory definition of “[s]muggling of Significantly, the defendants do not dispute either the 10 existence of the Policy or its implementation. Indeed, they 11 expressly acknowledge that “[s]ince March of 2006, the [MCAO] 12 has reserved the prosecutorial discretion under Arizona law to 13 charge and prosecute persons for the state crime of conspiracy 14 under A.R.S. § 13-1003 to violate Arizona’s human smuggling 15 statute, A.R.S. § 13-2319.” 16 Judgment (“Defs.’ SJM”) (Doc. 119) at 1:27-2:2. 17 same lines, the defendants further acknowledge that the MCSO 18 “also enforces § 13-1003 as applied to § 13-2319 by arresting 19 individuals for, and detaining them under, the criminal charge 20 of conspiring to violate Arizona’s human smuggling statute when 21 probable cause exists to do so.” Id. at 2:5-7. Defendants also 22 point out that A.R.S. § 13-1006(B) recognizes that a person may Defendants’ Motion for Summary Along those 23 4 24 25 26 Section 13–2319 was amended by section four of “Support Our Law Enforcement and Safe Neighborhoods Act,” as amended by H.B. 2162 (“S.B. 1070”). That amendment, which is not relevant here, “made only a minor change to Arizona’s preexisting human smuggling statute, i.e., section 13–2319[,]” and did not affect its substantive scope. See We Are Am./Somos Am., Coal. of Ariz. v. Maricopa Cnty. Bd. of Supervisors, 809 F.Supp.2d 1084, 1086 n. 1 (D.Ariz. 2011) (“WAA/SACA IV”) (citation omitted). 27 28 -6- 1 commit conspiracy to commit an offense, even if that person 2 cannot be convicted of the offense itself.5 3 By June 2011, in accordance with the Policy, MCSO “deputies 4 had arrested at least 1,800 non-smugglers for conspiring to 5 violate § 13-2319.” Pls.’ SOF (Doc. 121-1) at 3, ¶ 3 (citations 6 omitted); see also Defs.’ Resp. SOF (Doc. 129) at 3, ¶ 3 7 (admit). 8 1,357 non-smugglers for conspiracy to violate § 13-2319.” 9 at 4, ¶ 4 (citation omitted); see also Defs.’ Resp. SOF (Doc. And, “[a]s of March 2010, the [MCAO] had prosecuted Id. 10 129) at 4, ¶ 4 (admit). 11 Maricopa County Sheriff Arpaio confirmed that the MCSO is 12 continuing 13 continues to prosecute them. Pls.’ Exh. 1 (Doc. 121-2) at 36:5- 14 10. 15 to arrest At his August 23, 2012, deposition, “co-conspirators” and that the MCAO The First Amended Complaint (“FAC”) alleges four separate 16 causes of action. Significantly however, believing they are 17 “clearly entitled” to summary judgment “on their first claim for 18 relief (preemption)[,]” the plaintiffs are “reced[ing] from 19 their remaining [three] claims[.]” 20 Memorandum in Opposition to Defendants’ Motion for Summary 21 Judgment (“Pls.’ Resp.”) (Doc. 126) at 16:27-28, n. 5. 22 obviates the need to Plaintiffs’ Responsive consider much of the defendants’ summary 23 5 24 25 26 27 28 This That statute provides as follows: It is not a defense to a prosecution for solicitation or conspiracy that the defendant is, by definition of the offense, legally incapable in an individual capacity of committing the offense that is the object of the solicitation or conspiracy. A.R.S. § 13-1006(B). -7- 1 judgment motion, which addressed all four claims. What remains, 2 as mentioned at the outset, is the vigorously disputed issue of 3 federal preemption. 4 to summary judgment on this issue. 5 the Policy is not preempted by federal immigration law, whereas 6 the plaintiffs argue that it is preempted. 7 plaintiffs are seeking certification of two alternative classes, 8 as more fully discussed herein. The parties each argue their entitlement The defendants argue that Additionally, the Discussion 9 10 “Bringing a class certification motion together with a Rule 11 56 motion[,]” as the plaintiffs have done, “is consistent with 12 the Federal Rules of Civil Procedure.” 13 of Sidney Mickell, 688 F.3d 1015, 1032 (9th Cir. 2012) (citing 14 cases). 15 motion to resolve first. 16 defendants argue, inter alia, that each of the remaining named 17 plaintiffs6 “lack standing to bring this suit for equitable 18 relief.” 19 opposing class certification, the defendants also argue that the 20 two municipal taxpayer plaintiffs, Dawn Haglund and David7 See Evon v. Law Offices At the outset, though, the court must determine which In their summary judgment motion, the Defs.’ SJM (Doc. 119) at 15:17. Similarly, in 21 22 23 24 25 26 27 28 6 In We Are America/Somos America Coalition of Arizona v. Maricopa Co. Bd. of Supervisors, 594 F.Supp.2d 1104 (D.Ariz. 2009) (“We Are America II”), based upon Younger abstention, this court held that it lacked jurisdiction to consider the claims of the six Mexican Nationals – a holding which the Ninth Circuit affirmed. We Are America/Somos America Coalition of Arizona v. Maricopa Co. Bd. of Supervisors, 386 Fed.Appx. 726, 727 (9th Cir. 2010). 7 The FAC’s caption accurately names David Lujan as a plaintiff, FAC but later it incorrectly refers to him as “Steve” Lujan” Compare (Doc. 45) at 1:23 with FAC (Doc. 45) at 8:13, ¶ 13. Despite this misidentification, it is clear that David Lujan and “Steve” Lujan are the same plaintiff. -8- 1 Lujan, lack standing. 2 If the defendants are correct, and none of the plaintiffs 3 have standing, then this court would not have subject matter to 4 consider 5 Righthaven LLC v. Hoehn, 716 F.3d 1166, 1172 (9th Cir. 2013) 6 (“In the absence of standing, a federal court ‘lacks subject 7 matter jurisdiction over the suit.’”) (quoting Cetacean Cmty. 8 v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (citing Steel Co. 9 v. Citizens for a Better Env’t, 523 U.S. 83, 101, 118 S.Ct. the merits, including class certification. See 10 1003, 140 L.Ed.2d 210 (1998)). 11 address 12 U.S., 271 F.R.D. 451, 454 (M.D.Pa. 2010) (“[p]rior to rendering 13 a disposition on the Plaintiff’s class certification motion, 14 [the court] first consider[ed] the United States’[] motion to 15 dismiss . . . for lack of subject matter jurisdiction . . . , 16 asserting that Tech lacks standing[]”); cf. Evon, 688 F.3d at 17 1032 (“While Rule 23 does not require a district court to fully 18 consider the merits of the plaintiffs’ claims, addressing the 19 merits of the claims in a related summary judgment motion can 20 have 21 determinations.”) 22 I. a Therefore, the court will first the parties’ summary judgment motions. substantial bearing on the See Tech v. required Rule 23 Summary Judgment Motions 23 The court assumes familiarity with what has sometimes been 24 referred to as the Celotex trilogy wherein the Supreme Court 25 clarified and refined the standards for deciding Rule 56 summary 26 judgment motions. See Anderson v. Liberty Lobby, Inc., 477 U.S. 27 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. 28 Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); -9- 1 and Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 2 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is no 3 need to repeat the entire body of summary judgment case law 4 which has developed since then. 5 that there are no material facts in dispute and the pending 6 motions turn on legal issues, making them proper for resolution 7 pursuant to Fed.R.Civ.P. 56. 8 250. That is especially so given See Liberty Lobby, 477 U.S., at 9 The summary judgment standards do not “change when the 10 parties file cross-motions for summary judgment: the court must 11 apply the same standard and rule on each motion independently 12 because 13 translate into the denial of the other unless[,]” as here, “the 14 parties rely on the same legal theories and same set of material 15 facts.” 16 *2 (E.D.Cal. June 10, 2013) (citing Pintos v. Pac. Creditors 17 Ass’n., 605 F.3d 665, 674 (9th Cir. 2010), cert. denied sub nom. 18 Experian Info. Solutions, Inc. v. Pintos, 562 U.S. ––––, 131 19 S.Ct. 900 (2011)). the granting of one motion does not necessarily See Feezor v. Excel Stockton, LLC, 2013 WL 2485623, at 20 A. Standing 21 Defendants assert that a party’s standing “is a fundamental 22 threshold inquiry[,]” while simultaneously asserting that 23 plaintiffs’ lack of standing is a “final reason” for granting 24 summary judgment. 25 omitted) (emphasis added). 26 then, 27 matter jurisdiction. 28 is the defendants’ last asserted basis for seeking summary Defs.’ SJM (Doc. 119) at 15:16 (citation If the plaintiffs lack standing as previously explained, this court would lack subject Therefore, even though lack of standing - 10 - 1 judgment, the court must address that argument first. Earlier 2 in this litigation the defendants brought a 3 “strictly facial[]” challenge to standing, arguing for dismissal 4 pursuant 5 F.Supp.2d at 1089 and n.4. 6 found 7 organizational standing as to We Are America/Somos America 8 Coalition of Arizona (“WAA/SACA”) and the American Hispanic 9 Community Forum (“AHCF”),8 and municipal taxpayer standing as to 10 to that Fed. the R. Civ. P. 12(b)(1). WAA/SACA IV, 809 Denying that motion, this court plaintiffs had sufficiently alleged plaintiffs David Lujan and LaDawn Haglund.9 11 Now, however, the standing issue is before the court in a 12 different procedural posture -– on a summary judgment motion. 13 Essentially the defendants are arguing that the plaintiffs’ 14 evidence is insufficient to confer standing upon any of them 15 because their grievances are too general to establish the 16 requisite Article III injury in fact. 17 that 18 organizational and taxpayer plaintiffs’ standing.” Pls.’ Resp. 19 (Doc. 126) at 8:19-20 (emphasis omitted). 20 21 “the uncontroverted The plaintiffs retort evidence establishes both Mere allegations were sufficient to establish standing with respect to the defendants’ earlier motion to dismiss, but at 22 23 24 25 26 27 28 8 This court also found that the FAC adequately alleged organizational standing as to plaintiff Friendly House. Since then, however, the parties have stipulated to the dismissal of Friendly House and others, leaving only two organizational plaintiffs. See Ord. (Doc. 109) at 2. 9 This court previously also found that the FAC adequately alleged municipal taxpayer standing as to plaintiffs Kyrsten Sinema and Cecilia Menjivar. Since then, however, the parties have stipulated to their dismissal, leaving Haglund and Lujan as the municipal taxpayer plaintiffs. See Ord. (Doc. 109) at 2. - 11 - 1 this juncture more is required. 2 judgment motion . . . to establish Article III standing, a 3 plaintiff can no longer rest on ‘mere allegations’ but must set 4 forth by affidavit or other admissible evidence ‘specific facts’ 5 as delineated in Federal Rule of Civil Procedure 56(e) as to the 6 existence of such standing.” 7 F.3d 1253, 1255-1256 (9th Cir. 2008) (quoting Lujan v. Defenders 8 of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 9 (1992)). 1. 10 “In response to a summary Gerlinger v. Amazon.com Inc., 526 Municipal Taxpayers10 11 “‘[I]mproper expenditure of public funds’ is the crux of 12 any claim that a municipal taxpayer satisfies the injury in fact 13 prong of constitutional standing[,]” as fully discussed in 14 WAA/SACA IV, 809 F.Supp.2d at 1108 (citing Cammack v. Waihee, 15 932 F.2d 765, 770 (9th Cir. 1991)). 16 Ninth 17 Barnes–Wallace v. City of San Diego, 530 F.3d 776, 786 (9th Cir. 18 2008) . . . (“[M]unicipal taxpayers must show an expenditure of 19 public funds to have standing.”)) “In fact, the premise that an 20 ‘unconstitutional expenditure of government funds can itself be 21 injury enough to confer municipal-taxpayer standing’ is not 22 unremarkable as a general proposition.” 23 v. Jefferson County Bd. of School Com’rs, 641 F.3d 197, 213 (6th 24 Cir. 2011) (citation omitted) (Sixth Circuit noted that its 25 “sister circuits[,]” including the Ninth in Cammack, “all agree” Circuit has reaffirmed “As recently as 2008, the this view.” Id. (citing Id. (quoting Smith 26 27 28 10 The court incorporates by reference as if fully set forth herein its discussion of the governing standing principles and ensuing analysis in WAA/SACA IV, 809 F.Supp.2d at 1089-1112. - 12 - 1 with that general proposition). Succinctly put, Article III standing comprises three 2 3 elements: (1) injury in fact; (2) causal connection; and 4 (3) redressability. 5 Protection Agency, 633 F.3d 894, 897 (9th Cir. 2011). 6 that the defendants are once again confining their argument to 7 the injury in fact element, presumably they are conceding, as 8 this court previously found, that the municipal taxpayer11 9 plaintiffs have shown the latter two standing elements. See Barnum Tiber Co. v. U.S. Environmental 10 WAA/SACA IV, 809 F.Supp.2d at 1105. 11 Given See The court will confine its analysis accordingly. 12 The defendants make the blanket assertion that municipal 13 taxpayer plaintiff LaDawn Haglund lacks standing because her 14 “injury . . . is simply a generalized grievance that she does 15 not like any tax money, . . . , being used for governmental 16 decisions she disagrees with as a matter of public policy, such 17 as the Policy.” 18 omitted). 19 “argument” as to plaintiff Haglund. Overlooking the lack of any 20 analysis, the court is compelled to comment upon the liberties 21 which the defendants have taken in describing the portion of 22 plaintiff Haglund’s deposition to which they cite. Defs.’ SJM (Doc. 119) at 16:26-17:2 (citation This is the sum total of the defendants’ standing 23 In that snippet, plaintiff Haglund was explicitly asked, 24 “[W]hat is the injury to you because of th[is] [P]olicy[?]” 25 Defs.’ Exh. C (Doc. 120-1) at 18:5-6. Directly responding, 26 27 28 11 Because it is no longer necessary to distinguish between federal, state and municipal taxpayers, hereinafter all references to taxpayers shall be read as referring to the municipal taxpayer plaintiffs. - 13 - 1 plaintiff Haglund stated, “[M]y “tax money is being used to 2 house and prosecute and detain non-criminals, in my view, 3 economic migrants and treating them as criminals.” 4 18:13-15. 5 many ways[,]” plaintiff Haglund further testified that given the 6 “federal rules . . . for dealing with immigrants, . . . using 7 . . . my 8 from prosecuting real criminals.” 9 Id. at Describing this use of her tax money as “a misuse in tax dollars to prosecute economic migrants detracts Id. at 18:16-20. This testimony cannot be reasonably interpreted to support 10 defendants’ characterization thereof. 11 does not show a “generalized grievance that [plaintiff Haglund] 12 does not like any tax money . . . being used for governmental 13 decisions she disagrees with as a matter of public policy[.]” 14 See Defs.’ SJM (Doc. 119) at 16:27-17:1 (citation omitted) 15 (emphasis added). 16 narrowly tailored question regarding any injury to her as a 17 result of the Policy, and she responded accordingly. 18 not asked about any “governmental decisions” beyond the Policy. 19 Obviously then, 20 testimony 21 decisions as to the expenditure of her tax dollars. 22 assuming 23 irrelevant. 24 defendants’ depiction of plaintiff Haglund’s testimony, which 25 does nothing to advance their argument that she lacks standing. the Rather, plaintiff Haglund responded to a She was there is no way to know from the cited plaintiff existence Haglund of views such other testimony, governmental it would Even be Consequently, the court gives no credence to the that defense 27 argument, but there is no legal basis for it either. As this 28 court previously found, the municipal taxpayers sufficiently 26 Not how Plainly, the foregoing only is there no factual - 14 - basis for 1 alleged the requisite injury in fact by alleging their status 2 as municipal taxpayers and the improper expenditure of municipal 3 funds. 4 plaintiffs’ 5 judgment 6 plaintiff Haglund’s standing as a municipal taxpayer. See WAA/SACA IV, 809 F.Supp.2d at 1104-1109. evidence motion offered substantiates in support the FAC’s of their The summary allegations as to First, plaintiff Haglund’s status as a Maricopa County 7 8 taxpayer is undisputed. Since 2005, she has been a Maricopa 9 County resident. See Pls.’ Supp. Exh. 19 (Doc. 126-3) at 68:11- 10 16. 11 County and paid property taxes thereon. Id. at 68:17-23. In 12 October renting in 13 Maricopa County. 14 property taxes and rent on that residence. 15 By statute, such taxes are paid to the treasury of Maricopa 16 County which “shall apportion and apply the[m] . . . to the 17 several special and general funds as provided by law.” 18 A.R.S. § 11-492. 19 From 2005 until 2011, she owned real property in Maricopa In 2011, plaintiff addition Haglund Id. at 69:6-13. to property began a house She is charged for and pays taxes, as Id. at 69:14-70:14. a Maricopa See County 20 resident, plaintiff Haglund pays a “special sales tax[]” – the 21 “Jail Excise Tax.” 22 see also Pls.’ Exh. 1 (Doc. 121-2) at 39:15-17 (Defendant Arpaio 23 testified that “the operations of the [County] jails come from 24 a tax that was passed by the people of this [C]ounty several 25 years ago[]” 26 used to “fund construction and operation of adult and juvenile 27 detention facilities[]” where defendants detain, among others, 28 those arrested pursuant to the Policy. See Pls.’ Supp. Exh. 20 (Doc. 126-3) at 90; — “a special budget[.]”) - 15 - This Jail Excise Tax is See Pls.’ Supp. Exh. 20 1 (Doc. 126-3) at 90. In fiscal year 2011, Maricopa County 2 collected $112,451,802.00. 3 approximately 2027. Id. This Tax will continue until See id. 4 Besides establishing that plaintiff Haglund is a Maricopa 5 County taxpayer, the evidence bears out the FAC’s allegations 6 that County funds are being expended to carry out the Policy. 7 County taxes, such as those paid by plaintiff Haglund, are used 8 for a variety of MCSO’s activities related to the Policy, as 9 defendant Arpaio admits. As defendant Arpaio admitted, those 10 activities include: (1) “training MCSO deputies to detect and 11 arrest persons who conspire to transport themselves in violation 12 of A.R.S. § 13-2319[;]” (2) “transport[ing] persons arrested for 13 conspiring 14 statute; and (3) “jail[ing] persons arrested for conspiring to 15 transport themselves in violation of A.R.S. § 13-2319.” 16 Supp. Exh. 11 (Doc. 126-2) at 77:12-14, ¶ 63; 77:16-18, ¶ 64; 17 and 77:9-10, ¶ 62. to transport themselves in violation of” that Pls.’ 18 County taxes are likewise being expended by the MCAO to 19 carry out the Policy, as defendant Maricopa County Attorney 20 Montgomery admits. 21 Supervisors “appropriates funds for the operations of the MCAO.” 22 Pls.’ Supp. Exh. exh. 12 (Doc. 126-2) at 93:27-94:1, ¶ 72. 23 MCAO, in turn, “spends tax revenues to prosecute persons for 24 conspiring to transport themselves in violation of A.R.S. § 13- 25 2319[,]” as well as for training personnel to conduct such 26 prosecutions, as defendant Montgomery also admits. Id. at 93:4- 27 10, ¶¶ 68-69. 28 The defendant Maricopa County Board of The Furthermore, the defendants concede that “[b]y June 10, - 16 - 1 2011, [MCSO] deputies had arrested at least 1,800 non-smugglers 2 for conspiring to violate § 13-2319[;]” and “[a]s of March 2010, 3 the [MCAO] had prosecuted 1,357 non-smugglers” for that same 4 crime. 5 (citations omitted); see also Defs.’ Resp. SOF (Doc. 129) at 6 3:15-16. It costs $91.73 per day to detain an individual in the 7 Maricopa 8 (Maricopa Co. Justice System Annual Activities Report FY 2011) 9 at 44. Pls.’ SOF County (Doc. jail.12 121-1) Pls.’ at Supp. 3:26-4:7, Exh. 18 ¶¶ 3 (Doc. and 4 126-3) This evidence confirms the expenditure of plaintiff 10 Haglund’s County taxes to arrest, 11 detain, and prosecute individuals pursuant to the Policy. 12 In short, plaintiffs’ evidence fully corroborates the FAC’s 13 allegations that Ms. Haglund is a municipal taxpayer, as well 14 as the expenditure of Maricopa County taxes in connection with 15 the Policy. 16 injury in fact prong of municipal taxpayer standing 17 element with which the defendants take issue. 18 City Healthcare District, 806 F.Supp.2d 1154, 1165 (S.D.Cal. 19 2012) (no municipal taxpayer standing where plaintiff did not 20 “show[] an expenditure of public funds[]” and “provided no 21 evidence indicating how much money had been spent” regarding the 22 challenged conduct “or where the funds came from[]”). There is thus no dispute that she satisfies the – the only Cf. Page v. Tri- 23 Tellingly, in the face of this undisputed evidence, the 24 defendants’ reply is conspicuously silent on the issue of 25 standing. The defendants do not contest plaintiffs’ evidence 26 27 28 12 This figure was derived by dividing the total number of jailed adults in fiscal year 2011 by the total spent for detaining those adults. See Pls.’ Controverting SOF, exh. 18 thereto (Doc. 126-3) at 44. - 17 - 1 or legal position in any way. 2 court finds that plaintiff Haglund has standing as a municipal 3 taxpayer. 4 summary judgment motion. Thus, the court denies this aspect of defendants’ There 5 For all of these reasons, the are no readily discernible differences between 6 taxpayer plaintiffs Haglund and Lujan in terms of the evidence 7 pertaining to their standing. 8 County resident of longstanding and “regularly pays taxes to 9 Maricopa County, including, but not limited to, the . . . Jail Plaintiff Lujan is a Maricopa 10 Excise Tax[.]” 11 thereto (Lujan Decl’n) at 191, ¶ 2. 12 proffering 13 establish his standing as a taxpayer. 14 126) 15 inconsistently, are not challenging plaintiff Lujan’s standing. 16 Nonetheless, the evidence which supports a finding of taxpayer 17 standing as to plaintiff Haglund supports the same finding as 18 to 19 standing to pursue the preemption claim. 20 2013 WL 4734032, at *4 (9th Cir. Sept. 4, 2013) (quoting 21 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 22 1854, 164 L.Ed.2d 589 (2006)) (“[A] plaintiff must demonstrate 23 standing for each claim[.]’”) at Pls’. Controverting SOF (Doc. 126-3), exh. 17 the same undisputed 9:11-10:26. plaintiff Lujan. evidence Despite Thus, And, the plaintiffs are both outlined above See Pls.’ Resp. (Doc. that, taxpayer the defendants, plaintiffs have See Haro v. Sebelius, “[S]tanding is not dispensed in gross[,]” however. 24 to Lewis 25 v. Casey, 518 U.S. 343, 358 n. 6, 116 S.Ct. 2174, 135 L.Ed.2d 26 606 (1996). 27 It 28 “‘standing . . . for each form of relief sought.’” See Haro, also must Therefore, the court’s inquiry cannot end here. decide whether the - 18 - taxpayer plaintiffs have 1 2013 WL 4734032, at *4 (quoting DaimlerChrysler, 547 U.S., at 2 352). The difference between the FAC and the plaintiffs’ summary 3 judgment motion, in terms of the relief sought, requires the 4 court to first ascertain exactly what types of relief the 5 plaintiffs are seeking. 6 In their prayer for relief, the plaintiffs are seeking 7 declaratory and injunctive relief, as well as attorneys’ fees 8 and costs pursuant to 42 U.S.C. § 1988(b). FAC (Doc. 45) at 28- 9 29, ¶¶ 3-5. In their summary judgment motion, however, the 10 plaintiffs are expanding the scope of the relief. 11 plaintiffs 12 previously injured by defendants detaining, arresting, and 13 prosecuting non-smuggler migrants for conspiracy to transport 14 themselves in violation of Ariz. Rev. Stat. § 13-2319[.]” Pls.’ 15 SJM (Doc. 121) at 3:5-9 (emphasis added). 16 proposed summary judgment order reveals the nature of such 17 relief. 18 “[c]onvictions 19 transport themselves, and no one else, in purported violation 20 of 21 Supremacy 22 accordingly declared null and void.” 23 Order (Doc. 123) at 2:2-5, ¶ 3. Ariz. are also seeking “to make whole Now, the class members The plaintiffs’ More specifically, the plaintiffs request that the Rev. secured Stat. Clause, against persons § 13-2319 are U.S. Const., Art. for conspiring inconsistent VI, cl. to with the and are 2, Proposed Summary Judgment The court will not consider whether the taxpayer plaintiffs 24 25 (or, for that 26 standing 27 declaratory 28 plaintiffs’ two proposed class definitions includes putative to matter, the pursue this relief. In organizational belated the request first - 19 - plaintiffs) for place, have retrospective neither of the 1 class members who were “previously injured by” the Policy. See 2 id. at 3:6. 3 proposed class is: “All individual who are . . . stopped, 4 detained, arrested, incarcerated, prosecuted, or penalized for 5 conspiring to transport themselves, and themselves only, in 6 violation of Ariz. Rev. Stat. § 13-2319[.]” Class Certification 7 Mot. (Doc. 122) at 5:26-28 (emphasis added). The second 8 proposed class pertains to municipal taxpayers. Thus, even 9 assuming As plaintiffs themselves define it, their first arguendo that the court were to grant class 10 certification to both classes, by plaintiffs’ own definition, 11 neither would include “class members previously injured” by the 12 Policy. See Pls.’ SJM (Doc. 121) at 3:6. 13 The second reason for declining to consider whether any of 14 the plaintiffs have standing to pursue retrospective declaratory 15 relief 16 adequately addressed by the plaintiffs. The plaintiffs did not 17 seek this form of relief in their FAC. In the final paragraph 18 of the FAC, the plaintiffs do request the court to “[g]rant such 19 further relief as [it] deems just.” 20 That boilerplate phrase is insufficient to put the defendants 21 on notice that as part of this lawsuit the plaintiffs are asking 22 this federal court to nullify potentially thousands of prior 23 state court convictions. is that this request is belated and has not been FAC (Doc. 45) at 29, ¶ 6. 24 Rule 54(c) does permit a court to “grant the relief to 25 which each party is entitled, even if the party has not demanded 26 that relief in its pleadings.” 27 plaintiffs certainly have not shown their entitlement to this 28 particular relief, however. Fed.R.Civ.P. 54(c). The They only mention it once in - 20 - 1 passing in their summary judgment motion, and then include it 2 in a proposed order submitted in connection with that motion. 3 The lack of any briefing on plaintiffs’ supposed entitlement to 4 retrospective declaratory relief is problematic because it is 5 not a “predictable remedy” as to their preemption claim. Contra 6 Mueller v. Auker, 2010 WL 2265867, at *5 (D.Idaho June 4, 2010) 7 (“A predictable remedy for constitutional violations includes 8 declaratory and injunctive relief[.]”) Lastly, the court is 9 concerned about possible prejudice to the defendants given that 10 the plaintiffs’ demand for this retrospective declaratory relief 11 was explicitly raised for the first time in their proposed 12 summary judgment order. 13 Having determined that the potential available relief in 14 this case is prospective declaratory and injunctive relief, the 15 court will 16 standing to seek such relief. 17 a plaintiff seeking prospective injunctive relief’ generally 18 requires that the plaintiff’s concrete injury be ‘coupled with 19 ‘a sufficient likelihood that he will again be wronged in a 20 similar way.’’” 21 United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en 22 banc) ((quoting in turn City of Los Angeles v. Lyons, 461 U.S. 23 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). 24 the claimed threat of injury must be likely to be redressed by 25 the 26 (citation omitted). 27 decision will inevitably redress [their injuries][.]’’” See 28 Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 993 (9th Cir. next address whether the taxpayer plaintiffs have prospective “‘The standing formulation for Haro, 2013 WL 4734032, at *4 (quoting Bates v. injunctive relief.” Bates, “In addition, 511 F.3d 985 That does not mean “‘‘that a favorable - 21 - 1 2012) (quoting Wilbur v. Locke, 423 F.3d 1101, 1108 (9th 2 2005) (internal quotations omitted, emphasis and alterations in 3 original) (quoting in turn Graham v. FEMA, 149 F.3d 997, 1003 4 (9th Cir. 1998), abrogated on other grounds by Levin v. Commerce 5 Energy, Inc., 560 U.S. 413, 130 S.Ct. 2323, 176 L.Ed.2d 1131 6 (2010)).” 7 favorable decision is likely to redress [their injuries][.]’’” 8 Id. Cir. Rather, the “‘‘[p]laintiffs must show only that a That standard is met here. 9 The taxpayer plaintiffs have shown a concrete, “necessary 10 injury – actual expenditure of tax dollars” vis-a-vis the 11 Policy. 12 1991). 13 to . . . arrest and prosecute” persons for conspiring to 14 transport themselves in violation of Arizona’s human smuggling 15 statute. 16 Defs.’ Resp. SOF (Doc. 129) at 3:17-4:6, ¶ 5. 17 injury 18 Consequently, 19 taxpayer plaintiffs “will again be wronged in a similar way[,]” 20 i.e., by having their County taxes expended to enforce a Policy 21 which they maintain federal law preempts. 22 4734032, at *4 (internal quotation marks and citations omitted). 23 Additionally, the claimed threat of injury – the misuse of 24 the taxpayers’ County taxes to fund the Policy – is likely to 25 be remedied by prospective injunctive and declaratory relief. 26 As plaintiff Lujan succinctly put it, enjoining the Policy would 27 mean that his “local tax payments would no longer be diverted 28 to th[e] unlawful purpose” of the Policy. Cammack v. Waihee, 932 F.2d 765, 772 (9th Cir. See Furthermore, the defendants admit that they “continue See Pls.’ SOF (Doc. 121-1) at 4:8-10, ¶ 5; see also to the taxpayer there is “a Therefore, the plaintiffs continues sufficient likelihood” - 22 - unabated. that the See Haro, 2013 WL Pls.’ Supp. Exh. 17 1 (Doc. 126-3) at 42, ¶ 4. This is fully consistent with the long 2 held view, as laid out in WAA/SACA IV, 809 F.Supp.2d 1084, that 3 “‘[t]he 4 application of its moneys is direct and immediate and the remedy 5 by injunction to prevent their misuse is not inappropriate.’” 6 Id. at 1106 (quoting Frothingham v. Mellon, 262 U.S. 447, 486- 7 487, 43 S.Ct. 597, 67 L.Ed. 1078 (1923)). 8 reasons, the court finds that plaintiffs Haglund and Lujan have 9 municipal taxpayer standing as to the preemption claim and as interest of a taxpayer of a municipality in the For all of these 10 to the prospective equitable relief sought. Thus, the court 11 denies this aspect of defendants’ summary judgment motion. 12 If the court finds, as it has, that the municipal taxpayer 13 plaintiffs have standing, then, they contend (and the defendants 14 do not disagree), that there is no need to consider whether the 15 organizational plaintiffs also have standing. 16 their contention upon the “general rule 17 suits with multiple plaintiffs . . . that once the court 18 determines that one of the plaintiffs has standing, it need not 19 decide the standing of the others.” See Melendres v. Arpaio, 695 20 F.3d 990, 999 (9th Cir. 2012) (quoting Leonard v. Clark, 12 F.3d 21 885, 888 (9th Cir. 1993)). 22 passengers and the organization Somos America, brought an action 23 under § 1983 alleging that the MCSO and Sheriff Arpaio, among 24 others, engaged in a policy of racially profiling Latinos in 25 connection with traffic stops. 26 Melendres, 27 motorists and passengers had standing, expressly declined to 28 “address the whether Ninth Somos Plaintiffs base [in] federal court In Melendres, Latino motorists and Applying that general rule in Circuit, America, - 23 - after an finding that organization, Latino met the 1 requirements for associational standing.” Id. 2 This court did depart from that general rule in WAA/SACA 3 IV, 809 F.Supp.2d at 1090-1094, as the parties are well aware. 4 The standing issue is before the court now in a different 5 procedural posture --– on a motion for summary judgment motion, 6 not on a motion to dismiss. 7 intimated in WAA/SACA IV, having found that the municipal 8 taxpayer plaintiffs have standing as to the preemption claim and 9 for the relief sought, the court will not address whether the 10 WAA/SAC and AHFC, the organizational plaintiffs, also have 11 standing. 12 moving for summary judgment on the dual grounds of lack of 13 standing and the merits, plaintiffs’ argument that the court 14 need not reach the issue of organizational plaintiffs’ standing, 15 if it finds that the taxpayers have standing, would carry far 16 more weight.”) 17 B. Consequently, as it strongly See id. at 1093 (“By contrast, if defendants were It is simply not necessary. Federal Preemption13 18 The plaintiffs are pursuing only their “Federal Preemption” 19 claim, opting for voluntary dismissal of their other claims. 20 See 21 Policy “is an impermissible attempt by state actors to regulate 22 immigration, FAC (Doc. 45) at 25:25. and as such The plaintiffs allege that the unlawfully usurps the federal 23 24 25 26 27 28 13 As the defendants acknowledge, although the preemption issue arose earlier in this case in a different context, the court “has not dispositively ruled on whether the Policy is preempted by federal immigration law.” Defs.’ SJM (Doc. 119) at 2:19, n. 1. Therefore, nothing about those prior decisions precludes revisiting the preemption anew. This is all the more so given: (1) the completion of discovery, and hence a more fully developed record; (2) the federal preemption issue is squarely raised by the parties’ summary judgment motions; and (3) the evolving state of the law in this area. - 24 - 1 government’s 2 violation 3 Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq. 4 (“INA”). 5 judgment on this claim, the plaintiffs argue that federal law 6 impliedly preempts the Policy. 7 argue that federal law does not impliedly preempt the Policy. 8 The defendants thus assert that they, and not the plaintiffs, 9 are 10 11 of exclusive the power United to regulate Constitution”14 States Id. at 25:28-26:2, ¶ 53. entitled to summary immigration and in the In moving for summary Contrariwise, the defendants judgment on the issue of field preemption. Before considering the parties’ preemption arguments, 12 there is one prefatory issue. From the inception of this 13 lawsuit, the plaintiffs made a seemingly deliberate choice to 14 challenge only the Policy --- and not A.R.S. § 13-2319. 15 defendants are taking the position, however, that because the 16 plaintiffs are not attacking the constitutionality of 17 § 13-2319, or arguing that federal law preempts that state 18 statute, they cannot argue that federal law preempts the Policy 19 itself. 20 proposition. 21 theories which they pursue are their prerogative. 22 therefore, agrees with the plaintiffs that they may challenge 23 the Policy as conflict and field preempted “regardless of § 13- 24 2319's facial constitutionality.” 25 at 9:20-21. The A.R.S. The defendants offer no legal support for this novel The allegations of plaintiffs’ FAC and the legal The court, See Pls.’ Reply (Doc. 134) 26 14 27 28 The constitutional basis for plaintiffs’ argument is Congress’ power “[t]o establish an uniform Rule of Naturalization[,]” and its power “[t]o regulate Commerce with foreign Nations[.]” See U.S. Const. Art. I, § 8, cls. 3-4. - 25 - 1 “The Supremacy Clause provides a clear rule that federal 2 law ‘shall be the supreme Law of the Land; and the Judges in 3 every 4 Constitution 5 notwithstanding.’” Arizona v. U.S., 567 U.S. ----, 132 S.Ct. 6 2492, 2500, 183 L.Ed.2d 351 (2012) (quoting U.S. Const. Art. VI, 7 cl. 8 Constitution . . . that Congress has the power to preempt state 9 law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372, 10 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) (citations omitted). 11 Moreover, on “the subject of immigration and the status of 12 aliens[,]” “[t]he Government of the United States has broad, 13 undoubted power[.]” Arizona, 132 S.Ct., at 2498 (citations 14 omitted); see also DeCanas v. Bica, 424 U.S. 351, 354, 96 S.Ct. 15 933, 47 L.Ed.2d 43 (1976), superseded by statute on other 16 grounds as stated in Chamber of Comm. v. Whiting, 563 U.S. ----, 17 131 S.Ct. 1968, 179 L.Ed.2d 1031 (2011) (The “[p]ower to 18 regulate immigration is unquestionably exclusively a federal 19 power.”) Indeed, that power is “well settled[,]” reflective of, 20 among other things, 21 affect trade, investment, tourism, and diplomatic relations for 22 the entire Nation, as well as the perceptions and expectations 23 of aliens in this country who seek the full protection of its 24 laws.” State 2). It shall or is be Laws thus bound of thereby, any “[a] State fundamental any to Thing the principle in the Contrary of the the fact that “[i]mmigration policy can Arizona, 132 S.Ct., at 2498 (citations omitted). 25 This federal immigration power derives, in part, from the 26 federal government’s “constitutional power to ‘establish an 27 uniform Rule of Naturalization,’ . . . , and its inherent power 28 as sovereign to control and conduct relations with foreign - 26 - 1 nations[.]” Id. (citations omitted). That said, the Supreme 2 Court “has never held that every state enactment which in any 3 way deals with aliens is a regulation of immigration and thus 4 per se pre-empted by this constitutional power[.]” DeCanas, 424 5 U.S., at 355 (citations omitted). Federal preemption can be either express or implied. 6 Gade 7 v. National Solid Wastes Management Assn., 505 U.S. 88, 98, 112 8 S.Ct. 2374, 120 L.Ed.2d 72 (1992). 9 only issue which these summary judgment motions raise, however. preemption comprises Implied preemption is the 10 Implied two, albeit “not rigidly 11 distinct[,]” subcategories, –- field and conflict preemption. 12 Crosby, 530 U.S., at 372 n. 6 (internal 13 citation omitted). 14 regulating conduct in a field that Congress, acting within its 15 proper authority, has determined must be regulated by its 16 exclusive governance.” 17 omitted). 18 both 19 impossibility[.]” Florida Lime & Avocado Growers, Inc. v. Paul, 20 373 U.S. 132, 142–143, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963). 21 It can also occur in “those instances where the challenged state 22 law ‘stands as an obstacle to the accomplishment and execution 23 of the full purposes and objectives of Congress[.]’” Arizona, 24 132 S.Ct., at 2501 (quoting Hines, 312 U.S., at 67, 61 S.Ct. 25 399). 26 arguments center on actual and obstacle preemption, as opposed 27 to 28 analysis. quotation marks and Field preemption precludes States “from Arizona, 132 S.Ct., at 2501 (citation Conflict preemption occurs where “compliance with federal and state regulations is a physical In the present case, the parties’ conflict preemption impossibility. The court - 27 - will similarly confine its 1 “There are ‘two cornerstones’ of preemption jurisprudence.” 2 Aguayo v. U.S. Bank, 653 F.3d 912, 917 (2011) (quoting Wyeth v. 3 Levine, 555 U.S. 555, 129 S.Ct. 1187, 1194, 173 L.Ed.2d 51 4 (2009). First, “[r]egardless of the type of preemption involved 5 . . . ‘[t]he purpose of Congress is the ultimate touchstone of 6 pre-emption analysis.’” Gilstrap v. United Air Lines, Inc., 709 7 F.3d 995, 1003 (9th Cir. 2013) (quoting Cipollone v. Liggett 8 Grp., Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 9 (1992) (internal quotation marks omitted)). Second, a court 10 “should assume that ‘the historic police powers of the States’ 11 are not superseded ‘unless that was the clear and manifest 12 purpose of Congress.’” See Arizona, 132 S.Ct., at 2501 (quoting 13 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 14 1146, 91 L.Ed. 1447 (1947)) (other citation omitted). 15 these principles firmly in mind, the court will first consider 16 whether federal law, and more particularly the INA, preempts the 17 Policy. 18 19 1. With Field Preemption The crux of the defendants’ field preemption argument 20 is the latter principle. That is, the defendants argue that 21 they should prevail on the field preemption issue because the 22 plaintiffs cannot “prove . . . 23 manifest purpose of Congress’ to oust state power from the 24 field” of alien smuggling. 25 (citing, inter alia, DeCanas, 424 U.S., at 357) (emphasis added 26 by defendants). 27 because Congress “fully regulates conspiracies to transport 28 unauthorized entrants[,]” the Policy is field preempted. that it was ‘the clear and Defs.’ SJM (Doc. 119) at 8:25-9:1 On the other hand, the plaintiffs argue that - 28 - Pls.’ 1 SJM 2 plaintiffs rely upon the Supreme Court’s rationale in Arizona, 3 132 S.Ct. 2492. 4 Supreme Court held, inter alia, that because “the Federal 5 Government has occupied the field of alien registration[,]” 6 § 3 of S.B. 1070, which made it a state misdemeanor to fail to 7 comply with federal alien registration requirements, was field 8 preempted. 9 (Doc. 121) at 10:5-6. In making this argument, Pls.’ SJM (Doc. 121) at 10:7. the There, the Id. at 2502 (citations omitted). The plaintiffs also heavily rely upon two Eleventh Circuit 10 decisions – Georgia Latino Alliance for Human Rights v. Deal, 11 691 F.3d 1250, 1256 12 States v. Alabama, 691 F.3d 1269, 1285 (11th Cir. 2012), cert. 13 denied, 569 U.S. ----, 133 S.Ct. 2022, 185 L.Ed.2d 905 (Apr. 29, 14 2013). 15 2011, Georgia and Alabama criminalized a variety of activities 16 pertaining aliens, including 17 transporting, concealing or harboring such aliens. In GLAHR, 18 the Eleventh Circuit affirmed a district court’s finding that 19 those 20 criminal provisions, particularly 8 U.S.C. § 1324. 21 F.3d at 1285-1287; see also 22 (applying GLAHR’s reasoning to finding similar Alabama statutes 23 field preempted); Valle del Sol v. Whiting, 2012 WL 8021265, at 24 *5 (D.Ariz. Sept. 5, 2012)15 (adopting the Eleventh Circuit’s 25 rationale, (11th Cir. 2012) (“GLAHR”); and United As part of sweeping immigration reform legislation in to Georgia and unauthorized statutes holding or were illegal field preempted by the INA’s GLAHR, 691 Alabama, 691 F.3d at 1285-1287 that § 5 of S.B. 1070, Arizona’s 26 27 28 15 This appeal was argued and submitted in the Ninth Circuit on April 2, 2013. Valle del Sol v. Whiting, No. 12-17152. A decision has yet to be issued. - 29 - 1 counterpart to the statutes at issue in GLAHR and Alabama, was 2 field preempted). 3 Maintaining that “[t]here is no principled way to 4 distinguish” the Policy from the state statutes at issue in 5 Arizona, GLAHR, Alabama, and Valle del Sol, the plaintiffs argue 6 that those cases are determinative of the field preemption issue 7 herein. 8 rejoinder is that the Policy is “materially and substantively 9 different” from the challenged statutes in the cases just See Pls.’ SJM (Doc. 121) at 11:7. Defs.’ Reply (Doc. 132) at 4:4-5. The defendants’ 10 listed. 11 claimed differences, the defendants argue that none of the cases 12 upon which the plaintiffs are relying apply to the field 13 preemption issue now before this court. 14 dispute as to the applicability of Arizona and the Eleventh 15 Circuit’s 16 examination of each. decisions in GLAHR and Based upon those The parties’ strong Alabama require closer 17 In Arizona, to determine whether § 3 of S.B. 1070 intruded 18 on the field of alien registration, the Supreme Court began by 19 reiterating that “the States are precluded from regulating 20 conduct in a field that Congress, acting within its proper 21 authority, has determined must be regulated by its exclusive 22 governance.” 23 The Supreme Court also recited the well settled rule that “[t]he 24 intent to displace state law altogether can be inferred from a 25 framework of regulation ‘so pervasive . . . that Congress left 26 no room for the States to supplement it’ or where there is a 27 ‘federal interest . . . so dominant that the federal system will 28 be assumed to preclude enforcement of state laws on the same Arizona, 132 S.Ct., at 2501 (citation omitted). - 30 - 1 subject.’” Id. (quoting Rice, 331 U.S., at 230) (other citation 2 omitted) (emphasis added). Examining 3 the history of federal alien registration 4 requirements against that legal backdrop, the Arizona Court held 5 that the federal government has occupied that field because 6 “[t]he federal statutory directives provide a full set of 7 standards governing alien registration, including punishment for 8 noncompliance[,] . . . designed as a harmonious whole.” 9 (internal quotation marks and citation omitted). Id. In such a 10 case, “[w]here Congress occupies an entire field,” the Supreme 11 Court 12 impermissible.” 13 regulation 14 reflects 15 regulation in the area, even if it is parallel to federal 16 standards.” found that is a “even complementary state regulation Arizona, 132 S.Ct., at 2502. “impermissible” congressional because decision to “[f]ield foreclose is Such state preemption any state Id. (citation omitted) (emphasis added). 17 The defendants assert that the plaintiffs’ “heavy reliance” 18 upon Arizona is “mistaken[,]” as the Supreme Court’s “analysis[] 19 is not controlling.” Defs.’ Resp. (Doc. 128) at 2:12 (emphasis 20 omitted); 21 this defense argument is the difference in subject matter. 22 Unlike the present case involving alien smuggling, the portion 23 of 24 registration, and it has long been held “that the Federal 25 Government . . . occupie[s]” that field. 26 S.Ct., at 2502 (citations omitted). 27 render Arizona any less applicable here. 28 discussed next, in GLAHR the Eleventh Circuit soundly reasoned, Defs.’ Reply (Doc. 132) at Arizona which the plaintiffs - 31 - 3:6. invoke The main basis for dealt with alien See Arizona, 132 This distinction does not That is because, as 1 and this court agrees, that Arizona “provides an instructive 2 analogy” even outside the realm of alien registration. 3 GLAHR, 691 F.3d at 1264. In other words, Arizona’s significance 4 lies not in its subject matter but because it provides a useful 5 framework for examining preemption in the context of federal 6 immigration. See 7 Broadly stated, Georgia enacted statutes criminalizing the 8 transport, concealment and harboring of illegal aliens, as 9 earlier mentioned. When confronted with the issue of whether 10 those statutes were preempted by the INA, the Eleventh Circuit 11 looked first to the text of 8 U.S.C. § 1324 to ascertain 12 Congressional intent. 13 crimes with respect to unlawfully present aliens. 14 makes it a federal crime for any person to bring an alien into 15 the United States; to “transport or move an unlawfully present 16 alien within the United States; to conceal, harbor, or shield 17 an unlawfully present alien from detection; or to encourage or 18 induce an alien to come to, enter, or reside in the United 19 States.” 20 footnote omitted). 21 any person to conspire or aid in the commission of any of those 22 enumerated offenses. Id. Section 1324 creates several discrete That statute Id. at 1263 (citation, internal quotation marks and It is also unlawful pursuant to § 1324 for (citation omitted). 23 “[P]ermit[ting] local law enforcement officers to arrest 24 for these violations of federal law,” while simultaneously 25 “maintaining exclusive jurisdiction” for “federal prosecution 26 in 27 comprehensive framework of the INA, the GLAHR Court reasoned. 28 Id. at 1264 (citations omitted). federal court[,]” provided - 32 - further indicia of the The sweep of § 1324 includes 1 dictating evidentiary rules for one of the enumerated offenses, 2 as well as mandating a community outreach program regarding the 3 penalties associated with bringing in and harboring aliens in 4 violation of that statute. Citing to De Canas, 424 U.S. 351, the 5 Court in GLAHR, concluded that “[i]n the absence of a savings 6 clause permitting the regulation in the field, the inference 7 from these enactments is that the role of the states is limited 8 to arrest for violations of federal law.” 9 persuaded the Eleventh Circuit in GLAHR that “[t]he INA provides a 11 concealment, and inducement of unlawfully present aliens.” 12 at 1263. To bolster framework this to penalize conclusion, the the The foregoing 10 13 comprehensive Id. transportation, GLAHR Court Id. examined 14 section 1324's place in the “larger context of federal statutes 15 criminalizing the acts undertaken by aliens[.]” Id. at 1264. 16 After so doing, the Court found that “the federal government has 17 clearly expressed more than a ‘peripheral concern’ with the 18 entry, movement, and residence of aliens within the United 19 States,” and that “the breadth of th[o]se laws illustrates an 20 overwhelmingly dominant federal interest in the field.” 21 accord Lozano v. City of Hazleton, 2013 WL 3855549, at *14 (3rd 22 Cir. July 26, 2013) (internal quotation marks and citation 23 omitted) (“We agree with the Eleventh Circuit and other courts 24 that have held that the federal government has clearly expressed 25 more than a peripheral concern with the entry, movement, and 26 residence of aliens within the United States and the breadth of 27 these 28 interest in the field.”) laws illustrates an overwhelmingly - 33 - dominant Id.; federal Furthermore, like the “federal registration scheme” in 1 2 Arizona, the Eleventh Circuit held that “Congress has provided 3 a ‘full set of standards’ to govern the unlawful transport and 4 movement of aliens.” Id. (quoting Arizona, 132 S.Ct., at 2502). 5 Continuing, and again relying upon Arizona, the GLAHR Court 6 found 7 penalties for these actions undertaken within the borders of the 8 United States, and a state’s attempt to intrude into this area 9 is that “[t]he prohibited INA because comprehensively Congress has addresses adopted a criminal calibrated Id. (citing 10 framework within the INA to address this issue.” 11 Arizona, 132 S.Ct., at 2502–03). 12 justification for finding that the Georgia statute was field 13 preempted was that Congress did “not sanction[] concurrent state 14 legislation ‘on the subject covered by the challenged state 15 law.’” Id. at 1265 (quoting De Canas, 424 U.S., at 363). The GLAHR Court’s final 16 Adopting wholesale GLAHR’s reasoning, the Eleventh Circuit 17 in Alabama, likewise held that “Alabama is prohibited from 18 enacting concurrent state legislation in this field of federal 19 concern[,]” 20 transportation, 21 present 22 omitted); see also U.S. v. South Carolina, 720 F.3d 518, 531 23 (4th Cir. 2013) (quoting Arizona, 132 S.Ct. 2501) (“find[ing] 24 the Eleventh Circuit’s reasoning 25 that state statutes making it a felony to transport, move, 26 conceal, harbor, etc. unlawful aliens were “field preempted 27 because the vast array of federal laws and regulations on this 28 subject . . . , is ‘so pervasive . . . that Congress left no Alabama, 691 concealment, aliens[.]” Id. at F.3d and 1285 - 34 - at 1287, inducement (internal i.e., of “the unlawfully quotation marks persuasive[,]” and holding 1 room for the States 2 significant here is that much like the Policy, Alabama also 3 specifically criminalized “conspiring to transport an unlawfully 4 present 5 transported[.]” 6 South Carolina likewise made “it a state felony for[,]” among 7 other things, “an unlawfully present person to allow himself or 8 herself to be ‘transported or moved’ within the state[.]” South 9 Carolina, 720 F.3d at 529. alien, to supplement including an it[]’”). alien’s Particularly conspiracy to be Alabama, 691 F.3d at 1285 (emphasis added). The striking similarity between the 10 Policy and the Alabama and South Carolina statutes, which the 11 Eleventh and Fourth Circuits respectively found were field 12 preempted, 13 Arizona and its progeny are not germane to the field preemption 14 herein. further erodes the defendants’ contention that 15 The defendants also attempt to distinguish the GLAHR line 16 of cases because, in their view, unlike the Policy, those 17 various state statutes “did not involve . . . criminal human 18 smuggling . . . per se[;]” nor did they prohibit human smuggling 19 “for profit or commercial purposes[]” as does A.R.S.§ 13- 20 2319(A). Defs.’ Reply (Doc. 132) at 3:17-19, ¶ C. These claimed 21 distinctions are, once again, unavailing. 22 those state statutes explicitly mention “human smuggling,” or 23 even 24 unauthorized or illegal aliens. 25 to see how those statutes could be read to exclude smuggling, 26 which 27 Furthermore, pursuant to the Policy, an unlawfully present alien 28 who is being transported is subject to arrest and prosecution. “smuggling[,]” necessarily has but a each To be sure, none of criminalizes transporting The court is thus hard pressed transport - 35 - or movement component. 1 That proscribed conduct fits within the INA’s “comprehensive 2 framework to penalize the transportation, concealment, and 3 inducement of unlawfully present aliens[]” as defined in GLAHR, 4 691 F.3d at 1263 (emphasis added). 5 The defendants fare no better with their argument that it 6 was the breadth of the state statutes in GLAHR and its progeny 7 which led to the conclusion that the federal government had 8 fully occupied the field of alien transportation and movement 9 within the United States. The defendants’ have it backwards. 10 When the issue is field preemption, the focus is on the breadth 11 of the federal statutes purporting to occupy a given field, not 12 upon the breadth of the challenged state statute. 13 691 at 1264 (“Based on the breadth of federal regulation,” the 14 Arizona Court held that the federal government occupied the 15 field of alien registration.) 16 neither the Eleventh Circuit in GLAHR and Alabama, nor the 17 Arizona District Court in Valle del Sol, considered the breadth 18 of 19 preemption. 20 the challenged statutes as See GLAHR, Consistent with that view, a basis for finding field Equally unavailing is the defendants’ contention that the 21 Policy is not field 22 harmonious with the federal law[.]” 23 7:18 (emphasis added). 24 federal crime, as more fully discussed next in connection with 25 conflict 26 unlawfully present aliens or non-smuggling migrants to transport 27 themselves and no one else, however, the Policy is criminalizing 28 mere unlawful presence. preemption. preempted because it is “completely Defs.’ Resp. (Doc. 128) at Unlawful presence, alone, is not a By making it a state felony for It thus strains credulity to insist, - 36 - 1 as do the defendants, that the Policy is “completely harmonious 2 with federal law.” 3 Policy 4 standards[,]” as in Arizona, 132 S.Ct., at 2502, such an 5 argument “ignore[s] the basic premise of field preemption --- 6 that States may not enter, in any respect, an area that the 7 Federal Government has reserved for itself[,]” such as the 8 transportation 9 unlawfully present aliens. could See id. somehow and Even assuming arguendo that the be deemed movement within “parallel the to United federal States of See id. (emphasis added). Moving beyond this primarily textual analysis of § 1324 to 10 11 its history reveals that Congress’ purpose was one of 12 “continuing efforts to strengthen [that] federal anti-smuggling 13 law by broadening the scope of proscribed conduct.” 14 v. Sanchez-Vargas, 878 F.2d 1163, 1169 (9th Cir. 1989). Tracing 15 the evolution of that statute and its predecessors, the Ninth 16 Circuit found that “[f]rom its genesis as a statute prohibiting 17 only the bringing in of aliens, § 1324(a)(1) now presents a 18 single comprehensive ‘definition’ of the federal crime of alien 19 smuggling -- one which tracks smuggling and related activities 20 from their earliest manifestations (inducing illegal entry and 21 bringing in aliens) to continued operation and presence within 22 the United States (transporting and harboring or concealing 23 aliens).” Id. 24 the INA, Congress has fully occupied the field of transporting, 25 moving, concealing, 26 aliens. Moreover, because this field necessarily encompasses 27 the conduct which the Policy proscribes, i.e., making it a state 28 felony for unlawfully present aliens or non-smuggling migrants See U.S. This history reinforces the view that, through harboring, - 37 - etc. of unlawfully present 1 to conspire to transport themselves, it, too, is field preempted 2 by the INA. 3 this court to depart from the Eleventh Circuit’s reasoning and 4 conclusion in GLAHR, 691 F.3d 1250, particularly in light of 5 section 1324's history. In sum, none of the defendants’ arguments persuade 6 Having found that the Policy is field preempted by the 7 INA’s comprehensive framework to penalize the transportation, 8 concealment, and inducement of unlawfully present aliens, there 9 is no need to consider the second prong of the plaintiffs’ field 10 preemption argument, that is, that the Policy impermissibly 11 “circumvents Congress’[] framework for federal-local cooperation 12 in regulating immigration.” 13 (emphasis omitted). 14 judgment as to plaintiffs on the issue of field preemption, and 15 denies the defendants’ summary judgment motion in that regard. 16 Resolution of the field preemption issue in plaintiffs’ Pls.’ SJM (Doc. 121) at 11:16-17 Accordingly, the court grants summary 17 favor is dispositive of their preemption claim. 18 the court will also address, as did the parties, the issue of 19 conflict preemption. 20 First, the plaintiffs’ conflict preemption argument is equally 21 if not more compelling than its field preemption argument. 22 Second, 23 conflict preemption are not “rigidly distinct.” See Crosby, 530 24 U.S., at 372 n. 2 (internal quotation marks and citation 25 omitted). 26 in this case, because 27 extent of any conflict with a federal statute[,]” the prudent 28 course is to consider the possibility of conflict preemption proceeding Nevertheless, The court will do so for three reasons. in this way recognizes that field and Finally, even if Congress had not occupied the field “state law is naturally preempted to the - 38 - 1 here as well. 2. 2 See id. at 372 (footnote and citations omitted). Conflict Preemption 3 Keeping in mind that an “[i]mplied preemption analysis does 4 not justify a freewheeling judicial inquiry into whether a state 5 statute is in tension with federal objectives[,]” the court will 6 next consider whether the Policy conflicts with federal law. 7 See Chamber of Commerce of U.S. v. Whiting, 563 U.S. ––––, 131 8 S.Ct. 1968, 1985, 179 L.Ed.2d 1031 (2011) (internal quotation 9 marks and citation omitted). Distilling the parties’ conflict 10 preemption arguments to their essence, there are two core 11 issues: (1) whether the Policy actually conflicts with federal 12 law; and (2) whether the Policy “‘stands as an obstacle to the 13 accomplishment and execution of the full purposes and objectives 14 of Congress[.]’” 15 Hines, 312 U.S., at 67, 61 S.Ct. 399). a. 16 See Arizona, 132 S.Ct., at 2501 (quoting The Policy does both. Actual Conflict 17 Contending that the Policy is not conflict preempted, the 18 defendants again claim that it is “harmonious” with federal law. 19 See 20 overlooking a critical aspect of the Policy, however. The Policy 21 effectively criminalizes conduct which federal law does not. 22 More specifically, by deeming it a felony for unlawfully present 23 aliens 24 “criminalizing unlawful presence, a stance plainly at odds with 25 federal law.”16 Defs.’ to SJM (Doc. conspire to 119) at transport 11:5. The themselves, defendants the Policy See South Carolina, 720 F.3d at 530. are is Indeed, 26 16 27 28 The court agrees with the general proposition that, standing alone, A.R.S. § 13-2319 does not “criminalize[] unlawful presence.” See Melendres v. Arpaio, 2013 WL 2997173, at *76 (D.Ariz. May 24, 2013). However, the Policy, which is based upon Arizona’s human smuggling statute - 39 - 1 the Ninth Circuit has “long made clear that, unlike illegal 2 entry, mere unauthorized presence in the United States is not a 3 crime.” 4 (citing, inter alia, Martinez–Medina v. Holder, 673 F.3d 1029, 5 1036 (9th Cir. 2011) (“Nor is there any other federal criminal 6 statute making unlawful presence in the United States, alone, a 7 federal crime, although an alien’s willful failure to register 8 his presence in the United States when required to do so is a 9 crime, and other criminal statutes may be applicable in a Melendres v. Arpaio, 695 F.3d 990, 1000 (9th Cir. 2012) 10 particular circumstance.” (citation omitted)). 11 Arizona, “[t]he Supreme Court recently affirmed that, ‘[a]s a 12 general rule, it is not a crime for a removable alien to remain 13 present in the United States.’” Id. (quoting Arizona, 132 S.Ct., 14 at 2505). Thus, it defies logic to suggest, as the defendants 15 do, the 16 criminalizing conduct which Congress has chosen not to, is 17 harmonious with federal law. 18 that Policy, which contravenes Moreover, in federal law by There is another way in which the Policy conflicts with 19 federal law. Among other activities, Alabama criminalized “an 20 alien’s conspiracy to be transported[.]” Alabama, 691 F.3d at 21 1288 (internal quotation marks and citation omitted). 22 statute “appear[ed]” to the Fourth Circuit “to prohibit an 23 unlawfully present alien from even agreeing to be a passenger in 24 a vehicle.” 25 “co-exist” with the federal smuggling statute, “as unlawfully 26 present Id. aliens That The Court held that that statute could not who are transported ‘are not criminally 27 28 and its conspiracy statute, discussed above. does criminalize unlawful presence, as fully - 40 - 1 responsible for smuggling under 8 U.S.C. § 1324[.]’” Id. 2 (quoting United States v. Hernandez-Rodriguez, 975 F.2d 622, 626 3 (9th Cir. 1992)). 4 “appears to prohibit an unlawfully present alien even from 5 agreeing to be a passenger in a vehicle[,]” the court finds that 6 it, too, cannot “co-exist with § 1324(a).” See id. Because the Policy at issue herein likewise The Policy and federal law conflict in another way, as the 7 8 plaintiffs point out. The federal crime of alien smuggling 9 includes transporting or moving an illegal alien within the 10 United States. 11 requires 12 violation of law,’ meaning that the defendants moved the alien 13 ‘in order to help him or her to remain in the United States 14 illegally.’” United States v. Aguilar-Reyes, 2013 WL 3829489, at 15 *2 (9th Cir. July 28, 2013) (quoting Ninth Circuit Model Criminal 16 Jury 17 smuggling statute requires that the person transporting or 18 moving 19 person is an alien, and that the smuggling be for “profit or 20 commercial purpose.” 21 neither 22 furtherance” element of the federal statute. 23 Policy “penalize[s] persons whom the narrower federal statute 24 does not.” that 8 U.S.C. § 1324(a)(1)(A)(ii). “the Instructions § smuggling 9.2 be (2010)). ‘in In That offense furtherance contrast, of such Arizona’s “knows or has reason to know” that the transported the § A.R.S. §§ 13-2319(F)(3) and (A). 13-2319 nor the Policy include the Thus, “in As a result, the Pls.’ SJM (Doc. 121) at 17:7-10. 25 Not only does the Policy substantively conflict with federal 26 law, but it also conflicts from an operational standpoint. 27 Indeed, despite the defendants’ insistence to the contrary, 28 there is record proof of an actual conflict. - 41 - The defendants 1 admit that the MCSO has “arrested at least 1,800 non-smugglers 2 for conspiring to violate § 13-2319[.] Pls.’ SOF (Doc. 121-1) at 3 3:27-28, ¶ 3 (citation omitted); 4 3:15, ¶ 3. 5 “prosecuted 1,357 non-smugglers for conspiracy to violate § 13- 6 2319.” 7 (Doc. 129) at 3:16, ¶ 4. 8 blanket assertion that plaintiffs have not offered any evidence 9 of an actual conflict between the Policy and federal immigration Defs.’ Resp. SOF (Doc. 129) at The defendants further admit that the MCAO has Id. at 4:5-6, ¶ 4 (citation omitted); Defs.’ Resp. SOF The foregoing belies the defendants’ See Defs.’ SJM (Doc. 119) at 10:23-25 (“[T]here is no 10 law. 11 evidence from the Policy’s nearly seven years of history that 12 there has been any conflict between federal immigration law, 13 . . . , and the Policy.”) 14 “criminalizes actions that Congress has, as a policy choice, 15 decided are a civil matter[,]” it is hard to imagine a more 16 blatant conflict than that. 17 530. 18 credence to the defendants’ argument that there is no “clear 19 proof of conflicts between federal law” and the Policy. 20 Defs.’ SJM (Doc. 119) at 10:26-27. What is more, because the Policy See South Carolina, 720 F.3d at Given these various conflicts, 21 b. 22 Turning the court gives no See Obstacle Preemption to obstacle preemption, the Supreme Court has 23 instructed that “[w]hat is a sufficient obstacle is a matter of 24 judgment, to be informed by examining the federal statute as a 25 whole and identifying its purpose and intended effects[.]” 26 Crosby, 530 U.S., at 373. 27 goes by the name of conflicting; contrary to; . . . repugnance; 28 difference; It matters not “whether that obstacle irreconcilability; - 42 - inconsistency; violation; 1 curtailment; . . . interference, or the like.” 2 American Honda Motor Co., Inc., 529 U.S. 861, 873, 120 S.Ct. 3 1918, 146 L.Ed.2d 914 (2000) (internal quotation marks and 4 citations omitted). 5 Viewed from that this the perspective, Policy the “presents an court Geier v. likewise obstacle to is 6 persuaded the 7 execution of the federal statutory scheme and challenges federal 8 supremacy in the realm of immigration.” 9 1265 (footnote omitted). See GLAHR, 691 F.3d at “[M]ere unauthorized presence is not 10 a criminal matter.” Melendres, 695 F.3d at 1002. 11 token though, unauthorized presence is a civil violation that 12 can lead to deportation under federal law. 13 720 F.3d at 530 (citing 8 U.S.C. § 1227) (“Under federal law, 14 unlawfully 15 proceedings.”); see also Gonzales v. City of Peoria, 722 F.2d 16 468, 476–477 (9th Cir. 1983) (explaining that illegal presence is 17 “only 18 Hodgers–Durgin, 199 F.3d 1037). a present civil aliens violation”), are subject overruled on By the same See South Carolina, to civil other removal grounds by 19 Recognizing that important distinction, the Fourth Circuit 20 held that the district court correctly enjoined a South Carolina 21 statute making it “a state felony for an unlawfully present 22 person to allow himself or herself to be ‘transported or moved’ 23 within the state or to be harbored or sheltered to avoid 24 detection.” Id. at 522 (footnote omitted). 25 from Arizona, the Court explained: 26 27 28 Borrowing heavily ‘A principal feature of the removal system is the broad discretion exercised by immigration officials.’ Arizona, 132 S.Ct. at 2499. This discretion is necessary because it ‘involves policy choices that bear - 43 - on this Nation’s international relations.’ Id. The State, by criminalizing what Congress has deemed a civil offense and entrusted to the discretion of the executive branch, is ‘pursu[ing] policies that undermine federal law.’ Id. at 2510. 1 2 3 4 5 Id. at 530. Based upon that rationale, the Fourth Circuit held 6 that certain sections of South Carolina’s immigration law were 7 “conflict preempted because they stand as an obstacle to the 8 execution of the federal removal system and interfere with the 9 discretion entrusted to federal immigration officials.” Id. 10 Simply put, the Fourth Circuit held that federal immigration 11 law preempted certain state statutes “because they criminalize 12 actions that Congress has, as a policy choice, decided are a 13 civil matter.” 14 applies 15 criminalizes 16 Congress has determined is a civil violation. 17 Put with Id. The South Carolina Court’s reasoning equal force conduct, an differently, the here, alien’s Policy where the unlawful “creates Policy also presence, that a new crime 18 unparalleled in the federal scheme.” See GLAHR, 691 F.3d at 19 1266. 20 aliens, or non-smuggling migrants, to conspire to transport 21 themselves, 22 Alabama, the Policy is “an impermissible ‘complement’ to the INA 23 that is inconsistent with Congress’[] objective of creating a 24 comprehensive scheme governing the movement of aliens within the 25 United States.” 26 U.S., at 66-67, 61 S.Ct., at 404). And, by making it a felony for unlawfully present much like the statutes at issue in GLAHR and See GLAHR, 691 F.3d at 1266 (quoting Hines, 312 27 Moreover, as in Alabama, the Policy “undermines the intent 28 of Congress to confer discretion on the Executive Branch in - 44 - 1 matters concerning immigration.” See Alabama, 691 F.3d at 1287. 2 Congress 3 authority under the federal smuggling statute. 4 for such crimes, but not prosecute because section 1324 crimes 5 are subject to prosecution in federal court. 6 § 7 immigration crimes to federal court, Congress limited the power 8 to 9 Attorney.” 1329. pursue granted Thus local “[b]y those law enforcement confining cases to the the officials limited They may arrest See 8 U.S.C. prosecution appropriate of United federal States See GLAHR, 691 F.3d at 1265 (citations omitted). 10 The Policy, which makes criminal, what Congress has deemed to be 11 a civil violation, is “not conditioned on respect for the 12 federal concerns or the priorities that Congress has explicitly 13 granted executive agencies the authority to establish.” See id. 14 (citation omitted).17 15 In a similar vein, local arrest, detainment and prosecution 16 of unlawfully present aliens, or non-smuggling migrants, for 17 conspiring 18 “unconstrained 19 application of the INA.” 20 because, as the Eleventh Circuit soundly reasoned: to transport by federal See themselves law under threaten[s] the the GLAHR, 691 F.3d at 1266. Policy uniform That is Each time a state enacts its own parallel 21 22 17 23 24 25 26 27 28 Maintaining that the Policy does not create an obstacle to compliance with federal law, the defendants assert that “states may prosecute an act which constitutes both a federal and state offense under the state’s police power without impinging on federal jurisdiction.” Defs.’ SJM (Doc. 119) at 11:10-11 (citation omitted) (emphasis added). Of course, in making this assertion, defendants wholly disregard that the “state offense” which the Policy proscribes is not a federal offense. Thus, the defendants cannot avoid a finding of conflict preemption by invoking the state’s police power. See Charleston & W. Carolina Ry. Co. v. Varnville Furniture Co., 237 U.S. 597, 604, 35 S.Ct. 715, 717, 59 L.Ed. 1137 (1915) (“The legislation is not saved by calling it an exercise of the police power[.]”) - 45 - to the INA, the federal government loses ‘control over enforcement’ of the INA, thereby ‘further detract[ing] from the integrated scheme of regulation created by Congress.’ 1 2 3 Id. (quoting Wis. Dep't of Indus., Labor & Human Relations v. 4 Gould, Inc., 475 U.S. 282, 288–89, 106 S.Ct. 1057, 1062, 89 5 L.Ed.2d 223 (1986) (quotation marks omitted)) (other citations 6 omitted). “Given the federal primacy in the field of enforcing 7 prohibitions on the transportation” and movement, among other 8 activities, of “unlawfully present aliens,” the court concurs 9 with the Eleventh Circuit that “the prospect of fifty individual 10 attempts to regulate immigration-related matters cautions 11 against permitting states to intrude into this area of dominant 12 federal concern.” These various conflicts Id. between the 13 Policy and federal law strengthen the court’s earlier finding of 14 field preemption. See Arizona, 132 S.Ct., at 2503 (finding that 15 “specific conflicts . . . underscore[d] the reason for field 16 preemption[]”). 17 Given that the Policy actually conflicts with federal 18 immigration law, and that it “stands as an obstacle to the 19 accomplishment and execution of the full purposes and objectives 20 of Congress[,]” Arizona, 132 S.Ct., at 2501 (internal quotation 21 marks and citation omitted), the plaintiffs have met the “high 22 threshold” necessary to support a finding of conflict 23 preemption. See Whiting, 131 S.Ct., at 1985 (internal quotation 24 marks and citation omitted). To conclude on the issue of 25 conflict preemption, the court grants summary judgment in favor 26 of the plaintiffs, and denies the defendants’ summary judgment 27 in this regard. 28 - 46 - 1 C. Dismissal of Remaining Claims 2 The plaintiffs are “reced[ing]” or backing away from “their 3 remaining claims[,]” that is, their claims for unlawful search 4 and seizure, denial of due process and a pendent state claim for 5 violations of A.R.S. §§ 13-2319 and 13-1003. 6 126) at 16:27-28, n. 5. 7 dismissal of these claims pursuant to Fed.R.Civ.P. 41(a)(2). 8 However, they do not specify whether they are seeking dismissal 9 with or without Pls.’ Resp. (Doc. The plaintiffs expressly seek voluntary prejudice, “implicitly 10 determination by th[is] district court.” 11 312 F.3d 404, accepting either See Hargis v. Foster, 412 (9th Cir. 2002). 12 If an order granting voluntary dismissal in accordance with 13 Rule 41(2) is silent, that Rule presumes dismissal without 14 prejudice. 15 otherwise, a dismissal under this paragraph (2) is without 16 prejudice.”) That said, “‘[t]he ‘broad grant of discretion’ that 17 Federal Rule of Civil Procedure 41(a)(2) vests in the district 18 court to dismiss ‘on terms that the court considers proper’ 19 ‘does not contain a preference for one kind of dismissal or 20 another.’” 21 Auction Corp., 2009 WL 764529, at *1 (C.D.Cal. 2009) (quoting 22 Hargis, 312 F.3d at 412; and Fed.R.Civ.P. 41(a)(2)). 23 th[is] district court has discretion as to whether to grant a 24 voluntary dismissal pursuant to Federal Rule of Civil Procedure 25 41(a)(2) with or without prejudice.” 26 312 F.3d at 412). Fed.R.Civ.P. 41(2) (“Unless Real Estate Disposition Corp. the order states v. National Home “As such, See id. (citing Hargis, 27 The defendants do not object to the dismissal of the three 28 claims just identified, but from their standpoint that dismissal - 47 - 1 should be “with prejudice.” 2 (emphasis in original). 3 out that the “[p]laintiffs have had sufficient time to develop 4 an evidentiary record to present genuine issues of material fact 5 precluding summary judgment and to substantively respond to” 6 defendants’ summary judgment motion on the three non-preemption 7 claims. As justification, the defendants point Id. at 1:27-2:1. The defendants’ position is well-taken. 8 9 Defs.’ Reply (Doc. 132) at 1:27 In addition, the defendants should not have the cloud of future litigation over 10 the 11 deliberate 12 Moreover, the 13 granting their 14 circumstances, the court, in the exercise of its discretion, 15 dismisses with prejudice the FAC’s second, third and fourth 16 claims. 17 II. 18 other claims choice when, to apparently, pursue plaintiffs request only have not without the plaintiffs the preemption provided any prejudice. made a claim. reason Under for these Class Certification The plaintiffs are seeking to certify two classes. The 19 first they define as “[a]ll individuals who are - . . stopped, 20 detained, arrested, incarcerated, prosecuted, or penalized for 21 conspiring to transport themselves, and themselves only, in 22 violation of Ariz. Rev. Stat. § 13-2319[] [“the individual 23 class”][.]” 24 (emphasis added). Alternatively, the plaintiffs are seeking to 25 certify a class of “[a]ll individuals who . . . pay taxes to 26 Maricopa County and object to the use of county tax revenues to 27 stop, 28 individuals Class Certification Motion (Doc. 122) at 5:26-28 detain, arrest, for incarcerate, conspiring to - 48 - prosecute, transport or penalize themselves, and 1 themselves only, in violation of Ariz. Rev. Stat. § 13-2319 2 [“the taxpayer class”].” 3 oppose certification of both. 4 Id. at 5:26 and 6:2-3. The defendants Rule 23 “give[s] the district court broad discretion over 5 certification 6 Corp., 655 F.3d 1013, 1019 (9th Cir. 2011). 7 certification remains “‘an exception to the usual rule that 8 litigation is conducted by and on behalf of the individual named 9 parties only.’” Comcast Corp. v. Behrend, 569 U.S. ––––, 133 10 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013) (quoting Califano v. 11 Yamasaki, 442 U.S. 682, 700–701, 99 S.Ct. 2545, 61 L.Ed.2d 176 12 (1979)). “[T]o justify a departure from that rule, a class 13 representative must be part of the class and possess the same 14 interest and suffer the same injury as the class members.” 15 Wal–Mart Stores, Inc. v. Dukes, 564 U.S. ----, 131 S.Ct. 2541, 16 2550, 17 citations omitted) (emphasis added). 180 of class L.Ed.2d 374 actions[.]” Stearns (2011)(internal v. Ticketmaster However, class quotation marks and 18 Before delving into the parties’ contentions as to each of 19 the Rule 23 factors, there is a preliminary, dispositive issue 20 with respect to the first proposed class. 21 defendants contend that because none of the named plaintiffs 22 have been stopped, detained, arrested, prosecuted, etc. in 23 accordance with the Policy, they are not members of the proposed 24 first 25 thereof. 26 1367354, 27 Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 7 L.Ed.2d 512 28 (1962)) (“[T]he named representative must be a member of the class, and so cannot The court agrees. at *3 (D.Ariz. serve as Essentially, the class representatives See Juvera v. Salcido, 2013 WL April - 49 - 4, 2013) (citing Bailey v. 1 class.”) 2 Although the defendants did not mention it, there is another 3 compelling reason for not certifying the first proposed class. 4 That 5 requested relief here is identical. Basically, both classes are 6 seeking: (1) a declaration that federal law preempts the Policy; 7 and (2) an injunction permanently enjoining the defendants from 8 taking any further action under the Policy. 9 foregoing, if the court finds that class certification is proper is because, regardless of the class definition, the In light of the 10 as to the proposed alternative class 11 plaintiffs will recover complete relief, obviating the need for 12 certification of the first proposed class. 13 thus, proceed to the issue of whether the plaintiffs have met 14 their 15 compliance’ with Rule 23.” 16 (quoting Wal-Mart, 131 S.Ct., at 2551-2552). 17 “A burden party of “‘affirmatively seeking class – the taxpayers – the The court will, demonstrat[ing] . . . See Comcast, 133 S.Ct., at 1432 certification must satisfy the 18 requirements of Federal Rule of Civil Procedure 23(a) and the 19 requirements of at least one of the categories under Rule 20 23(b).” 21 *2 (Sept. 3, 2013). 22 seeking class certification pursuant to Rule 23(b)(2) premised 23 on the defendants having “acted or refused to act on grounds 24 that apply generally to the class, so that final injunctive 25 relief 26 requesting the class as a whole[.]” Fed.R.Civ.P. 23(b)(2). Wang v. Chinese Daily News, Inc., 2013 WL 4712728, at or 27 A. 28 “‘Rule In the present case, the plaintiffs are corresponding declaratory relief is appropriate Rule 23(a) 23(a) ensures that - 50 - the named plaintiffs are 1 appropriate representatives of the class whose claims they wish 2 to litigate.’” Wang, 2013 WL 4712728, at *2 (quoting Wal–Mart 3 Stores, Inc. v. Dukes, 564 U.S. ----, 131 S.Ct. 2541, 2550, 180 4 L.Ed.2d 374 (2011)). Rule 23(a) provides: One or more members of a class may sue or be sued as representative parties on behalf of all members only if: 5 6 (1) the class is so numerous that joinder of all members is impracticable; 7 8 (2) there are questions of law or fact common to the class; 9 (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and 10 11 (4) the representative parties will fairly and adequately protect the interests of the class. 12 13 14 Fed.R.Civ.P. 23(a). Succinctly put, that Rule “requires a party 15 seeking 16 numerosity, 17 representation.” 18 omitted). class certification commonality, Wang, to satisfy typicality, 2013 WL four requirements: and adequacy 4712728, at *2 of (citation 19 The defendants readily agree, and the court so finds, that 20 the first two Rule 23(a) elements –- numerosity and commonality 21 –– are satisfied in this case. 22 2:24-25 (“Based on research and review of Plaintiffs’ Motion, 23 Defendants agree that this case satisfied the numerosity and 24 impracticability element required for a class action.”); and at 25 3:8-10 26 Plaintiffs’ Motion, Defendants agree that this case raises 27 issues of both law and fact that are common to the members of 28 the proposed class.”) The parties are at odds, however, as to (“Based on the See Defs.’ Resp. (Doc. 127) foregoing - 51 - authority and review of 1 whether the plaintiffs can satisfy Rule 23(a)’s typicality and 2 adequacy requirements. a. 3 Typicality 4 The plaintiffs assert that because they have satisfied the 5 commonality requirement, they have also satisfied the typicality 6 requirement. The defendants counter by repeating their argument 7 that 8 defendants thus imply that that purported lack of standing means 9 that the claims of these plaintiffs are not typical of the the named taxpayer plaintiffs lack standing. The 10 taxpayer class. 11 to why the plaintiffs have not shown typicality as to the 12 proposed taxpayer class. 13 that the taxpayer plaintiffs Haglund and Lujan do have standing 14 - a finding which undermines this defense argument. 15 more, “[i]n a class action, standing is satisfied if at least 16 one named plaintiff meets the requirements.” 17 4734032, at *4 (internal quotation marks and citation omitted). 18 Here, as this court has found, two of the named plaintiffs have 19 standing. 20 simply 21 certification. has This is the only reason the defendants offer as Of course, the court has already found What is Haro, 2013 WL Thus, the defendants’ lack of standing argument no place in deciding whether to grant class Typicality, like commonality, “serve[s] as [a] guidepost[] 22 23 for determining whether under 24 maintenance of a class action is economical and whether the 25 named plaintiff’s claim and the class claims are so interrelated 26 that the interests of the class members will be fairly and 27 adequately protected in their absence.” Wal-Mart, 131 S.Ct., at 28 2551, n. 5 (quoting General Telephone Co. of Southwest v. - 52 - the particular circumstances 1 Falcon, 457 U.S. 147, 157, n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 2 (1982)). “The test of typicality is whether other members have 3 the same or similar injury, whether the action is based on 4 conduct which is not unique to the named plaintiffs, and whether 5 other class members have been injured by the same course of 6 conduct.” 7 (2011) (internal citation and quotation marks omitted). 8 That test is easily met in the present case. 9 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 Plaintiffs Haglund and Lujan and the putative taxpayer class members claim 10 the same injury and object to the same conduct. 11 plaintiffs, and the class which they are seeking to represent, 12 allege misuse of their Maricopa County taxes to fund all aspects 13 of the Policy. 14 is 15 enforcement of the Policy, which federal law preempts. 16 obviously other taxpayer class members have been injured by the 17 use of their Maricopa County taxes to fund the Policy. 18 court 19 standards” of typicality. 20 F.3d 1011, 1026 (9th Cir. 1998). not b. 21 Further, this action is based on conduct which unique thus The taxpayer to finds the that named taxpayer plaintiffs have plaintiffs, met the i.e., And, The “permissive See Hanlon v. Chrysler Corp., 150 Adequacy Rule 23(a)(4) “satisf[ies] due process concerns [ ]” in 22 23 that “absent class members 24 representation before entry of a judgment which binds them.” 25 Hanlon, 150 F.3d at 1020 (citing Hansberry v. Lee, 311 U.S. 32, 26 42–43, 61 S.Ct. 115, 85 L.Ed. 22 (1940)). 27 “raises concerns about the competency of class counsel and 28 conflicts of interest.” Wal-Mart, 131 S.Ct., at 2551 n. 5 - 53 - must be afforded adequate This requirement thus 1 (citation and internal quotation marks omitted). 2 “[a]dequate representation depends on, among other factors, an 3 absence of antagonism between representatives and absentees, and 4 a sharing of interest between representatives and absentees.” 5 Ellis, 657 F.3d at 985 (citation omitted). Consequently, “[t]o 6 determine whether named plaintiffs will adequately represent a 7 class, courts must resolve two questions: ‘(1) do the named 8 plaintiffs and their counsel have any conflicts of interest with 9 other class members and (2) will the named plaintiffs and their 10 counsel prosecute the action vigorously on 11 Therefore, behalf of the class?’” Id. (quoting Hanlon, 150 F.3d at 1020). 12 In addition to the foregoing, Rule 23(g) articulates four 13 criteria that a court must consider in evaluating the adequacy 14 of proposed class counsel. 15 Those mandatory criteria are: (i) the work counsel has done in identifying or investigating potential claims in the action; 16 17 (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; 18 (iii) counsel’s knowledge of the applicable law; and 19 20 (iv) the resources that representing the class[.] counsel will commit to 21 Fed.R.Civ.P. 23(g)(1)(A)(i)-(iv) (emphasis added). In addition, 22 the court “may consider any other matter pertinent to counsel’s 23 ability to fairly and adequately represent the interests of the 24 class[.]” Fed.R.Civ.P.23(g)(1)(B). 25 necessarily be determinative in a given case.” Fed.R.Civ.P. 26 23(g) Advisory Committee note. 27 28 “No single factor should Here, the parties’ adequacy of representation arguments are lacking, but for different reasons. - 54 - The defendants did not 1 address the critical issue of potential conflicts and vigorous 2 prosecution. Instead, 3 argument, defendants 4 Plaintiffs cannot fairly and adequately protect the interests of 5 either one of the two alternative proposed classes.” 6 Resp. (Doc. 127) at 5:4-5. 7 the in reliance simply upon their declare that typicality “the named Defs.’ To be sure, the typicality requirement does “tend to merge 8 with the adequacy-of-representation requirement[.]” 9 131 S.Ct., at 2551 n. 5 (citation and internal quotation marks 10 omitted). In the present case, however, because the defendants’ 11 typicality 12 standing, it has no bearing on the adequacy of representation. 13 Given 14 typicality argument is misplaced. 15 discussion of the conflict of interest and vigorous prosecution 16 issues is perfunctory, to say the least, as is their discussion 17 of the Rule 23(g). 18 argument this context, attacked the only the defendants’ taxpayer reliance Wal-Mart, plaintiffs’ upon their Furthermore, the plaintiffs’ Despite these shortcomings, the court concludes that the 19 plaintiffs have satisfied the adequacy of representation 20 requirement. 21 any claimed conflicts of interest, but the court can perceive of 22 none. 23 the named plaintiffs and their counsel are nearly identical in 24 every way to those of the putative taxpayer class members. 25 Furthermore, 26 litigation, 27 plaintiffs’ counsel is evident from, among other things, 28 extensive discovery, motion practice, and an appeal to the Ninth Not only have the defendants failed to point to As should be abundantly clear by now, the interests of during the the vigorous nearly seven prosecution - 55 - year of course this of lawsuit this by the 1 Circuit. The decision by plaintiffs’ counsel to pursue only one 2 of the four claims in the FAC demonstrates that they have 3 seriously engaged in identifying and investigating potential 4 claims as well. See Fed.R.Civ.P. 23(g)(1)(A)(i). 5 The other three Rule 23(g) factors weigh heavily in favor 6 of appointing Peter A. Schey and Carlos Holguín of the Center 7 for 8 Foundation”) as lead counsel for the plaintiffs. 9 profit, public interest foundation routinely litigates on behalf 10 of immigrants and refugees raising constitutional and civil 11 rights issues. Attorney Schey is the President and Executive of 12 the 13 Http:/centerforhumanrights.org/staff (last visited Sept. 15, 14 2013); see also Schey Decl’n (Doc. 21-1) at 8, ¶ 1. 15 Holguín has served as General Counsel with the Foundation since 16 1984. 17 class actions and immigration issues can be discerned from a 18 representative sampling of lawsuits where they have successfully 19 litigated in this area. 20 Project of the Los Angeles Fed’n of Labor v. I.N.S., 306 F.3d 21 842 (9th Cir. 2002) (summary judgment granted in favor of an 22 immigrant class challenging provisions of the Immigration Reform 23 and Control Act of 1986, where attorney Schey served as co-lead 24 counsel); Catholic Social Services, Inc. v. I.N.S., 232 F.3d 25 1139 (9th Cir. 2000) (affirming grant of preliminary injunction 26 to alien class qualified to challenge advance parole policy); 27 and Perez-Olano v. Gonzalez, 248 F.R.D. 248 (C.D.Cal. 2008) 28 (certifying Human Rights Foundation, Id. and and Constitutional has been from Law 1980 Foundation to the (“the This non- present. Attorney The depth of their collective experience in handling a See, e.g., Immigration Assistance nation-wide class - 56 - and granting permanent 1 injunctive and declaratory relief where defendants’ application 2 of a specific consent requirement deprived immigrant migrants in 3 federal custody of the special immigration juvenile provisions 4 of the INA). 5 Through their extensive experience litigating immigration 6 issues, attorneys Schey and Holguín certainly are knowledgeable 7 in the applicable law. 8 that they, and the Foundation in particular, have the necessary 9 resources to devote Finally, there is no reason to doubt to representing the plaintiff class. 10 Therefore, the court finds that Peter Schey and Carlos Holguín 11 satisfy the Rule 23(g) criteria and can adequately represent the 12 plaintiff class certified herein. B. 13 Rule 23(b)(2) Here, where the plaintiffs are seeking an injunction and 14 15 declaratory relief which would “provide relief to each member of 16 the class[,]” and no compensatory damages, they are properly 17 invoking 18 As the Wal-Mart Court instructed, “[t]he key to the (b)(2) class 19 is the indivisible nature of the injunctive or declaratory 20 remedy warranted — the notion that the conduct is such that it 21 can be enjoined or declared unlawful only as to all of the class 22 members or as to none of them.” Id. (internal quotation marks 23 and equitable 24 plaintiffs herein are seeking fits that description. 25 because the plaintiffs have met their burden of satisfying each Rule 23(b)(2).18 citation omitted). See Wal-Mart, 131 S.Ct., at 2557. The relief which the Thus, 26 18 27 28 Because their response does not even mention this aspect of plaintiffs’ class certification motion, the court assumes that the defendants concede that the plaintiffs are properly relying upon Rule 23(b)(2). - 57 - 1 of the Rule 23(a) requirements, and that of Rule 23(b)(2), the 2 court grants their motion for class certification as to the 3 taxpayer plaintiffs. Conclusion 4 5 In light of the foregoing, the court hereby ORDERS that: 6 (1) Defendants’ Motion for Summary Judgment (Doc. 119) is 7 8 9 DENIED; (2) Plaintiffs’ Motion for Summary Judgment (Doc. 121) is GRANTED as to their first claim (“Federal Preemption”); 10 (3) Plaintiffs’ second claim for relief (“Unlawful Search 11 and Seizure; violation of 42 U.S.C. § 1983"), third claim for 12 relief (“Denial of Due Process; violation of 42 U.S.C. § 1983"); 13 and fourth claim for relief (“Pendent State Claim: Violation of 14 Ariz. Rev. Stat. §§ 13-2319 and 13-1003") are DISMISSED WITH 15 PREJUDICE pursuant to Fed.R.Civ.P. 41(a)(2); 16 (4) Plaintiffs’ Motion for Class Certification pursuant to 17 Fed.R.Civ. 23(b)(2) (Doc. 122) is GRANTED in part and DENIED in 18 part. 19 who pay taxes to Maricopa County and object to the use of county 20 tax revenues to stop, detain, arrest, incarcerate, prosecute, or 21 penalize individuals for conspiring to transport themselves, and 22 themselves only, in violation of Ariz. Rev. Stat. § 13-2319.” The court certifies a class defined as: “All individuals 23 IT IS FURTHER ORDERED that: 24 (5) Carlos Holguín and Peter A. Schey of the Center for 25 Human Rights and Constitutional Law, 256 S. Occidental Blvd., 26 Los Angeles, CA 90057; telephone: (213) 388-8693; facsimile: 27 (213) 386-9484; e-mail: crholguin@centerforhumanrights.org, and 28 pschey@centerforhumanrights.org, are appointed as lead class - 58 - 1 counsel for the class certified herein; (6) Plaintiffs are entitled to a declaration that federal 2 3 law preempts and renders invalid 4 the Maricopa County Migrant Policy; (7) Defendants Maricopa County Sheriff Joseph M. Arpaio and 5 6 Maricopa County 7 agents, employees, successors in office, and all other persons 8 who are in active concert or participation with the Maricopa 9 County Sheriff’s Office and the Maricopa County Attorney’s 10 Office, are permanently enjoined from further implementing the 11 Maricopa 12 arresting, and prosecuting persons for conspiring to transport 13 themselves, and no one else, in violation of Ariz. Rev. Stat. 14 § 13-2319; Migrant Attorney William Conspiracy G. Policy Montgomery, including and their detaining, 15 (8) Defendants shall promptly serve Class Counsel with 16 copies of any instructions or guidelines they issue to implement 17 this Order; 18 (9) Prior to bringing any motion or application to clarify, 19 modify or enforce this injunction, the parties, through counsel, 20 shall meet and confer in good faith to resolve their differences; 21 and 22 23 24 (10) The court shall retain continuing jurisdiction to enforce the terms of this Order and Permanent Injunction. Dated this 27th day of September, 2013. 25 26 27 28 - 59 - 1 Copies to all counsel of record 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 - 60 -

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