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

Filing 71

ORDER - Based upon the foregoing, the court hereby ORDERS that no later than twenty (20) days from the date hereof the defendants shall file and serve a supplemental brief on the issue of whether this action has become moot. Additionally, within that same time frame defendant Montgomery shall advise the court as to whether or not he is joining in The Maricopa County Defendants' Motion to Dismiss the Claims of the Organizational and Taxpayer Plaintiffs (Doc. 68). IT IS FURTHER ORDERED that a responsive memoranda, if any, as well as a reply memoranda, if any, shall be filed and served and inall ways comply with the Rules of Practice of the United States District Court for the District of Arizona. Signed by Judge Robert C Broomfield on 4/11/11. (LAD)

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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/Somos America, )
Coalition of Arizona, et al. )
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Plaintiffs,
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vs.
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Maricopa County Board of
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Supervisors, et al.
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Defendants.
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No. CIV-06-2816-PHX-RCB
O R D E R

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Currently pending before the court is “The Maricopa County

20 Defendants’ Motion to Dismiss the Claims of the Organizational and
21 Taxpayer Plaintiffs” (Doc. 68), filed in accordance with this
22 court’s prior order.1

It has been approximately three and a half

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In We Are America/Somos America Coalition of Arizona v. Maricopa Co.
Bd. of Supervisors, 386 Fed.Appx. 726 (9th Cir. 2010), the Ninth Circuit affirmed
this court’s dismissal of the claims of six Mexican nationals who were arrested and
detained pursuant to the “Maricopa Migrant Conspiracy Policy,” which is at the
center of this lawsuit.
The Ninth Circuit held that this court “correctly
determined that it lacked jurisdiction under Younger v. Harris, 401 U.S. 37, 91
S.Ct. 746, 27 L.Ed.2d 669 (1971), to consider the claims” of such plaintiffs. Id.
at 727. Finding, however, that this court “erred . . . in concluding that Younger
abstention barred it from considering the organizational and taxpayer claims[,]”
the Ninth Circuit remanded for this court to “determine whether the organizational
and taxpayer plaintiffs have standing to pursue their claims.” Id. This court

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years since the filing of the amended complaint.

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Andrew Thomas, who was originally named as a defendant in his

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official capacity as Maricopa County Attorney, is no longer serving

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in that capacity.

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moot; and if so, this court would lack subject matter jurisdiction.

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The court will, therefore, require supplemental briefing on that

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issue.

Thus, it is possible that this case has become

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Additionally,

Background
The Amended Complaint (“the complaint”) filed on October 12,

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2007, alleges that “defendants have embraced a policy and practice

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to arrest, detain, and punish non-smuggler migrants for conspiring

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to transport themselves through Maricopa County” (“the Policy”).

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Am. Compl. (Doc. 45) at ¶ 1.

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“[d]efendants’ sole legal basis for said policy and practice is an

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ultra vires interpretation of Ariz. Rev. Stat. § 13-2319, a statute

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enacted to impose criminal penalties on professional smugglers who

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transport migrants not authorized to be in the United States under

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federal law.”

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or about September 26, 2007, defendants arrested and detained about

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. . . (27) individuals pursuant to the . . . Policy.”

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¶ 43 (emphasis added).

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Id.

The complaint further alleges that

As the complaint alleges “[m]ost recently, on

The complaint names eight defendants.

Id. at 20,

The first is the

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Maricopa County Board of Supervisors (“the County Board”), which

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allegedly “has acquiesced in, condoned, and through local tax

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revenues financed the adoption and implementation of the . . .

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ordered that “any motions directed to the standing issue” were to be “filed not
later than November 8, 2010.” Doc. 67. Hence, the pending defense motion was
filed. Also in accordance with that order, plaintiffs timely filed and served
their response. No reply was filed though.

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Policy.”

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Fulton Brock, Don Stapley, Andrew Kunasek, Max W. Wilson, and Mary

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Rose Wilcox, as “members” of the County Board, who are being “sued

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in their official capacities[.]”

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is also being sued in his “official capacity[]” as “the Maricopa

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County Sheriff” who, “as such[,] is vested with the legal authority

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and duty to enforce the Arizona Criminal Code, including Ariz. Rev.

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State. § 13-2319.”

Id. at 9, ¶ 16.

Next, the complaint names as defendants

Id. at 9, ¶ 17.

Joseph Arpaio

Id. at 10, ¶ 19.

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The eighth defendant which the complaint names is Andrew

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Thomas, who at the time of filing, was the Maricopa County Attorney

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and “[a]s such” was “responsible for the enforcement of the Arizona

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Criminal Code, including prosecuting violations of Ariz. Rev. Stat.

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§ 13-2319.”

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however, after the resignation of Mr. Thomas, in accordance with

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FED.R.CIV.P. 25(d), Richard M. Romley, serving as Interim Maricopa

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County Attorney, was substituted for defendant Thomas.

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Substitution Order (Doc. 65).

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on November 8, 2010, six days after the Maricopa County Attorney

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election.

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Id. at 9, ¶ 18.

Since the filing of the complaint,

See also

The pending defense motion was filed

Thereafter, on December 16, 2010, Deputy County Attorney White

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filed a “Notice of Name Change and Substitution of Maricopa County

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Attorney,” notifying the court that “William G. Montgomery is now

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the Maricopa County Attorney, and should be substituted for

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Defendant Richard M. Romley.”

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foregoing, the defendants’ motion is brought on behalf of every

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defendant except the Maricopa County Attorney, whether by name or

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position.

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. . .

Doc. at 70:21-22.

Despite the

See Mot. (Doc. 68) at 1:5-6; and 19-23.

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Discussion

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“If the controversy is moot, both the trial and appellate

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courts lack subject matter jurisdiction, see [North Carolina v.]

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Rice, 404 U.S. [244,] 246, 92 S.Ct. 402, [30 L.Ed.2d 413 (1971)],

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and the concomitant ‘power to declare the law’ by deciding the

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claims on the merits.”

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2005).

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controversy as Article III of the United States Constitution

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requires.

In re Burrell, 415 F.3d 994, 998 (9th Cir.

That is because if a case is moot there is no longer a live

Indeed, “Article III requires that a live controversy

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persist throughout all stages of the litigation.”

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Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1129-30 (9th Cir. 2005)

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(emphasis added) (citing Steffel v. Thompson, 415 U.S. 452, 459 n.

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10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (“an actual controversy

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must be extant at all stages of review, not merely at the time the

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complaint is filed”)).

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sponte or at the request of the parties, evaluate the issue[] of

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. . . mootness.”

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Dep’t of Interior, 637 F.Supp.2d 777, 786 (E.D.Cal. 2008) (citing,

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inter alia, Grupo Dataflux v. Atlas Global Group, 541 U.S. 567,

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593, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) (“It is the obligation

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of both district court and counsel to be alert to jurisdictional

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requirements.”))

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See Gator.com

“Hence, the district court must, either sua

San Luis & Delta Mendota Water Authority v. U.S.

Based upon the foregoing, the court hereby ORDERS that no

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later than twenty (20) days from the date hereof the defendants

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shall file and serve a supplemental brief on the issue of whether

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this action has become moot.

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frame defendant Montgomery shall advise the court as to whether or

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not he is joining in “The Maricopa County Defendants’ Motion to

Additionally, within that same time

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Dismiss the Claims of the Organizational and Taxpayer Plaintiffs”

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(Doc. 68).

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IT IS FURTHER ORDERED that a responsive memoranda, if any, as

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well as a reply memoranda, if any, shall be filed and served and in

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all ways comply with the Rules of Practice of the United States

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District Court for the District of Arizona.

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DATED this 11th day of April, 2011.

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Copies to counsel of record

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