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)
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 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?