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Petitioners, V No. 18-____ IN THE Supreme Court of the United States ———— MARICOPA, COUNTY OF, et al., Petitioners, v. UNITED STATES OF AMERICA, Respondent. ———— On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit ———— PETITION FOR A WRIT OF CERTIORARI ———— RICHARD K. WALKER Counsel of Record WALKER & PESKIND, PLLC LAW FIRM NAME 16100 N. 71st Street, Suite 140 Scottsdale, AZ 85254 (480) 483-6336 [email protected] Counsel for Petitioners October 15, 2018 WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002 QUESTION PRESENTED In McMillian v. Monroe County, Alabama, 520 U.S. 781 (1997), this Court held that counties cannot be liable in actions brought under 42 U.S.C. § 1983 for the actions of sheriffs acting in their law enforcement capacities, unless the sheriffs are found to have been acting as “policymakers” for the counties within the meaning of Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658 (1978). Here, the Ninth Circuit has misconstrued Arizona law to find sheriffs to be policymakers for Arizona’s counties in the area of law enforcement, took the unprecedented step of applying that concept to claims arising under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the Violent Crime Control and Law Enforcement Act of 1994, 34 U.S.C. § 12601, and the held Maricopa County (“the County”) bound by findings in a collateral case from which the County had been dismissed years before trial and entry of judgment in that case. The questions presented are: 1. Under Arizona law, as evaluated or mandated by McMillian, are Arizona’s sheriffs “final policymakers” for their respective counties with respect to matters of law enforcement? 2. Can “policymaker liability” properly be engrafted onto Title VI and § 12601? 3. Can courts, consistent with due process, apply non- mutual, offensive issue preclusion to bind a party to findings in a case when there is no evidence that another party remaining in that case had identical ii interests and “understood herself to be acting in a representative capacity [for the dismissed party] or the original court took care to protect the interests of the non-party.” Taylor v. Sturgell, 553 U.S. 880, 900 (2008). PARTIES TO THE PROCEEDINGS Defendants below were Maricopa County, Arizona, and Sheriff Joseph Arpaio (replaced by Sheriff Paul Penzone in January 2017), in his official capacity. Plaintiff below was the United States. iii TABLE OF CONTENTS QUESTION PRESENTED……………………………...ii PARTIES TO THE PROCEEDINGS ………..……….iii TABLE OF CONTENTS………………………………..iv TABLE OF AUTHORITIES…………………………...vii INTRODUCTION…………………………………………1 OPINIONS BELOW……………………………………...1 JURISDICTION…………………………………………..2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED……………………………...2 STATEMENT OF THE CASE………………………….4 A. District Court Litigation………………...5 B. Ninth Circuit Decision………………….10 1. Section 1983 Policymaker Liability…………………………...10 2. Applicability of § 1983 Policymaker Liability to Title VI and § 12601………………………12 iv 3. Non-Mutual, Offensive Issue Preclusion………………………...12 REASONS FOR GRANTING PETITION………..….13 I. The Ninth Circuit’s Decision on “Policymaker Liability” Flouts This Court’s Mandates in McMillian Conflicts with the Decisions of Other Circuits, and Infringes on States’ Sovereign Rights…………………………………………….…..16 A. The Ninth Circuit’s Decision is Irreconcilable with McMillian…………………………………..16 B. The Ninth Circuit’s Decision Conflicts with Decisions of Other Circuit Courts.....…………23 C. The Ninth Circuit’s Decision Treads Impermissibly on the Sovereign Choices of Arizona’s Elected Representatives……………25 II. The Ninth Circuit’s Unprecedented Attempt to Engraft 1983 Policymaker Liability Onto Title VI and § 12601 Presents an Important Question of First Impression, The Ninth Circuit’s Answer to Which Will Add Significant Cost Burdens on State and Local Governments and Their Taxpayers…..………………………………………..28 III. The Ninth Circuit’s Holding the County Bound by Non-Mutual, Offensive Issue Preclusion to Findings Made In Melendres Violated the County’s Due Process Rights, As It Was Based On A Judicial Fiction and Without Meaningful Analysis v As To Whether The County’s Interests Had Been Adequately Represented………………………………….……...31 CONCLUSION…………………………………………..36 APPENDIX A – Opinion of the Ninth Circuit U.S. v. County of Maricopa, Arizona..….…….…………….…..4 APPENDIX B – Order from the District Court Denying Maricopa County’s Motion to Dismiss…….15 APPENDIX C – Order from the District Court Granting Plaintiff’s Motion for Summary Judgment and Denying Sheriff Arpaio’s and Maricopa County’s Motion for Summary Judgment...…………………….33 APPENDIX D – District Court Joint Motion and Stipulation to Dismiss Maricopa County Without Prejudice………….……………………………………..103 APPENDIX E – District Court Order Dismissing Maricopa County, Arizona ….………………………..109 APPENDIX F – District Court Findings of Fact and Conclusions of Law….………………………………...111 APPENDIX G – Ninth Circuit Order Denying Petition for Panel Rehearing and En Banc Determination...………………………………………..268 APPENDIX H – Ninth Circuit Order Granting Motion to Stay Mandate.……………………………..270 vi APPENDIX I – District Court Judgment…………272 APPENDIX J – District Court Amended Judgment….….………………………………………...273 APPENDIX K – District Court Order Amending Judgment………………………………………………..274 APPENDIX L – District Court Amended Judgment…..…………………………………………...286 APPENDIX M – Relevant provisions from the U.S. Constitution, the Arizona Constitution and applicable Federal and Arizona statutes….………………….....287 vii TABLE OF AUTHORITIES CASES Alexander v. Sandoval, 532 U.S. 275 (2001)………..31 Bond v. U.S., 564 U.S. 211 (2011)…………………….15 Clayton v. State, 38 Ariz. 135 (1931)…………………22 Dimmig v. Pima County, 2009 WL 3465744 (Az. App. Oct. 27, 2009)………………………………………..19, 21 Flanders v. Maricopa County, 203 Ariz. 368 (App. 2002)……………………………………………………….20 Franklin v. Zaruba, 150 F.3d 682 (7th Cir. 1998), cert. denied 525 U.S. 1141 (1999)…………………………...24 Fridena v. Maricopa County, 18 Ariz. App. 527, 504 P.2d 58 (1972)…………………………………...19, 20, 21 Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1868)…….11 Goldstein v. City of Long Beach, 715 F.3d 750 (9th Cir. 2013), cert. denied, 571 U.S. 1127 (2016)……..………………………………………18, 19, 27 Grech v. Clayton, 335 F.3d 1326 (11th Cir. 2003)……………………………………………………….23 Gregory v. Ashcroft, 501 U.S. 452 (1991)…………….26 viii Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047 (9th Cir. 2005)………………………………………..34, 35 Hounshell v. White, 220 Ariz. 1 (App. 2009)……21, 25 In re Federal-Mogul Global, Inc., 684 F.3d 355 (3rd Cir. 1982)…………………………………………………31 Jack Faucett Assoc., Inc., v. American Tel. & Tel. Co., 744 F2d 118 (DC Cir. 1984), cert. denied, 469 U.S. 1196 (1985)………..……………...………………….35, 36 King v. King, 2017 WL 4018857 (M.D. Ga. Sept. 12, 2017)……………………………………………………….23 Kloberdanz v. Arpaio, 2014 WL 309078 (D. Ariz. Jan. 28, 2014)……………………………………………...20, 21 Knight v. C.D. Vernon, 214 F.3d 544 (4th Cir. 2000)……………………………………………………….24 Los Angeles County v. Humphries, 562 U.S. 29 (2010)……………………………………………………...29 Luhrs v. City of Phoenix, 52 Ariz. 438 (1938)……….22 Mayor v. Educational Equality League, 415 U.S. 605 (1974)……………………………………………………...14 McMillian v. Monroe County, Alabama, 520 U.S. 781 (1997)………………………………………………..passim ix Melendres v. Arpaio, No. 2:07-CV-02513-GMS (D. Ariz.)……………………………………………………ii, 10 Melendres v. Arpaio, 989 F.Supp.2d 822 (D. Ariz. 2013)………………………………………………………...7 Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015), cert denied, ___ U.S. ___, 136 S.Ct. 799 (2016) (“Melendres II”)…………………………………..…………………10, 33 Melendres v. Maricopa County, 815 F.3d 645 (9th Cir. 2016) (“Melendres III”)……………………………..10, 11 Maricopa County, Arizona v. Melendres, No. 15- 376…………………………………………………………17 Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658 (1978)………....ii, 15, 16, 17, 29, 30 Murphy v. Nat’l Collegiate Athletic Ass’n, __ U.S. __, 138 S. Ct. 1461 (2018)…………………………………..27 Nevels v. Maricopa County, 2012 WL 1623217 (D. Ariz. May 9, 2012)……………………………………….20 Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256…………………………………………………………..5 Printz v. U.S., 521 U.S. 898 (1997)…………………...14 Richards v. Jefferson County, 517 U.S. 793 (1996)………………………………………...16, 32, 34, 35 x Rizzo v. Goode, 423 U.S. 362 (1976)………………….13 Ryan v. County of DuPage, 45 F.3d 1090 (7th Cir. 1995)………………………………………………………24 Shelby County, Alabama v. Holder, 570 U.S. 529 (2013)………………………………………..………..14, 15 State v. Jaastad, 43 Ariz. 458 (1934)…………………22 State ex rel. Brnovich v. City of Tucson, 242 Ariz. 588 (2017)……………………………………………………...22 Taylor v. Sturgell, 553 U.S. 880 (2008)……………………………....iii, 8, 9, 16, 32, 34, 35 U.S. v. Maricopa County, 915 F.Supp.2d 1073 (D. Ariz. 2012)………………………………………………4, 5 U.S. v. Maricopa County, 151 F.Supp.3d 998 (D. Ariz. 2015)……………………………………………………1, 33 U.S. v. Maricopa County, 889 F.3d 648 (9th Cir. 2018)…………………………………………………….1, 4 STATUES AND REGULATIONS 28 U.S.C. § 1291…………………………………………..2 28 U.S.C. § 1254(1)……………………………………….2 xi 34 U.S.C. § 12601(a) Violent Crime Control and Law Enforcement Act of 1994 (formerly 42 U.S.C. § 14141) ……………...ii, 2, 4, 6, 10, 12, 28, 29, 30, 31, 37 42 U.S.C. § 1983, Civil Rights Act of 1871…………..ii, 2, 6, 10, 12, 15, 16, 17, 25, 28, 29, 30, 31 42 U.S.C. § 2000d, Title VI of the Civil Rights Act of 1964.……………....ii, 2, 4, 6, 10, 12, 28, 292, 30, 31, 37 Arizona Rev. Stat. § 1-201……………………………….3 Arizona Rev. Stat. § 11-201…………………………3, 21 Arizona Rev. Stat. § 11-251……………………………..3 Arizona Rev. Stat. § 11-251(1)…………………….18, 19 Arizona Rev. Stat. § 11-251.02………………………….3 Arizona Rev. Stat. § 11-253(A)………………………..18 Arizona Rev. Stat. § 11-401……………………………..3 Arizona Rev. Stat. § 11-409…………………………3, 21 Arizona Rev. Stat. § 11-441……………………………..3 Arizona Rev. Stat. § 11-444……………………………..3 Arizona Rev. Stat. § 11-444(A)…………………..........18 xii Arizona Rev. Stat. § 41-1821……………………….3, 23 Arizona Rev. Stat. § 41-1822……………………….3, 23 OTHER AUTHORITIES 2B SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION § 51.2……………………………………31 Constitution of the State of Arizona, Art.
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