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

Filing 137

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

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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We Are America, et al.,
Plaintiffs,

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vs.
Maricopa County Board of
Supervisors, et al.

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Defendants.
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No. CIV 06-2816-PHX-RCB
O R D E R

Introduction

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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

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Arizona’s conspiracy statutes, as giving it the prosecutorial

21

discretion to charge and prosecute non-smuggling migrants for

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conspiring to transport themselves within Maricopa County.

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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

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8

An examination of the parties’ statements of facts and

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controverting statements of facts, reveals that there is little

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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).

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“‘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.,

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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,

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1

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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).

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2

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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

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(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

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F.Supp.2d at 1119) (emphasis in original)).
Other

9

objections

are

that

the

proffered

Such

evidence

is

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argumentative or constitutes an improper legal conclusion.

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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.

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(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

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29, 2005.

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document purports to be a letter from former Maricopa County

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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

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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

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then] defendant County Attorney announced that his office would

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prosecute

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migrants — ‘people who are trying to enter into this country’

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and whom, in the legislature’s view, actual smugglers ‘exploit’

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– who agree to pay for their own transport on the theory that

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such migrants have conspired to violate § 13-2319.” Plaintiffs’

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Statement of Facts in Support of Motion for Summary Judgment

not

only

actual

coyotes,

but

also

non-smuggler

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(“Pls.’ SOF”) (Doc. 121-1) at 3:16-21 (citations omitted).

The

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plaintiffs also rely upon the September 29, 2005, document as

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the source of the Policy.

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letter] initiated the . . . MMCP at issue[.]”)

See id. at 3:24-25 (“This [opinion

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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

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unsigned document cannot “serve as an admission by a party

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opponent[]” in the absence of any testimony by either its

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supposed author, non-party Thomas, or its alleged recipient,

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defendant Arpaio. Defendants’ Response to Plaintiffs’ Statement

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of Facts in Support of Plaintiffs’ Motion for Summary Judgment

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and Controverting Statement of Facts (“Defs.’ Resp. SOF”) (Doc.

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129) at 3:13-14, ¶ 2.

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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.
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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.”)

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Circuit has “repeatedly held that unauthenticated documents

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cannot be considered in a motion for summary judgment.”

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285 F.3d at 773.

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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,

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the court will not consider the unsigned September 29, 2005,

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letter due to a lack of foundation.

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For substantially similar reasons, the court also will not

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consider what purports to be “Minutes of the Committee on

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Judiciary re: H.B. 2539, Arizona House of Representatives, 47th

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Legislature, First Regular Session (February 10, 2005).”

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SOF (Doc. 121-1) at 3:14-17.

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intent, the plaintiffs recite from these Minutes several times.

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The Minutes themselves are not part of the record, however; nor

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have they been authenticated in any way.

Pls.’

Attempting to show legislative

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Notwithstanding the parties’ objections, at bottom, the

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undisputed facts pertaining to the pending summary judgment

24

motions

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criminalized human smuggling, making it a class 4 felony for a

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“person to intentionally engage in the smuggling of human beings

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for profit or commercial purpose.”

are

straightforward

and

28
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few.

In

2005,

Arizona

A.R.S. § 13-2319(A)-(C)(1)-

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(2) (Supp. 2010)4.

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human beings” is “transportation, procurement of transportation

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or use of property or real property by a person or an entity

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that knows or has reason to know that the person or persons

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transported or to be transported are not United States citizens,

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permanent resident aliens or persons otherwise lawfully in this

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state or have attempted to enter, entered or remained in the

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United States in violation of law.” A.R.S. § 13–2319(F)(3).

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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

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expressly acknowledge that “[s]ince March of 2006, the [MCAO]

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has reserved the prosecutorial discretion under Arizona law to

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charge and prosecute persons for the state crime of conspiracy

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under A.R.S. § 13-1003 to violate Arizona’s human smuggling

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statute, A.R.S. § 13-2319.”

16

Judgment (“Defs.’ SJM”) (Doc. 119) at 1:27-2:2.

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same lines, the defendants further acknowledge that the MCSO

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“also enforces § 13-1003 as applied to § 13-2319 by arresting

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individuals for, and detaining them under, the criminal charge

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of conspiring to violate Arizona’s human smuggling statute when

21

probable cause exists to do so.” Id. at 2:5-7. Defendants also

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point out that A.R.S. § 13-1006(B) recognizes that a person may

Defendants’ Motion for Summary
Along those

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4

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25
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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).

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-6-

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commit conspiracy to commit an offense, even if that person

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cannot be convicted of the offense itself.5

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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

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(admit).

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1,357 non-smugglers for conspiracy to violate § 13-2319.”

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at 4, ¶ 4 (citation omitted); see also Defs.’ Resp. SOF (Doc.

And, “[a]s of March 2010, the [MCAO] had prosecuted
Id.

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129) at 4, ¶ 4 (admit).

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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.

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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

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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

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federal preemption.

4

to summary judgment on this issue.

5

the Policy is not preempted by federal immigration law, whereas

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the plaintiffs argue that it is preempted.

7

plaintiffs are seeking certification of two alternative classes,

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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

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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: [phone]; facsimile:

27

[phone]; e-mail: [e-mail], and

28

[e-mail], 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 -

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Copies to all counsel of record

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3
4
5
6
7
8
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10
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12
13
14
15
16
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18
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