United States of America v. Maricopa, County of et al

Filing 54

*Reply to Response to Motion re 40 Cross-Motion for Summary Judgment by Defendants Joseph M Arpaio, Maricopa County Sheriff's Office. (Popolizio, Joseph) *Modified on 4/27/2011, to Reply to Response to Motion and to add 40 , (LSP).

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William R. Jones, Jr., Bar #001481
John T. Masterson, Bar #007447
Joseph J. Popolizio, Bar #017434
JONES, SKELTON & HOCHULI, P.L.C.
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Telephone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants Maricopa County
Sheriff’s Office and Joseph M. Arpaio

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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United States of America,

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Plaintiff,

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v.

Defendants.

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DEFENDANTS’ REPLY IN
SUPPORT OF CROSS-MOTION
FOR SUMMARY JUDGMENT

Maricopa County, Arizona; Maricopa County
Sheriff’s Office; and Joseph M. Arpaio, in his
official capacity as Sheriff of Maricopa
County, Arizona,

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NO. CV10-01878-PHX-GMS

The Maricopa County Sheriff’s Office and Sheriff Joseph M. Arpaio
(collectively “MCSO”) are entitled to summary judgment in this matter. The United
States’ claims and request for injunctive and declaratory relief are now moot in light of
MCSO’s continued cooperation with the Department of Justice (“DOJ”) during its Title
VI investigation, and the DOJ’s virtually unfettered access to MCSO facilities, staff, and
documents. Alternatively, MCSO is entitled to summary judgment because the DOJ’s
Title VI investigation is improperly based on alleged language discrimination, and not
race, color, or national origin.

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I.

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THE CLAIMS FOR INJUNCTIVE AND DECLARATORY RELIEF ARE
MOOT
“A claim is moot if it has lost its character as a present, live controversy.” Am.

Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997). Although the
burden of demonstrating mootness is a heavy one, “[t]hat does not mean that the burden
cannot be borne.” Smith v. University of Washington, 233 F.3d 1188, 1194 (9th Cir.
2001). “The voluntary cessation exception is not absolute.” United States v. Brandau,
578 F.3d 1064, 1068 (9th Cir. 2009). “[E]ven when a cessation is voluntary, mootness can
follow.” Smith, 233 F.3d at 1194. “[T]he voluntariness of the cessation is a factor, rather
than a clincher.” Id. The primary question is whether subsequent events have made it
absolutely clear that the allegedly wrongful behavior – denying access to MCSO staff,
facilities, and documents in connection with the United States’ pending Title VI
investigation – could not reasonably be expected to recur. Friends of the Earth, Inc. v.
Laidlaw Envtl. Svcs., Inc., 528 U.S. 167, 189 (2000). This can be established by showing
that it is “extremely unlikely that [the United States] will file another complaint.”
Rosemere Neighborhood Ass’n v. EPA, 581 F.3d 1169, 1173 (9th Cir. 2009).

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The United States does not dispute the virtually unfettered access that
MCSO provided in October and November 2010. (DSOF 74–97.) This included tours of
six MCSO facilities and informal discussions with MCSO personnel during those tours,
and the production of all requested MCSO policies (1101 pages), documents disclosed in
the Melendres matter (approximately 12,850 pages), 808 pages of documents in support of
its LEP position paper, 11 documents associated with grievance and visitation processes,
and 931 gigabytes of documentation responsive to the United States’ First Request. (Id.)
Since MCSO filed its Motion for Cross-Summary Judgment on December 10, 2010, this
cooperation has continued to the present, and will continue in the future until the
investigation has ended.

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A.

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The DOJ Conducted The 230 Interviews It Requested
The scheduling of inmate and MCSO staff interviews was not particularly

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an easy task. (DSSOF ¶1)1 It required reconciling the schedules of MCSO and DOJ

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lawyers, as well as MCSO personnel. (DSSOF ¶2) At all times, MCSO personnel,

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attorneys, and paralegals facilitated as seamless an interview process as possible under the

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circumstances – something for which the DOJ personnel openly expressed appreciation.

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(DSSOF ¶3) Most importantly, the interviews that the DOJ requested all occurred.

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1.

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As the Title VI investigation moved forward in January 2011, DOJ attorneys

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and jail consultants continued to interview inmates in the Maricopa County Jail system.

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(DSSOF ¶4) To facilitate the DOJ’s inmate interview process, MCSO provided the DOJ

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with inmate rosters from which the DOJ selected interviewees. (DSSOF ¶5) MCSO also

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reserved legal visitation rooms for the DOJ to conduct these interviews. (DSSOF ¶6)

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MCSO did not limit the length or the number of these inmate interviews, nor did it limit

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the availability of any inmate for interview.2 (DSSOF ¶7)

One Hundred Forty-Five (145) Inmate Interviews Have Occurred

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The interview process continued according to DOJ requests and agreed upon

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guidelines with a few understandable limitations stemming from the necessary and

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expected security measures of the jails. (DSSOF ¶11) The DOJ conducted inmate

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interviews outside the presence of MCSO personnel and attorneys as the DOJ requested,

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on dates and times that the DOJ requested. (DSSOF ¶12)

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The DOJ conducted 59 inmate interviews in January 2011 alone. (DSSOF

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¶13)

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furtherance of their Title VI investigation, and all occurred with the assistance and

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Thus, to date, the DOJ has conducted a total of 145 inmate interviews in

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“DSSOF” refers to MCSO’s Supplemental Statement of Facts in Support of
Cross-Motion for Summary Judgment.
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In the infrequent event that an inmate whom the DOJ randomly selected was
unavailable, the unavailability was due to circumstances such as a previously scheduled
medical visit or work shift of the particular inmate. (DSSOF ¶8) On one occasion, on the
morning of January 25, 2011, an inmate at Durango jail appeared for an interview, but
needed a Spanish interpreter. (DSSOF ¶9) As the DOJ did not have an interpreter
present as it had for other interviews, the inmate’s interview was postponed until that
afternoon when an interpreter could be present. (DSSOF ¶10)

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cooperation of MCSO personnel and attorneys. (DSSOF ¶14)

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In January and February 2011, MCSO coordinated the interviews of both

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detention and patrol staff from an array of duty assignments. (DSSOF ¶15) Like the

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inmate interviews, the DOJ selected those staff members to interview, and MCSO made

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them available. (DSSOF ¶16) In all, the DOJ requested and conducted 85 staff member

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interviews, including interviews of 53 command staff (i.e., personnel holding the rank of

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Sergeant and above). (DSSOF ¶17) The 53 command staff included 5 administrative, 31

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detention, and 17 patrol staff members. (DSSOF ¶18) On the detention side, the DOJ

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interviewed 4 Chiefs, 6 Captains, 18 Lieutenants, 1 Sergeant, and 18 Detention Officers;

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the DOJ also interviewed 2 civilian supervisors and 1 civilian employee. (DSSOF ¶19)

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On the law enforcement side, the DOJ interviewed 5 Chiefs, 8 Captains,

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2 Lieutenants, 2 Sergeants, 2 Volunteer Posse Members, and 11 Deputies. (DSSOF ¶20)

Eighty-Five (85) MCSO Staff Interviews Have Occurred

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The DOJ has also interviewed Sheriff Joseph M. Arpaio. (DSSOF ¶21)

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Although this interview was originally scheduled for January 28, 2011, the DOJ cancelled

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that interview because of inclement weather in Washington, D.C., and rescheduled it for

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February 11, 2011. (DSSOF ¶22) The DOJ did not complete Sheriff Arpaio’s interview

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on February 11, 2011, however, but, with Sheriff Arpaio’s accommodation, it resumed

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and concluded on February 17, 2011. (DSSOF ¶23) His two interviews exceeded

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previously agreed upon time limits. (DSSOF ¶24)

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B.

Document Production Has Continued

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MCSO’s response to the United State’s First Request for Production of

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Documents and Information is overwhelming. (DSSOF ¶25) And this response occurred

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before and after the filing of this action. In addition to the 13,669 pages of documentation

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and a terabyte hard drive containing 931 gigabytes, the MCSO also made available 116

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boxes of documents produced in response to the First Request. (DSSOF ¶26) DOJ

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attorneys have reviewed the documents contained in those boxes on four occasions at the

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offices of MCSO’s lawyers: December 17, 2010 and January 3, 4, 5, 2011. (DSSOF ¶27)
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On many occasions, MCSO lawyers have made clear that DOJ is welcome to resume its

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review of these documents upon reasonable notice and within normal business hours.

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(DSSOF ¶28)

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To assist the DOJ in its evaluation of the voluminous documentation and

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information that MCSO has produced, MCSO attorneys have repeatedly offered to

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provide the DOJ assistance to evaluate the boxed and electronic information previously

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provided in response to the DOJ’s First Request for Documents and Information.

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(DSSOF ¶29) MCSO’s cooperation and allowed access to information has occurred and

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will continue to occur. (DSSOF ¶30) As the DOJ nears the conclusion of this Title VI

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investigation, MCSO’s pledge of cooperation, among other things, most likely will appear

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in an agreement between the parties intended to conclude this investigation and litigation.

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(DSSOF ¶31)

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C.

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The United States And MCSO Are Negotiating A "Go Forward"
Agreement Intended To Conclude The Title VI Investigation And This
Action In The Very Near Future

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Since Jones, Skelton & Hochuli, P.L.C. became counsel of record on

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October 2, 2010, the United States has received nothing short of complete cooperation in

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its investigation, including total access to MCSO staff, facilities, and documents, which is

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precisely the injunctive and declaratory relief the United States seeks in this lawsuit.

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(DSSOF ¶32) In fact, in the Stipulation filed with this Court to extend the deadline for

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filing this Reply, the United States acknowledged that MCSO has made “great strides” in

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its production, so much so that it was “confident” that MCSO’s summary judgment

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motion would eventually be mooted by MCSO’s efforts, and contemplated reaching an

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agreement with MCSO for future information requests. (Dkt. # 52.)

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As an acknowledgement of the MCSO’s continued cooperation, the DOJ

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proposed entering into an agreement that would identify the few items that the DOJ deems

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left to accomplish in this Title VI investigation. (DSSOF ¶33) Although discussions

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regarding a contemplated agreement date back at least to the beginning of February 2011,

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and were formally acknowledged in the Stipulation filed on February 25, 2011, the
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United States delivered a draft of this proposed “go forward” agreement on April 13,

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2011. (DSSOF ¶34) The draft agreement outlines the tasks that the DOJ believes it has

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left to accomplish, including limited follow-up interviews and review of certain

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documents. (DSSOF ¶35) The proposed agreement also includes a reasonable time

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period in which to finalize the DOJ’s investigation, followed by a dismissal of this case.

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(DSSOF ¶36) The MCSO is confident that it will enter into an agreement which will lead

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to the conclusion of the Title VI investigation and this action shortly. (DSSOF ¶37)

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In light of this “litigation history” – MCSO’s cooperation and provision of

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access from August 2010 to the present, the United States’ acknowledgement of this

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cooperation and access since October 2010 and confidence that it will continue, the

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pending “go forward” agreement between the parties, and the fact that the Title VI

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investigation is nearly finished – MCSO has met its burden of showing that it is absolutely

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clear that the alleged conduct that was the basis for this lawsuit (MCSO’s denial of access

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and information) is not reasonably be expected to recur. Friends of the Earth, Inc., 528

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U.S. at 189. The United States’ claim that they have “good reason to believe MCSO’s

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misconduct will return” is unsupportable. See Anderson v. City of Boston, 375 F.3d 71, 93

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(1st Cir. 2004) (“Mere skepticism about the defendants’ future intentions cannot justify the

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type of judicial intervention that plaintiffs seek.”). The United States’ claims for

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injunctive and declaratory relief are moot.

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II.

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LANGUAGE IS NOT A PROPER STATUTORY BASIS FOR THE
UNDERLYING TITLE VI INVESTIGATION
Although the First Amended Complaint broadly alleges that the United

States launched an investigation of “alleged national origin discrimination” (Dkt. # 17 at
2, ¶ 3), the United States has made clear that its investigation is targeting only an alleged
“failure to provide meaningful access to MCSO services for limited English proficient
(LEP) individuals.” (Dkt. # 19–30 at 2.) The United States has also made clear that this
investigation was initiated because of a private complaint. (Dkt. # 19–33 at 2.) See 28
C.F.R. § 42.107(b) (“Any person who believes himself or any specific class of individuals
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to be subjected to discrimination prohibited by this subpart may by himself or by a

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representative file with the responsible Department official or his designee a written

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complaint.”); 28 C.F.R. § 42.107(c) (“The responsible Department official or his designee

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will make a prompt investigation whenever a compliance review, report, complaint, or

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any other information indicates a possible failure to comply with this subpart.”)

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(Emphasis added).

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In Alexander v. Sandoval, 532 U.S. 275 (2001), the United States Supreme

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Court rejected the Title VI interpretation in Lau v. Nichols, 414 U.S. 563 (1974), upon

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which the United States relies, and held that § 601 prohibits only intentional

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discrimination, and that private individuals do not have a right of action to enforce

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disparate-impact regulations promulgated under § 602, such as 28 C.F.R. § 42.104(b)(2),

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the regulation invoked in this case.3 532 U.S. at 280, 285, 293. Because the underlying

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investigation was initiated by a private individual’s complaint, and private individuals can

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only bring an action under § 601, proof of intentional discrimination is required. The

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United States does not dispute that language is not a valid basis for intentional

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discrimination under § 601. See, e.g., Mumid v. Abraham Lincoln High Sch., 618 F.3d

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789, 795 (8th Cir. 2010) (“While Title VI prohibits discrimination on the basis of national

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origin, language and national origin are not interchangeable.”).4 Thus, even assuming that

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Section 601 provides that no person shall, “on the ground of race, color, or
national origin, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity” covered by Title VI. 42 U.S.C.
§ 2000d. Section 602 authorizes federal agencies “to effectuate the provisions of [§ 601]
… by issuing rules, regulations, or orders of general applicability.” 42 U.S.C. § 2000d-1.
Under the authority of § 602, the DOJ promulgated 28 C.F.R. § 42.104(b)(2), which
forbids funding recipients to “utilize criteria or methods of administration which have the
effect of subjecting individuals to discrimination because of their race, color, or national
origin.”
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Alexander reversed the holding in Sandoval v. Hagan, 197 F.3d 484 (11th Cir.
1999), which the United States cites in support of its position. 532 U.S. at 293. Moreover,
Yniguez v. Arizonans for Official English, 119 F.3d 795 (9th Cir. 1997) and Asian Am. Bus.
Group v. City of Pomona, 716 F.Supp. 1328 (C.D. Cal. th
1989) involved First Amendment
claims, and Garcia v. Spun Steak Co., 998 F.2d 1480 (9 Cir. 1993) and Odima v. Westin
Tucson Hotel Co., 991 F.2d 595 (9th Cir. 1993) involved Title VII claims. “It is wellsettled that Title VII is concerned not only with intentional discrimination, but also with
employment practices and policies that lead to disparities in the treatment of classes of
workers.” Garcia, 998 F.2d at 1484. The United States’ investigative authority derives
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the United States’ distinction between intentional discrimination and disparate impact is

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correct, its investigation still falls outside the scope of Title VI.

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CONCLUSION

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Summary judgment in favor of MCSO and Sheriff Arpaio is appropriate on

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the United States’ First Amended Complaint because language is not a proper basis for the

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underlying Title VI investigation; language and national origin are not interchangeable.

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In addition, MCSO has been doing everything asked of it in this investigation. And it is

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prepared to formalize an agreement for its continued cooperation and access for the

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remainder of the United States’ investigation. This is precisely the relief sought by the

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United States when it filed this lawsuit. There is no reason for this Court to enter an order

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requiring MCSO to do what it has voluntarily done, what it has voluntarily been doing,

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and what it will voluntarily agree to do in the future. The Cross-Motion for Summary

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Judgment must be granted, and this case dismissed.

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DATED this 26th day of April, 2011.

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JONES, SKELTON & HOCHULI, P.L.C.

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By /s/Joseph J. Popolizio
William R. Jones, Jr.
John T. Masterson
Joseph J. Popolizio
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Attorneys for Defendants Maricopa County
Sheriff’s Office and Joseph M. Arpaio

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from Title VI. See 28 C.F.R. § 42.107(c). Only cases interpreting that Title are applicable.
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ORIGINAL electronically filed
this 26th day of April, 2011.
COPY electronically sent via email this
this 26th day of April, 2011, to:
Thomas E. Perez, Assistant Attorney General
Dennis K. Burke, United States Attorney
Roy L. Austin, Jr.
Matthew Colangelo
Peter S. Gray
Laurie A. Gelman
Admin Aminfar
U.S. Department of Justice, Civil Rights Division
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Attorneys for the United States
Michael M. Walker
Assistant U.S. Attorney
Two Renaissance Square
40 North Central Avenue, Suite 1200
Phoenix, Arizona 85004
Attorneys for the United States

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Thomas K. Irvine
Cynthia R. Estrella
Polsinelli Shughart, P.C.
One East Washington, Suite 1200
Phoenix, Arizona 85004
Attorneys for Maricopa County

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/s/Joseph J. Popolizio

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