Case 2:07-cv-02513-GMS Document 1784 Filed 08/08/16 Page 1 of 11

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 Maricopa County, Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF ARIZONA

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Manuel de Jesus Ortega Melendres, et al.,

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CASE NO: 2:07-CV-02513-GMS

Plaintiffs,

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DEFENDANT MARICOPA COUNTYS

RESPONSE TO PLAINTIFFS
SUPPLEMENTAL MEMORANDUM
REGARDING COMPENSATION
PURSUANT TO THE COURTS JULY
22, 2016 ORDER

vs.

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Joseph. M. Arpaio, et. al.,

Defendants.

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Defendant MARICOPA COUNTY, ARIZONA (the County), hereby submits its

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Response to Plaintiffs July 27, 2016 Supplemental Memorandum Regarding

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Compensation Pursuant to the Courts Order of July 22, 2016 (Doc. 1772)

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(Supplemental Memorandum).1 Plaintiffs assert in their Supplemental Memorandum

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that the base compensation rates proposed on Plaintiffs July 19, 2016 proposal (Doc.

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1747-3) for any individuals who can prove they were harmed by Defendants contempt

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under the compensation plan are appropriate and reasonable (with the possible additional

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proviso of a $10,000 cap per claimant as compensation for any total period of

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Plaintiffs filed their Supplemental Memorandum on July 27, 2016. (Doc. 1772.) The
County moved, on August 1, 2016, for leave to file a response to the Supplemental
Memorandum. (Doc. 1774.) On August 3, 2016, this Court granted the Countys
motion. (Doc. 1777.)
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detention). (Doc. 1772 at 1 (footnote omitted).) The base compensation rates to

which Plaintiffs refer in their Supplemental Memorandum would fix the amount of
compensation for any claims, or portions of claims, seeking compensation solely for
detentions in violation of the Courts orders at $1,500 for the first hour, plus $200 for
every additional 20 minutes of unlawful detention thereafter.2

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The Supplemental Memorandum also puts forth, however, an alternative

mechanism for compensation in response to questions raised by the Court at the hearing
on July 22, 2016. Under Plaintiffs proposal, raised for the first time in the Supplemental
Memorandum, putative claimants would be notified, in materials advertising the
existence of the extrajudicial BrownGreer compensation program whose terms have been
the subject of negotiations among the parties for many months, that they can choose
between seeking benefits under the BrownGreer program, or submission of claims
directly to this Court in the form of motions for compensation, with the Court then
holding hearings and making a determination of the appropriate compensation to be
awarded based on the evidence submitted. (Doc. 1772 at 1-2.) Plaintiffs propose this
alternative mechanism as a third option for any claimants who chose to eschew both
the BrownGreer program and the bringing of separate actions under 42 U.S.C. 1983.
(See id. at 2, n. 2.)

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I. PLAINTIFFS RATES FOR COMPENSATION BASED SOLELY ON

DETENTION ARE EXCESSIVE, CONFISCATORY, AND PUNITIVE.

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As pointed out by counsel for the County at the July 22, 2016 hearing, Plaintiffs

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proposed rates of compensation for detention would be at an annualized rate of about

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To be clear, this issue is concerned exclusively with compensation rates for claims, or
portions of claims, seeking compensation for only unlawful detentions themselves. The
parties have agreed that the BrownGreer program would permit claimants to recover for
actual, provable damages such as medical expenses, loss of compensation from
employment, and the like in addition to any recovery for a detention itself. (See Doc.
1747-3 at 8-9; Doc. 1747-4 at 8-9.)
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$5,250,000. (July 22, 2016 Tr. at 12, ll. 10-14.)3 The record in this case is devoid of any
evidence that members of the Plaintiff class who may have been unlawfully detained in
violation of this Courts orders would be entitled to compensation at rates even

approaching such an amount. In the absence of such evidence, compensation at the rates

proposed by Plaintiffs is clearly intended to be, and is, purely punitive.

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Punitive sanctions are not available in civil contempt proceedings. Sankary v.

Ringgold-Lockhart, 611 Fed.App. 893, 895 (9th Cir. 2015) (citing Hicks v. Feiock, 485

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U.S. 624, 632-33 (1988)). The powers of the courts to address issues of civil contempt

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are limited to either coercive measures designed to induce future compliance, or

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compensatory measures whose purpose is to provide remedies for those injured by a

partys contumacious conduct.

See generally United Mine Workers of America v.

Bagwell, 512 U.S. 821 (1994).

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Where compensation is intended, a fine is imposed, payable to the

complainant. Such fine must of course be based upon evidence of
complainants actual loss . . . .

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U.S. v. United Mine Workers of America, 330 U.S. 258, 304 (1947) (emphasis added);
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see also, Boylan v. Detrio, 187 F.2d 375, 379 (5th Cir. 1951) (Compensatory remedy in

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civil contempt proceeding is to compensate the injured party for actual loss or damage

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suffered because of the disobedience of an order or decree of the court made for his

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benefit.) (emphasis added) (footnote omitted).

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This figure is derived by adding the $1,500 that Plaintiffs have proposed as the
compensation rate for the first hour of detention, to the product of $600/hour ($200 times
three 20-minute increments per hour) and 8759 hours (365 days times 24 hours per day,
with one hour subtracted for the first hour Plaintiffs would have compensated at $1,500).
This yields a total of $5,256,900 per annum.
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Plaintiffs contention that compensation at a rate exceeding $5 million per year is

appropriate and reasonable is untenable on its face, especially in light of the fact that

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claimants choosing to avail themselves of the BrownGreer program would be entitled,

upon an appropriate evidentiary showing, to recover consequential damages in addition to

whatever they were awarded for the period of their detention itself. Given that it is linked

to no evidentiary showing and there is no reason whatsoever to presume that any member

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of the Plaintiff class would be able to show entitlement to compensation at such a rate,

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the only apparent motivation for Plaintiffs advocacy of such a rate is a desire to punish.

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While it is hardly a revelation that Plaintiffs counsel are animated here by such a desire,

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the law plainly prohibits the imposition of punishment in the guise of excessive

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compensation in the context of a civil contempt proceeding.

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Nor do the cases listed by Plaintiffs at Tab 6 of their Memorandum On Remedies

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for Civil Contempt Pursuant to the Courts Order of May 13, 2016 (Doc. 1684) provide a

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justification for the clearly punitive compensation rates they have proposed. To begin

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with, all but three of those cases involve settlements, and neither this Court nor the
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parties to this proceeding are in a position to evaluate all the variables that factored into

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the settlement amounts agreed upon in those cases, let alone to compare such variables to

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those at issue here.

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The three cases listed in Tab 6 that actually reflect judicial judgments are likewise
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of no help to Plaintiffs contention that compensation at annualized rates of more than

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$5 million are appropriate and reasonable.

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inapposite because none of them involve contempt proceedings.

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Most fundamentally, these cases are

Rather, they are

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concerned with remitturs from jury verdicts deemed to have been excessive.

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therefore offer no enlightenment as to how a court in exercising its contempt powers is to

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determine where the boundary lies between compensatory fines, which can be the proper

province of civil contempt proceedings, and punitive fines, which can only be imposed as

remedies for contempt in criminal contempt proceedings.

In Gardner v. Federated Department Stores, Inc. 907 F.2d 1348 (2d Cir. 1990)

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(summarized by Plaintiffs in Doc. 1684-1 at 92), the Second Circuit found excessive a

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jury award of $150,000 for a deprivation of liberty by department store security

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personnel, and remanded for a new trial on the issue unless the plaintiff accepted a

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remittitur amount of $50,000, based on its determination that the jury award exceeds

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awards sanctioned in similar New York cases. Id. at 1353 (citations omitted). The

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judicial deference to jury determinations that the Gardner court acknowledged as the

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starting point for its analysis clearly plays no role in the determination of what does, or

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does not, amount to a fine that can legitimately be imposed pursuant to a courts civil

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contempt powers.
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Similarly, in Mason v. City of New York, 949 F.Supp. 1068 (S.D.N.Y. 1996), the

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court granted a remitter, reducing a jury verdict from $100,000 for a brief period of

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incarceration by the New York Port Authority and requiring plaintiff to accept $10,000 or

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face a new trial. In addition to the judicial deference to jury verdicts that was at play in
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Gardner, the Mason court applied a New York statute and case law erecting a standard

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that Provides for a narrower range of acceptable awards than its shocks the judicial

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conscience counterpart [under applicable federal law]. Id. at 1075-76 (quoting Ismail v.

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Cohen, 899 F.2d 183, 186 (2d Cir. 1990)). Again, whatever New York law may tell us
about excessive jury awards in cases arising in that State, it sheds no light on the limits on
this Courts authority to impose compensatory fines in this case.

Finally, Plaintiffs third case not involving a settlement is Martinez v. Port

Authority of New York, 2005 WL 2143333 (S.D.N.Y. 2005), where the court also

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remitted a $1 million jury verdict as excessive and ordered a new trial unless the Plaintiff
accepted the remitted amount of $360,000. Id. at *12. The Martinez courts remittitur,

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however, was from a jury verdict for [e]motional distress, mental anguish and lose of

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liberty damages arising from Martinezs false arrest . . . . Id. (internal quotations

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omitted). Apart from the issues of the absence of considerations unique to the contempt

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context, judicial deference for jury verdicts, and standards of New York law that are not

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applicable here, the admixture of the additional elements of emotional distress and mental

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anguish, for which additional recovery is possible under the BrownGreer program at

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issue in this case, makes Martinez clearly distinguishable and inapposite to the

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appropriate level of compensation for detention in question here.

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In sum, Plaintiffs continue to advocate for detention-only compensation rates that

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are clearly excessive and punitive on their face, and that find no support in either the

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evidentiary record or case law. The rates proposed by the Defendants are, if anything,

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more than reasonable.4 Plaintiffs suggestion of a $10,000 cap for the total period of

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detention is, however, a reasonable one. For its part, the County hereby accepts the
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As pointed out by counsel for the County at the July 22, 2016 hearing, Defendants
proposed compensation for detention under the BrownGreer program annualizes at about
$920,000. (July 22, 2016 Tr. at 12, ll. 14-15.)
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proposal that all awards for claims, or portions thereof, based solely on the period of
detention (i.e., without regard to any other provable elements of damages) be so limited.

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II. PLAINTIFFS NEW PROPOSAL FOR A THIRD AVENUE FOR

CLAIMANTS TO SEEK RELIEF IS UNTIMELY, UNWORKABLE,
AND AT ODDS WITH UNDERSTANDINGS UNDERLYING
NEGOTIATIONS AMONG THE PARTIES.

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The BrownGreer program is the product of lengthy and detailed negotiations

among the parties that have continued over several months. Throughout the negotiations,

the openly and repeatedly expressed premise of all participants was that they sought to

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devise a system for compensation of victims of detentions that had violated this Courts

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orders providing a relatively expeditious, inexpensive, user-friendly system whereby such

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victims could obtain compensation that would serve as an alternative to such individuals

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bringing separate actions under 42 U.S.C. 1983. At no time during these negotiations,

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prior to Plaintiffs filing of their Supplemental Memorandum, was the option of

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individual claimants applying directly to this Court for compensation even mentioned, let
alone discussed.
As with all negotiations, the discussions that led to the proposed extrajudicial
system for compensation of alleged victims that has been submitted to this Court reflects

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compromises made on all sides. How the trajectory of those negotiations, as well as their

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final outcome, would have been influenced had Plaintiffs recently made proposal been

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on the table can now only be the subject of speculation. The circumstances make it clear

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that this new proposal has only been put forth in response to concerns expressed by this

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Court that it lacks authority to impose by judicial fiat the detention compensation rates
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demanded by Plaintiffs.
It is inherently unfair and unreasonable for Plaintiffs at this late date to expect that

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they should be able to change the parameters under which the parties have labored for

many months. As this Court is well aware, the BrownGreer program is offered as a

voluntary alternative of which claimants can avail themselves or not as they choose.

Putative claimants compromise their rights only by choosing to participate in the program

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and providing sufficient claims information for BrownGreer to make a determination that
they meet the threshold requirements for eligibility.
The BrownGreer program provides a means for alleged victims to obtain relief
that did not heretofore exist, and that has been agreed to by Defendants as a

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compensatory remedy designed specifically to address the consequences flowing, at least

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indirectly, from conduct the Court has found to have been contemptuous. As part of this

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program, the Sheriff and MCSO have agreed to significant compromises of due process

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rights and other defenses that would otherwise be available to be asserted in defense of

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the claims of alleged victims. These were compromises made to provide an alternative to
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Plaintiffs attempt now to introduce yet

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the bringing of separate claims under 1983.

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another avenue for relief threatens to undermine the bedrock upon which those

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compromises were grounded.

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Beyond all this, the practicalities of what the Plaintiffs are now proposing make it
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unworkable. In effect, Plaintiffs appear to seek mini-trials for all alleged victims who

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wish to avail themselves of this third alternative. Moreover, Plaintiffs apparently want to

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obtain the benefits of a Rule 23(b)(3) class for a class certified under Rule 23(b)(2). In

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doing so, they also attempt an end-run around the manageability requirement in Rule
23(b)(3)(D), which could well defeat an effort to certify a Rule 23(b)(3) class in any

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event.

Most importantly, Plaintiffs make no attempt to address the constitutional

implications of their new proposal. There would appear, for example, no basis for

limiting defenses to claims brought under such a mechanism, any more than they could

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be limited in separately brought 1983 lawsuits. Further, because what is at issue is

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monetary damages, the parties constitutional right to trial by jury could be implicated.

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There is no evidence that these and other serious constitutional and procedural issues

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have been thought through. Plaintiffs new proposal is clearly an ill-considered attempt

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to find a way around the Defendants refusal to accede to what is a demand for patently
excessive, and therefore punitive, compensation rates for detentions.

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Nor does Plaintiffs even more half-baked suggestion for a representative

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compensation claim that would be tried in this Court and then used to support their

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proposed rate of compensation for detention (Supp. Mem. at 3), fare any better. This
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presumes that there would be nothing individualistic in the determination as to the

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damages to which a claimant would be entitled for the detention elements of his or her

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claim. That this is so is anything but clear as a legal matter.

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Both variants of Plaintiffs new proposal have been raised far too late in the game,

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and they are fraught with problems to which Plaintiffs appear to have given no

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consideration. They should be rejected out of hand.

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III.

CONCLUSION

Plaintiffs demand for a compensation rate that annualizes at over $5 million has

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no support in the evidentiary record, and the cases they have cited in support are

inapposite and of no precedential value. Apparently recognizing that their attempt to

extract agreement to clearly excessive compensation rates has run into heavy seas,

Plaintiffs now seek to chart an entirely new course, never previously discussed with

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Defendants or this Court. All this is too little too late. The Court should adopt the

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proposed BrownGreer program with the detention compensation rates agreed to by

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Defendants, and with Plaintiffs suggestion of a $10,000 cap on awards based on the

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detention aspects of claims (i.e., without affecting claimants ability to prove actual

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damages as contemplated in agreed upon portions of the BrownGreer program), leaving

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those who choose not to participate to pursue separate claims under 1983 if they choose

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to do so.

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DATED: August 8, 2016

WALKER & PESKIND, PLLC

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By: /s/ Richard K. Walker

Richard K. Walker, Esquire
16100 N. 71st Street, Suite 140
Scottsdale, Arizona 85254-2236
Attorneys for Defendant Maricopa County,
Arizona

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CERTIFICATE OF SERVICE

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I hereby certify that on August 8, 2016, I electronically filed Defendant Maricopa

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Countys Response to Plaintiffs Supplemental Memorandum Regarding Compensation

Pursuant to the Courts Order of July 22, 2016, with the Clerk of the Court for filing and

uploading to the CM/ECF system, which will send notification of such filing to all parties

of record.

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/s/ Jennifer Grisham

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