Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 1 of 19

C.A. No. 13-16285

C.A. No. 13-17238
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Before J. Clifford Wallace, Susan P. Graber, and Marsha S. Berzon, Circuit Judges
(Opinion filed April 15, 2015)
MANUEL DE JESUS ORTEGA MELENDRES; et al.,
Plaintiffs/Appellees,
v.
JOSEPH M. ARPAIO and MARICOPA COUNTY SHERIFFS OFFICE,
Defendants/Appellants.
On Appeal from The United States District Court
For the District of Arizona
G. Murray Snow, District Judge, Presiding
U.S. Arizona District Court
No.: 2:07-CV-02513-GMS
___________________________________________
PETITION OF MARICOPA COUNTY,
ARIZONA FOR PANEL REHEARING
AND PETITION FOR EN BANC DETERMINATION
___________________________________________
Richard K. Walker, SBN 004159
WALKER & PESKIND, PLLC
16100 N. 71st Street, Suite 140
Scottsdale, Arizona 85254-2236
rkw@azlawpartner.com
Phone: (480) 483-6336
Facsimile: (480) 483-6337
Counsel for Defendant/Appellant Maricopa County, Arizona
1

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 2 of 19

To the Honorable, the Judges of the United States Court of Appeals for the Ninth
Circuit:
Pursuant to Rule 35(a)(2)(B)(ii) of the Federal Rules of Appellate
Procedures and Circuit Rule 35-1, Defendant/Appellant Maricopa County states as
follows: The panels decision thrusting party status on Maricopa County long after
entry of judgment in this case carries the implication that the federal courts have
the power to command a realignment of allocations of authority among local
government institutions as established under State law. This is profoundly at odds
with principles of Federalism as enunciated in decisions of the United States
Supreme Court, and has significant national implications and presents a question of
exceptional importance.
I.

STATEMENT OF REASONS FOR EN BANC REVIEW

In its April 15, 2015 decision, the panel of this Court to which the appeal in
this matter had been assigned found that the Maricopa County Sheriffs Office
(MCSO) had been improperly named as a party. Melendres v. Arpaio, 2015 WL
1654550 at *3 (9th Cir. 2015). In the wake of this finding, although no party to the
appeal had sought joinder of another party, the issue had not been briefed or

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 3 of 19

argued, and Maricopa County (the County),1 theretofore not a party to this appeal,
was accorded no opportunity to be heard, the panel further held:
We therefore order that Maricopa County be substituted as a party in
lieu of MCSO. See Fed.R.Civ.P. 21 (Misjoinder of parties is not a
ground for dismissing an action. On . . . its own, the court may at any
time, on just terms, add or drop a party). On remand, the district
court may consider dismissal of Sheriff Arpaio in his official capacity
because an official-capacity suit is, in all respects other than name, to
be treated as a suit against the entity. Kentucky v. Graham, 473 U.S.
159, 166, 87 L.Ed.2d 114 (1985); see also Ctr. For Bio-Ethical
Reform, Inc. v. L.A. Cnty. Sheriff Dept, 533 F.3d 780, 799 (9th Cir.
2008) (dismissing a duplicative official-capacity defendant).
2015 WL 1654550 at *3.
The County asserts that the panels forcing its joinder at this late stage in this
case is improper and unwarranted in light of critical facts presumably unknown to
the panel at the time of its decision, risks creating great complication and
prolonging this case, and represents an intrusion upon the sovereign prerogatives
of State and local governments irreconcilable with time-honored principles of

For reasons that will be more fully explained infra, it is important to note that
Maricopa County and the County, as used herein, are intended to refer to that
portion of the government of Maricopa County embodied in the Maricopa County
Board of Supervisors, the Maricopa County Manager, and those appointed officials
and employees of the County who serve under the supervision and direction of the
foregoing. The phrase is not intended, and should not be construed, to refer to any
other Maricopa County officer whose office is filled by the electoral process as
provided in the Arizona Constitution (Constitutional Officers), or to any of the
officials and other employees of the County who serve under the supervision and
direction of such Constitutional Officers.
3

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 4 of 19

Federalism embedded in the Tenth Amendment of the United States Constitution.

For these and further reasons expounded below, the County respectfully petitions
this Court for a rehearing by the panel, or by the Court sitting en banc, of the
narrow issue of the appropriateness of the panels sua sponte imposition of party
status on the County.
II. FACTUAL BACKGROUND
This case was commenced with the filing of a Complaint by Plaintiff
Manuel de Jesus Ortega Melendres on December 12, 2007.

Doc. 1.

The

Complaint was amended, and the First Amended Complaint filed on September 5,
2008, adding four new Plaintiffs, dropping the claim for damages pled in the
original Complaint, and converting the action to one seeking only declaratory and
injunctive relief. See Doc. 26 at 8-10, 29-30.
The County was named as a Defendant in both the original Complaint and
the First Amended Complaint (FAC). On September 21, 2009, the Plaintiffs and
the County filed a Joint Motion and Stipulation to Dismiss Maricopa County
Without Prejudice. Doc. 178. In the Joint Motion, Plaintiffs submitted the County
is not a necessary party at this juncture for obtaining the complete relief sought . .
. . Id. at 3. The Joint Motion also stated that Plaintiffs had proposed dismissal of
the County in the interests of judicial economy and efficiency, without prejudice
to the County being rejoined at a later point if doing so becomes necessary to
4

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 5 of 19

obtain complete relief . . . . Id. The Joint Motion was not opposed by any other
party and was granted by the district court on October 13, 2009. Doc. 194. Since
the Countys dismissal, neither the district court nor any party has suggested that
bringing the County back into the case as a party was necessary to obtain complete
relief or for any other reason.
The district court granted Plaintiffs application for a preliminary injunction,
enjoining certain conduct on the part of Defendants Sheriff Arpaio and MCSO on
December 23, 2011. Doc. 494. A bench trial was conducted beginning on July 19,
2012, and ending on August 2, 2012. Docs. 549-555. The trial court issued its
Findings of Fact and Conclusions of Law on May 24, 2013. Doc. 579. Defendants
Sheriff Arpaio and MCSO filed a Notice of Appeal on June 21, 2013, that led to
this Courts April 15, 2015 panel decision. See Doc. 587.
From the granting of the Joint Motion to dismiss the County out of the case
on October 13, 2009, to the issuance of this Courts panel decision on April 15,
2015, the County has not participated as a party litigant in any aspect of this case.
The panels decision thrusting it back into the case as a party was, therefore,
wholly unexpected. Inasmuch as the panel did not explain what exactly it intended
by this late-stage joinder of the County, or provide any guidance as to the just
terms (Fed.R.Civ.P. 21) that are to apply, numerous questions have been raised,
and much confusion has resulted.
5

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 6 of 19

III.

ARGUMENT

A. The Countys Conduct, As Opposed To That Of The Sheriff And

MCSO, Has Not Been At Issue In This Case Since The County Was
Dismissed Out In September of 2009.
Since the filing of Plaintiffs FAC (Doc. 26) in 2008, the only relief they
have sought has been declaratory and injunctive, and the focus of their claims has
been exclusively on practices of Sheriff Arpaio and MCSO. The FAC sets forth
extensive and detailed allegations of unlawful discriminatory policing by the
Sheriff and MCSO.

See Doc. 26. The sole allegation specifically accusing the

County of any improper conduct stated:

By both its action and inaction, Defendant Maricopa County
has agreed with, accepted, acquiesced in, and sanctioned Defendant
Arpaios focus on supposed enforcement of federal civil immigration
laws at the expense of pursuit of criminal conduct and has done the
same with regard to the Defendants policy and practice of employing
illegal and improper racial profiling and other discriminatory
treatment of Plaintiffs and other Latino persons in Maricopa County.
In fact, the Chair of the Maricopa County Board of Supervisors has
raised as good law enforcement these policies and practices of
Defendant Arpaio in the face of large-scale criticism that they
specifically target Latinos.
Id. at 19. Whatever may have been the significance of this allegation at the time
the FAC was filed in September of 2008, however, Plaintiffs joined in a motion to
dismiss the County slightly more than a year later, acknowledging that the County
was not a necessary party at this juncture for obtaining the complete relief sought
. . . . Id. at 3.
6

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 7 of 19

Given this, it is unsurprising that, at the bench trial of this matter, the focus
was exclusively on alleged misconduct by the Sheriff and MCSO, and there was no
evidence adduced, and no trial court findings of any unlawful or improper conduct
by the County or any of its employees. See Docs. 571 - 577.
B. Idiosyncrasies In The Structure Of County Government Under The
Constitution And Laws Of Arizona Make Joinder Of The County
Improper.
Many municipalities and counties have vertically integrated, unitary, and
hierarchical structures, with an executive and/or a legislative body with respect to
whom all other county/municipal departments and operations are subordinate. See
Natnl

Assoc.

of

Counties

Overview

of

County

Government,

www.naco.org/Counties/learn/Overview. The Founders of the State of Arizona

who devised its Constitution, and the Legislatures that have since enacted laws to
implement it, however, chose a different approach to the organization of
government at the county level.
The

Arizona

Constitution

creates

nine

specifically

enumerated

Constitutional Officers of county government, each of whom are to be separately

voted into office by the electorate: Sheriff, County Attorney, Recorder, Treasurer,

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 8 of 19

Assessor, Superintendent of Schools, and at least three Supervisors.2 Arizona

Constitution Art. 11, 3.

The Constitution further provides that the duties,

powers, and qualifications of such officers shall be as prescribed by law. Id. at

4.
Pursuant to this constitutional provision, the Arizona Legislature has made
detailed provision in the statutes for the distribution of authority and responsibility
for the various governmental functions at the county level among the
Constitutional Officers. The authority to preserve the peace, to apprehend those
who have committed or attempted to commit crimes, to prevent and suppress
breaches of the peace, and perform various other functions typically performed by
law enforcement agencies has been allocated to Arizonas county Sheriffs. A.R.S.
11-441. No authority over such law enforcement functions has been devolved
upon the county Supervisors.

See A.R.S. 11-241 and 11-251; see also

Hounshell v. White, 220 Ariz. 1, 5-6, 202 P.3d 466, 470-71 (App. 2008) (board of

It is clear from the record of the debates during Arizonas Constitutional

Convention that Arizonas founders considered Constitutional Officers who were
to be elected to not be subject to the control of the Board of Supervisors. See JOHN
S. GOFF, THE RECORDS OF THE ARIZONA CONSTITUTIONAL CONVENTION OF 1910 AT
540-505 (discussion of why Assessor should be elected, rather than appointed, and
therefore controlled, by the Supervisors).
8

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 9 of 19

supervisors has no authority to discipline other Constitutional Officers or the

employees reporting to them).
The Arizona Supreme Court long ago established that county boards of
supervisors have authority to exercise only such authority as has been allocated to
them by the Legislature.
The boards of supervisors of the various counties of the state have
only such powers as have been expressly or by necessary implication,
delegated to them by the state legislature. Implied powers do not exist
independently of the grant of express powers and the only function of
an implied power is to aid in carrying into effect a power expressly
granted.
Associated Dairy Products Co. v. Page, 68 Ariz. 393, 395, 206 P.2d 1041, 1043
(1949); see also Mohave County v. Mohave-Kingman Estates, Inc., 120 Ariz. 417,
420, 586 P.2d 978, 981 (1978) (citation and internal quotation marks omitted)
(Actions of the Board [of Supervisors] accomplished by a method unrecognized
by statute have been described as without jurisdiction and wholly void.)
In contrast to the more commonly encountered vertically integrated and
hierarchical arrangements for municipal and county governments one finds
elsewhere, the State of Arizona has adopted a horizontal structure incorporating
separation of powers concepts, whereby authority over and responsibility for the
various functions of government at the county level are dispersed among the
several Constitutional Officers.
9

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 10 of 19

It defies logic to suggest that a person or entity that has no control over
conduct a plaintiff seeks to have declared unlawful and enjoined could properly be
named a defendant in such an action.
In making an officer of the state a party defendant in a suit to enjoin
the enforcement of an act alleged to be unconstitutional, it is plain that
such officer must have some connection with the enforcement of the
act . . . .
Ex Parte Young, 209 U.S. 123, 157 (1908). In this case, Plaintiffs have sought and
obtained declaratory and injunctive remedies that target only law enforcement
functions. It is the Sheriff, not the Board of Supervisors, who has been given
authority over law enforcement matters in Maricopa County. Having been allotted
no authority over such matters by statute, any attempt by the County to exert
control over the law enforcement policies and practices of the Sheriff and MCSO
would be, as a matter of firmly established Arizona law, without jurisdiction and
wholly void. Mohave-Kingman Estates, Inc., 120 Ariz. at 420, 586 P.2d at 981.
Thus, any federal court order requiring that the County exercise such authority
would place it in the impossible position of being directed by judicial decree to do
that which is beyond its lawful authority under the Constitution and laws of
Arizona.
Further, it is abundantly clear that the County is not a necessary party
required to be joined in this action if feasible pursuant to Rule 19 of the Federal
10

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 11 of 19

Rules of Civil Procedure. Plaintiffs acknowledged this, first, by their stipulation in

the Joint Motion to Dismiss that the County is not a necessary party at this
juncture for obtaining the complete relief sought . . . . Doc. 178 at 3. They have
confirmed it by their failure at any time thereafter to seek the Countys joinder.
Moreover, this Courts precedents make it clear that, in the circumstances of
this case, the County is not a necessary party.

See, e.g., Salt River Project

Agricultural Improvement and Power Dist. v. Lee, 672 F.3d 1176, 1180 (9th Cir.
2012) (. . . [B]ecause the district court can accord the complete relief sought by
the plaintiffs in the Navajo Nations absence, it erred in holding that the tribe was a
necessary party under Rule 19(A)(1)(a)).
Indeed, the panels own decision implicitly indicates that the County is not a
necessary party by suggesting the district court consider dismissing the Sheriff out
of the case as duplicative now that the County has been brought back in. See 2015
WL 1654550 at *3 (citations and internal quotation marks omitted) (. . . [T]he
district court may consider dismissal of Sheriff Arpaio in his official capacity
because an official-capacity suit is . . . to be treated as a suit against the entity.).
If the Sheriff is duplicative of the County, then the reverse is, a fortiori, also true.3

The County, however, takes issue with the panels characterization of the Sheriff
in his official capacity and the County as juridical equivalents. As is discussed
11

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 12 of 19

C. To The Extent The Panels Decision Is To Be Understood As Indicating

That The County Can Be Compelled By A Federal Court To Exercise
Authority Over The Sheriff With Respect To Law Enforcement, It Runs
Afoul Of Fundamental Principles Of Federalism.
The United States Supreme Court has held:
Where, as here, the exercise of authority by state officials is attacked,
federal courts must be constantly mindful of the special delicacy of
the adjustment to be preserved between federal equitable power and
State administration of its own law.
Rizzo v. Goode, 423 U.S. 362, 378 (1976) (citations omitted). Indeed, the Rizzo
Court noted that, when a plaintiff seeks to enjoin a governmental agency, he must
contend with the well-established rule that the Government has traditionally been
granted the widest latitude in the dispatch of its own internal affairs. Id. (citations
and internal quotation marks omitted).
There can surely be few, if any, prerogatives more central to the concept of
sovereignty than the distribution of powers among the various institutions of
government. One can well imagine that, if some outside power were to presume to

more fully supra, the structure of county government under Arizonas Constitution
and laws makes the Sheriff a Constitutional Officer, and his office an institution of
county government that is not subject to the Countys direction and control when it
comes to law enforcement policies and practices. Nor does the Ninth Circuit case
cited by the panel, Bio-Ethical Reform, Inc. v. L.A. Cnty. Sheriff Dept, 533 F.3d
780 (9th Circuit 2008), support a contrary conclusion. In that case, the Los Angeles
County Sheriff, sued in his official capacity, was dismissed out as duplicative of
the Los Angeles County Sheriffs Department. Id. at 799.
12

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 13 of 19

demand that the United States Congress take over functions assigned under our
Constitution to the Judicial Branch, or that the Executive Branch assume authority
delegated to the Legislative Branch, most Americans would recoil at such an
intrusion upon our national sovereignty. So it is also with Arizonas distribution of
governmental authority among the Constitutional Officers of county government.
The powers not delegated to the United States by the Constitution . . . are
reserved to the States respectively, or to the people. U.S. Const. amend. X. One
searches our federal Constitution in vain for any indication that power has been
delegated to any branch of the federal government to dictate how authority is to be
distributed among State and local governmental institutions and how that authority,
once distributed, is to be exercised by those institutions in their interactions with
each other.
By suggesting that the imposition of party status on the County in this case
paves the way for a dismissal of the Sheriff, who has been rendered thereby
unnecessary to the litigation, the panel decision necessarily implies a presumption
that the County is in a position to compel compliance with injunctive relief
directed at law enforcement practices. This is tantamount to the commandeering of
state governmental agencies and compelling them to enforce federal regulatory
requirements, a concept roundly condemned in New York v. U.S., 505 U.S. 144,
161-67 (1992).
13

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 14 of 19

Even worse in this case, replacement of the Sheriff as the Defendant with the
County would effectively be to require the County to ensure compliance with
injunctive relief based on the results of a trial in which it did not participate, and to
demand that the County, in so doing, exercise powers beyond the parameters of its
lawful authority under State law.

Such a realignment of Maricopa Countys

governmental structure and lines of authority by the federal judiciary would

represent an unprecedented and intolerable intrusion upon the sovereign
prerogatives of the State of Arizona.
State sovereignty is not just an end in itself; rather, federalism
secures to citizens the liberties that derive from the diffusion of
sovereign power. Because the police power is controlled by 50
different States instead of one national sovereign, the facets of
governing that touch on citizens daily lives are normally administered by smaller governments closer to the governed. The Framers
thus ensured that powers which in the ordinary course of affairs,
concern the lives, liberties, and properties of the people were held by
governments more local and more accountable than a distant federal
bureaucracy. The independent power of the States also serves as a
check on the power of the Federal Government: By denying any one
government complete jurisdiction over all the concerns of public life,
federalism protects the liberty of the individual from arbitrary power.
Natnl Federation of Independent Business v. Sebelius, 567 U.S. ___, 132 S.Ct.
2566, 183 L.Ed.2d 450 (2012) (citations and internal quotation marks omitted).
To the extent that the panels decision in this case must be understood to
mean that the district court in this case could apply its remedial measures to the
County, requiring it to ensure compliance by the Sheriff and MCSO, it
14

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 15 of 19

impermissibly invades the sovereignty of the State of Arizona. In addition, it also

threatens to erode the check on federal power extolled by the National Federation
of Independent Business Court. If that is the panels intent, it has placed the
established balance between federal and State sovereignty across the entire nation
on a slippery slope.
D. Questions Raised And Confusion Caused By The Panels Unsought
Joinder Of The County.
As is evident from the foregoing, the Countys post-judgment joinder by the
panel decision is improper and should be reversed. Even if that were not the case,
clarification is required at a minimum. As previously noted, the panel invoked
Rule 21 of the Federal Rules of Civil Procedure in ordering the Countys joinder,
but failed to specify the just terms that are to be applicable to the Countys
participation in the litigation going forward. This raises a number of questions,
some of which are listed below:
1. To what extent, if any, given that the County did not participate in the
trial of this case, or in the formulation of remedial measures, is it
bound by the district courts Findings of Fact and Conclusions of
Law and/or its remedial orders?
2. If the County is bound by some portion or all of the findings below,
how can such a result be squared with the Countys right to the due
15

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 16 of 19

process of law?
3. Given that the County was not a party at the time the Judgment of the
trial court was entered, does it now have the right to take an appeal
from the courts decision?4
4. In light of the fact that the County did not participate in the trial, does
it now have the right to demand a retrial of some or all of the issues
previously tried?
5. In light of the fact that the County was not a party at the time and thus
had no opportunity to participate in the formulation of remedial
measures in the wake of the district courts judgment, does the
County now have the right to demand that a hearing be held to
determine whether modification of the courts remedial orders is
indicated by evidence and argument to be presented by the County?
6. Does the Countys late joinder mean it has the full rights of a party
going forward, or some lesser panoply of rights, as has been
suggested by the district court since the issuance of the panels

In an abundance of caution, the County is filing a Notice of Appeal

contemporaneously herewith. A copy, without exhibits, is attached hereto as
Exhibit B.
16

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 17 of 19

decision? See excerpt from April 21, 2015, hearing attached hereto
as Exhibit C.
There are almost certainly further fundamental questions that will need to be
addressed if the decision of the panel is not modified to eliminate the Countys
joinder. If the County is to remain in the case, however, the guidance of this Court
on the foregoing questions is sorely needed to avoid spawning yet more litigation
in a case that has been active now for eight years, has consumed vast resources,
and threatens to continue into the indefinite future.
IV.

CONCLUSION

For all the foregoing reasons, the County respectfully requests that the
panels decision be modified by the deletion of the second paragraph of Section III
of the opinion.

Failing that, the County respectfully requests that this Court

specify the just terms applicable to the Countys joinder as contemplated by Rule
21 of the Federal Rules of Civil Procedure.
RESPECTFULLY SUBMITTED this 15th day of May, 2015.
WALKER & PESKIND, PLLC
By: /s/ Richard K. Walker, #004159
Richard K. Walker,
Esquire
16100 N. 71st Street, Suite 140
Scottsdale, AZ 85254
Counsel for Defendant/Appellant

17

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 18 of 19

CERTIFICATE OF COMPLIANCE
I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached petition for penal
rehearing/petition for rehearing en banc/answer is:

__X__

Proportionately spaced, has a typeface of 14 points or more and

contains 4,168 words (petitions and answers must not exceed 4,200
words)

OR

______ Monospaced, has 10.5 or fewer characters per inch and contains
_____ words or _________ lines of text (petitions and answers must
not exceed 4,200 words or 390 lines of text).
OR
______ In compliance with Fed. R. App. 32(c) and does not exceed 15 pages.

Dated this 15th day of May, 2015.

/s/ Richard K. Walker
Richard K. Walker
Attorney for Plaintiff-Appellant

18

Case: 13-16285, 05/15/2015, ID: 9540175, DktEntry: 77-1, Page 19 of 19

CERTIFICATE OF SERVICE AND NOTICE OF ELECTRONIC FILING

I hereby certify that on May 15, 2015, I electronically filed the Petition of
Maricopa County, Arizona for Panel Rehearing and Petition for En Banc
Determination, with the Clerk of the Court for the United States Court of Appeals
for the Ninth Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that services will be accomplished by the appellate CM/ECF system.

/s/ Michelle Giordano

19