CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey (Cal Bar #58232) Carlos Holguin (Cal Bar #90754) 256 S. Occidental Blvd. Los Angeles, CA 90057 Telephone: (213) 388-8693 ext. 104 Facsimile: (213) 386-9484 Email: pschey@centerforhumanrights.org crholguin@centerforhumanrights.org
H. Michael Clyde (AZ BAR 09647) PERKINS COIE BROWN & BAIN P.A. 2901 N. Central Avenue, Suite 2000 Phoenix, AZ 85012-2788 Telephone: (602) 351-8335 Facsimile: (602) 648-7035 Email: mclyde@perkinscoie.com
Attorneys for Plaintiffs
(Plaintiffs’ Attorneys continued on next page)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

WE ARE AMERICA/SOMOS AMERICA COALITION OF ARIZONA; ARIZONA HISPANIC COMMUNITY FORUM; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; FRIENDLY HOUSE; RAUL VIXTHA BOMAYE; JAVIER ROMERO ENCINO; ROSA FLOR DIAZ GOD1NES; ADRIANA RODRIGUEZ ESPIRITU; JUAN MANUEL CORTEZ CUELLAR; HUGO ENRIQUE SANCHEZ DIEGO; STATE REPRESENTATIVE KYRSTEN SINEMA; STATE REPRESENTATIVE STEVE GALLARDO;

Case No. COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
[CLASS ACTION]

STATE REPRESENTATIVE DAVID LUJAN; PROFESSOR CECILIA MENJIVAR; PROFESSOR LADAWN HAGLUND
Plaintiffs,
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MARICOPA COUNTY BOARD OF SUPERVISORS, governing body for Maricopa County, a political subdivision of the State of Arizona: FULTON BROCK, DON STAPLEY, ANDREW KUNASEK, MAX W. WILSON, and MARY ROSE WILCOX, Members of the Maricopa County Board of Supervisors; ANDREW THOMAS, Maricopa County Attorney; JOSEPH ARPAIO, Maricopa County Sheriff,
Defendants.
Plaintiffs counsel continued:
Ray Velarde (TX Bar # 20539950) LULAC National Legal Adviser 1216 Montana E1 Paso, TX 79902 Telephone: (915) 373-6003 Email: rayvelarde2003 @yahoo.corn
Dan Ballecer (Az Bar #15616) 1095 E. Indian School Road Phoenix, AZ 85014 Telephone: (602) 277-0044 Facsilnile: (602) 277-1097 Email: dballecer@cox.net

Antonio Bustamante (Az Bar #7256) 1001 N. Central Avenue Suite 660 Phoenix, AZ 85014 Telephone: (602) 277-0044 Facsimile: (602) 277-1097 Email: antonio_b@qwest.net
Plaintiffs allege as follows: PRELIMINARY STATEMENT
1. This is an action for declaratory and injunctive relief to enjoin Maricopa County and its agents, Maricopa County Attorney Andrew Thomas and the Maricopa County Sheriff Joseph Arpaio, from regulating international migration, a matter of exclusive federal prerogative. As more fully alleged below, defendants have embraced a policy and practice to arrest, detain, and prosecute non-smuggler migrants for conspiring to transport themselves through Maricopa County ("Maricopa Migrant Conspiracy Policy" or "MMCP"). Defendants’ sole legal basis for said policy and practice is an ultra vires interpretation of Ariz. Rev. Star. § 13-2319, a statute enacted to impose criminal penalties on professional smugglers who transport migrants not authorized to be in the United States under federal law. Plaintiffs challenge the Maricopa Migrant Conspiracy Policy on multiple grounds: inter alia, (1) that it is preempted pursuant to U.S. Const. Article I, § 8, cl. 4 (the federal power to establish a uniform rule of naturalization) and cl. 3 (the federal power to regulate commerce with foreign nations); (2) that it violates the Due Process Clause of the Fourteenth Amendment by failing to provide reasonable notice of what conduct is proscribed; (3) that it violates Fourteenth Arnendment’s bar against unreasonable searches and seizures inasmuch as defendants arrest persons without
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probable cause to believe they have committed any cognizable criminal offense; and (4) that it is inconsistent with and violates Ariz. Rev. Star. § 13-2319 (a pendent state claim).
2. In purpose and effect, the Maricopa Migrant Conspiracy Policy is a scheme to control international borders: specifically, to deter unauthorized migrants from entering, passing through, or remaining in Maricopa County by (1) detecting those persons believed to be not ’~lawfully in the state" who are being transported for gain; (2) arresting such persons; and (3) incarcerating and charging them with the felony of conspiring to transport themselves. In addition to regulating international migration, defendants THOMAS and ARPAIO adopted the Maricopa Migrant Conspiracy Policy to garner local and national media attention and further their political fortunes by impugning federal authorities’ ability and resolve to control international migration.
JURISDICTION 3. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 (federal question jurisdiction) and 1343(3) and (4) (jurisdiction over actions for violation of civil rights secured by 42 U.S.C. § 1983). Plaintiffs’ action for declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202. Jurisdiction over plaintiffs’ pendent state law claim is proper under UnitedMine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966), because plaintiffs’ state law and federal claims derive from a common nucleus of operative fact such that both state law and federal claims would ordinarily be expected to be tried in one judicial proceeding. 4. Venue is properly in this court pursuant to 28 U.S.C. § 1391(b) and (e)(1), (2), and (4), because the acts complained of occurred in this district, several of the plaintiffs
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and defendants reside in this district, and no real property is involved in this action. PARTIES
PLAINTIFFS 5. Plaintiff WE ARE AMERICA/SOMOS AMERICA COALITION OF ARIZONA ("WAA/SAC") is a coalition of community-based organizations in Maricopa County, Arizona. The purposes of WAA/SAC include protecting and promoting fair and lawful public policies toward migrants, preserving the lawful roles of state and federal governments with respect to regulation of international migration, ensuring compliance with federal laws and the United States Constitution by local Government agencies in the treatment of migrants, and delivering social services and humanitarian assistance to migrants. The Maricopa Migrant Conspiracy Policy is diverting the limited resources of WAA/SAC and its members, thus making their work and achievement of their goals more difficult and costly. WAA/SAC members are expending time and resources delivering services to migrants charged pursuant to the Maricopa Migrant Conspiracy Policy. WAA/SAC’s delivering services to incarcerated migrants charged under the unlawful Maricopa Migrant Conspiracy Policy is more difficult, time-consuming, and expensive than is its delivering like services to undetained and uncharged migrants. In addition, WAA/SAC is providing services to migrants detained under the Maricopa Migrant Conspiracy Policy that it does not normally provide undetained migrants, including cash assistance to ameliorate the hardships of illegal confinement. 6. Plaintiff ARIZONA HISPANIC COMMUNITY FORUM (AHCF) is a community-based membership organization located in Maricopa County, Arizona. The
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mission of the AHCF is to empower Hispanic communities, to advocate for Hispanic communities before public and private policy-making bodies, to promote and preserve Hispanic history, language, cultures, customs, and contributions, to increase opportunities and improve the quality of life for Hispanics, to defend, preserve and protect rights of Hispanics under the law, to promote equal access and fair treatment for Hispanics, and to provide needy Hispanics charitable assistance. The Maricopa Migrant Conspiracy Policy is diverting the limited resources of AHCF and its members, thus making their work and achievement of their goals more difficult and costly. AHCF members are expending time and resources delivering services to migrants unlawfully detained in Maricopa County jail facilities pursuant to the Maricopa Migrant Conspiracy Policy. AHCF’s delivering services to incarcerated migrants is difficult, costly, and time-consuming. In addition, AHCF is providing services to migrants detained under the Maricopa Migrant Conspiracy Policy that it does not normally provide, including cash assistance to ameliorate the hardships of their illegal confinement and to permit them to communicate telephonically with their family members.
7. Plaintiff LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) is a community’-based membership organization with a local chapter located in Phoenix, Arizona. LULAC is the largest and oldest Hispanic organization in the United States. Its primary goals include promoting and protecting the legal, political, social, and cultural interests of Latinos in the United States. The unlawful Maricopa Migrant Conspiracy Policy is diverting the limited resources of LULAC and its members, thus making their work and achievement of their goals more difficult and costly. LULAC is expending time

and resources delivering services to migrants detained in Maricopa County jail facilities pursuant to the Maricopa Migrant Conspiracy Policy. LULAC members have visited detained migrants facing criminal charges under the Maricopa Migrant Conspiracy Policy to offer them encouragement and moral support, and have deposited money into migrants’ jail accounts to help them communicate with their families while they are incarcerated.
8. Plaintiff FRIENDLY HOUSE is a non-profit organization located in Phoenix, Arizona. FRIENDLY HOUSE’s purposes include providing social and legal services to immigrants, including counseling and therapy for immigrants who have suffered traumatic experiences or abuse, and legal assistance to immigrants applying for lawful immigration status. The Maricopa Migrant Conspiracy Policy is diverting the limited resources of FRIENDLY HOUSE, thus making its work and achievement of its goals more difficult and costly. FRIENDLY HOUSE is expending time and resources delivering services to migrants criminally charged pursuant to the unlawful Maricopa Migrant Conspiracy Policy. FRIENDLY HOUSE has provided services to plaintiffs JUAN MANUEL CORTEZ CUELLAR and HUGO ENRIQUE SANCHEZ DIEGO, each of whom is suffering direct and personal injury as a result of the Maricopa Migrant Conspiracy Policy in that they were arrested, incarcerated, and are being prosecuted pursuant to and in furtherance of said Policy, as alleged herein.
9. Plaintiffs RAUL VIXTHA-BOMAYE, JAVIER ENCINO-ROMERO, ROSA FLOR DIAZ-GODINES and ADRIANA RODRIGUEZ-ESPIRITU are citizens and nationals of Mexico. Pursuant to the Maricopa Migrant Conspiracy Policy, in or about September 2006, defendants arrested, detained, and charged each of them with conspiracy to violate
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Ariz. Rev. Star. § 13-2319. Defendants detained them--Mr. VIXTHA-BOMAYE and Mr. ENC1NO-ROMERO in Durango Jail, and Ms. DIAZ-GODINES and Ms. RODRIGUEZESPIRITU in Estrella Jail--pending resolution of conspiracy criminal charges against them. None of these individuals has ever before been charged or convicted of any criminal offense. On information and belief, defendants turned plaintiffs VIXTHABOMAYE and ENC1NO-ROMERO over to officers of the United States Immigration and Customs Enforcement ("ICE") who then removed them from the country wl~ile defendants’ criminal charges remained pending against them. Plaintiffs Ms. DIAZGODINES and Ms. RODRIGUEZ-ESPIRITU have been incarcerated by defendants for approximately three months pursuant to the Maricopa Migrant Conspiracy Policy
10. Plaintiffs JUAN MANUEL CORTEZ-CUELLAR and HUGO ENRIQUE SANCHEZ-DIEGO are citizens and nationals of Mexico; each of them has resided in the United States for approximately 17 years. Pursuant to the Maricopa Migrant Conspiracy Policy, in late May 2006, defendants arrested, detained, and charged each of them with conspiracy to violate Ariz. Rev. Stat. § 13-2319. None of these individuals has ever before been arrested for or charged with any criminal offense. Defendants released plaintiffs CORTEZ-CUELLAR and SANCHEZ DIEGO on bail in early August 2006; they currently reside in Mesa, Arizona, pending resolution of the defendants’ conspiracy criminal charges against them.
11. Plaintiff KYRSTEN SINEMA is an elected member of the Arizona State House of Representatives, representing District 15, west of Phoenix, Arizona. She resides in and pays taxes to defendant MAR1COPA COUNTY and to the State of Arizona. On
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information and belief, defendants are using state and county taxes paid by plaintiff SINEMA to arrest, detain, prosecute and imprison migrants pursuant to the illegal Maricopa Migrant Conspiracy Policy. Plaintiff SINEMA challenges the Maricopa Migrant Conspiracy Policy as an illegal diversion of taxpayer funds.
12. Plaintiff STEVE GALLARDO is an elected member of the Arizona State House of Representatives, representing District 13, north of Tucson, Arizona. He resides in and pays taxes to the State of Arizona. Defendants are using state taxes paid by plaintiff GALLARDO to arrest, detain, prosecute and incarcerate migrants pursuant to the Maricopa Migrant Conspiracy Policy. Plaintiff GALLARDO challenges the Maricopa Migrant Conspiracy Policy as an illegal diversion of taxpayer funds.
13. Plaintiff STEVE LUJAN is an elected member of the Arizona State House of Representatives, representing District 15, west of Phoenix, Arizona. He resides in and pays taxes to defendant MARICOPA COUNTY and to the State of Arizona. On information and belieE defendants are using state and county taxes paid by plaintiff LUJAN to arrest, detain, prosecute and imprison migrants pursuant to the illegal Maricopa Migrant Conspiracy Policy. Plaintiff LtJJAN challenges the Maricopa Migrant Conspiracy Policy as an illegal diversion of taxpayer funds.
14. Plaintiff CECILIA MENJIVAR is an Associate Professor in the Department of Sociology and the School of Justice and Social Inquiry at Arizona State University. She resides in and pays taxes to defendant MARICOPA COUNTY and to the State of Arizona. Defendants are using state and county taxes paid by plaintiff MENJIVAR to arrest, detain, prosecute and incarcerate migrants pursuant to the Maricopa Migrant Conspiracy Policy.
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Plaintiff MENJIVAR challenges the Maricopa Migrant Conspiracy Policy as an illegal expenditure of taxpayer funds.
15. Plaintiff LADAWN HAGLUND is an Assistant Professor in the School of Justice and Social Inquiry at Arizona State University. She resides in and pays taxes to defendant MARICOPA COUNTY and to the State of Arizona. Defendants are using state and county taxes paid by plaintiff HAGLUND to arrest, detain, prosecute and incarcerate migrants pursuant to the Maricopa Migrant Conspiracy Policy. Plaintiff HAGLUND challenges the Maricopa Migrant Conspiracy Policy as an illegal expenditure of taxpayer funds.
DEFENDANTS 16. Defendant MARICOPA COUNTY BOARD OF SUPERVISORS ("MARICOPA COUNTY") is the governing body for Maricopa County, a political subdivision of the State of Arizona. Both the Maricopa County Attorney and Maricopa County Sheriff are subordinate officials of defendant MARICOPA COUNTY. Defendant MARICOPA COUNTY employs defendants THOMAS and ARPAIO. Defendant MARICOPA COUNTY has acquiesced in, condoned, and through local tax revenues financed the adoption and implementation of the unlawful Maricopa Migrant Conspiracy Policy. 17. Defendant FULTON BROCK is a member of the Maricopa County Board of Supervisors and is named in his official capacity. 18. Defendant DON STAPLEY is a member of the Maricopa County Board of Supervisors and is named in his official capacity.

19. Defendant ANDREW KUNASEK is a member of the Maricopa County Board of Supervisors and is named in his official capacity.
20. Defendant MAX W. WILSON is a member of the Maricopa County Board of Supervisors and is named in his official capacity.
21. Defendant MARY ROSE WILCOX is a member of the Maricopa County Board of Supervisors and is named in his official capacity.
22. Defendant ANDREW THOMAS is the Maricopa County Attorney. As such he is responsible for the enforcement of the Arizona Criminal Code, including prosecuting violations of Ariz. Rev. Stat. § 13-2319. On information and belief, defendant THOMAS devised the Maricopa Migrant Conspiracy Policy and persuaded defendant ARPAIO to implement the detention and arrest aspects of said policy. He is sued in his official capacity.
23. Defendant JOSEPH ARPAIO is the Maricopa County Sheriff and as such is vested with the legal authority and duty to enforce the Arizona Criminal Code, including Ariz. Rev. Stat. § 13-2319. He is sued in his official capacity.
24. Plaintiffs are informed and believe, and on such basis allege, that defendants, their agents, and their employees custo~narily and as a matter of practice or usage, engage in the acts here complained of. Plaintiffs are further informed and believe, and on such basis allege, that defendants, and each of them, are aware of and acquiesce in or encourage their agents and employees in doing the acts here complained of. In doing the acts alleged herein, defendants, and each of them, have acted and will continue to act, under color of state law.
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CLASS ACTION ALLEGATIONS 25. Plaintiffs bring this action as a class action pursuant to Rules 23(a)(1)-(4) and (b)(2) of the Federal Rules of Civil Procedure on behalf of the following class of similarly situated people: All individuals stopped, detained, arrested, incarcerated, prosecuted, or penalized for conspiring to transport themselves, and themselves only, in violation of Ariz. Rev. Star. § 13-2319. 26. The proposed class members will be identifiable from defendants’ records and as of the filing of this Complaint are known to number in the hundreds. The class is so numerous that j oinder of all members is impracticable. The claims of plaintiffs and those of the proposed class members raise common questions of law and fact concerning, inter alia, whether the challenged Maricopa Migrant Conspiracy Policy is an unconstitutional attempt to regulate international borders. These questions are common to the named parties and to the members of the proposed class because defendants have acted and will continue to act on grounds generally applicable to both the named parties and proposed class members. Plaintiffs’ claims are typical of the class claims. 27. The prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications establishing incompatible standards of conduct for defendants. Prosecution of separate actions would also create the risk that individual class members will secure court orders that would as a practical matter be
dispositive of the claims of other class members not named parties to this litigation,
thereby substantially impeding the ability of unrepresented class members to protect their
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interests. 28. Defendants, their agents, employees, and predecessors and successors in office
have acted or refused to act, and will continue to act or refuse to act, on grounds generally applicable to the class, thereby making appropriate injunctive relief or corresponding declaratory relief with respect to the class as a whole. Plaintiffs will vigorously represent the interests of unnamed class members. All members of the proposed class will benefit by the action brought by plaintiffs. The interests of the named plaintiffs and those of the proposed class members are identical. Some of plaintiffs’ counsel have other clients injured by defendants’ challenged practices and therefore have an independent interest in ensuring the lawfulness of defendants’ conduct. Plaintiffs’ counsel include attorneys experienced in federal class action litigation involving constitutional law and the law respecting the rights of foreign nationals in the United States.
STATEMENT OF FACTS 29. On or about September 18, 2006, plaintiffs VIXTHA-BOMAYE, ENC1NOROMERO, DIAZ-GODINEZ and RODRIGUEZ-ESPIRITU were traveling in a van with other individuals on a public highway in or near Phoenix, Arizona. A Peoria Police Officer working with a Maricopa County Deputy Sheriff. Officer Naehrbass #3080, stopped the vehicle, reportedly because the one or more officers observed the vehicle to be traveling at a high rate of speed and the vehicle had an expired registration tag. On information and belief, the vehicle was stopped because pursuant to the Maricopa Migrant Conspiracy Policy, defendant ARPAIO had instructed his deputies to stop vehicles that may be carwing undocumented migrants being transported in Maricopa
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County. 30. The vehicle stopped, and the deputy, sheriff asked the driver several questions.
He then ordered all those in the vehicle, including plaintiffs VIXTHA-BOMAYE, ENCINO-ROMERO, DIAZ-GODINEZ and RODRIGUEZ-ESP1RITU, to exit the vehicle and he further ordered them to sit on the ground by the side of the highway. Although the deputy sheriff had neither probable cause nor reasonable suspicion to believe that any of them had committed any cognizable crime, plaintiffs VIXTHA-BOMAYE, ENCINOROMERO, DIAZ-GODINEZ and RODRIGUEZ-ESPIRITU were from this time onward not free to leave. The deputy sheriff called for backup and continued to detain plaintiffs VIXTHA-BOMAYE, ENCINO-ROMERO, DIAZ-GOD1NEZ and RODRIGUEZ-ESPIRITU without probable cause or reasonable suspicion to believe that any of them had committed any cognizable crime, while he waited for other officers to arrive. Over an hour later and without advising the detainees of their constitutional rights--including but not limited to their right to counsel and against self-incrimination--Maricopa County, Sheriff’s deputies began interrogating each detainee individually, including plaintiffs VIXTHA-BOMAYE, ENCINO-ROMERO, DIAZ-GODINEZ and RODRIGUEZ-ESPIRITU, while continuing to oblige them to sit on the ground. The Maricopa County Sherifffs deputies’ questions were intended to ascertain whether the detainees were migrants who had entered the United States without inspection and were being transported for gain, and accordingly subject to arrest pursuant to the Maricopa Migrant Conspiracy Policy for conspiracy to violation Ariz. Rev. Stat. § 13-2319.
31. At no time did Maricopa County Sheriff’s deputies attempt to obtain
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appropriate confirmation from the United States Department of Homeland Security that plaintiffs VIXTHA-BOMAYE, ENCINO-ROMERO, DIAZ-GODINEZ or RODRIGUEZESPIRITU had previously been convicted of a felony in the United States and deported or left the United States after such conviction. At no time did Maricopa County Sheriff’s deputies develop any reason whatsoever to believe that plaintiffs VIXTHA-BOMAYE, ENCINO-ROMERO, D1AZ-GODINEZ or RODRIGUEZ-ESPIRITU were themselves alien smugglers, or that any of them were transporting or had conspired to transport others for gain. At no time did Maricopa County Sheriff’s deputies have probable cause to believe that plaintiffs VIXTHA-BOMAYE, ENC1NO-ROMERO, DIAZ-GODINEZ or RODRIGUEZESPIRITU had committed any cognizable criminal offense.
32. Nevertheless, acting pursuant defendants’ Maricopa Migrant Conspiracy Policy, the Maricopa County SheriWs deputies arrested plaintiffs VIXTHA-BOMAYE, ENCINO-ROMERO, DIAZ-GODINEZ and RODRIGUEZ-ESPIRITU and transported them to a Maricopa County Sheriff’s station house. At the station house, Maricopa County Sheriff’s deputies again questioned plaintiffs VIXTHA-BOMAYE, ENCINO-ROMERO, DIAZ-GODINEZ and RODRIGUEZ-ESPIR1TU, again without advising any of them of their constitutional rights, including those to counsel and against self-incrimination, and again without attempting to obtain appropriate confirmation from the United States Department of Homeland Security that plaintiffs VIXTHA-BOMAYE, ENC1NOROMERO, DIAZ-GODINEZ or RODRIGUEZ-ESPIRITU had previously been convicted of a felony in the United States and deported or left the United States after such conviction. Maricopa County Sheriff’s deputies eventually booked plaintiffs VlXTHA-BOMAYE,
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ENCINO-ROMERO, DIAZ-GODINEZ and RODRIGUEZ-ESPIRITU into Maricopa County Jail.
33. On September 21, 2006, the Maricopa County Attorney’s Office filed a complaint charging plaintiffs VIXTHAoBOMAYE, ENCINO-ROMERO, DIAZ-GODINEZ and RODRIGUEZ-ESPIRITU, and each of them, with "conspiracy to commit human smuggling": i.e., conspiring to transport themselves, and only themselves, in violation of Ariz. Rev. Stat. § 13-2319. Defendants continue to detain plaintiffs DIAZ-GODINEZ and RODRIGUEZ-ESPIRITU pending trial or other disposition of the charge against them. Defendants turned plaintiffs VIXTHA-BOMAYE and ENCINO-ROMERO over to the U.S. Immigration and Customs Enforcement and they were removed from the country while defendants’ criminal charges against them were still pending. Those charges remain pending and a bench warrant has been or is likely to be issued in the near future to compel their attendance at hearings they are unable to attend unless federal authorities authorize their admission to the United States to appear in the proceedings held pursuant to the challenged Maricopa Migrant Conspiracy Policy.
34. On or about May 22, 2006, plaintiffs CORTEZ-CUELLAR and SANCHEZDIEGO were traveling in a vehicle on or near Old U.S. Highway 80 in Maricopa County, Arizona. Maricopa County Sheriff’s Deputy F. Castorena stopped the vehicle, ostensibly because it carried an expired license plate, but in truth and fact because he suspected that migrants who had entered the United States without inspection were being transported therein, and pursuant to the Maricopa Migrant Conspiracy Policy, defendant ARPAIO had instructed him to detain and arrest such individuals.
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35. Deput5,’ Castorena ordered plaintiff’s CORTEZ-CUELLAR and SANCHEZDIEGO and all other passengers in the vehicle to exit and to sit on the ground. Although the deputy sheriff had neither probable cause nor reasonable suspicion to believe that any of them had committed any cognizable crime, plaintiffs CORTEZ-CUELLAR and SANCHEZ-D1EGO were not free to leave from this time onward. Following this detention and without advising the detainees of their constitutional rights--including but not limited to their right to counsel and against self-incrimination--Maricopa County Sheriff’s deputies began interrogating each detainee individually, including plaintiffs CORTEZ-CUELLAR and SANCHEZ-DIEGO, while continuing to oblige them to sit on the ground. The Maricopa Count5,’ Sheriff’s deputies’ questions were intended to ascertain whether the detainees were migrants who had entered the United States without inspection and were being transported for gain, and accordingly subject to arrest pursuant to the Maricopa Migrant Conspiracy Policy for conspiracy to violation Ariz. Rev. Stat. § 13-2319.
36. At no time did Maricopa County Sheriff’s deputies attempt to obtain appropriate confirmation from the United States Department of Homeland Security that plaintiffs CORTEZ-CUELLAR or SANCHEZ-DIEGO had previously been convicted of a felony in the United States and deported or left the United States after such conviction. At no time did Maricopa County Sherifffs deputies develop any reason whatsoever to believe that plaintiff’s CORTEZ-CUELLAR or SANCHEZ-D1EGO were themselves alien smugglers, or that either of them was transporting or had conspired to transport others for gain. At no time did Maricopa County Sheriff’s deputies have probable cause to believe
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that plaintiffs CORTEZ-CUELLAR or SANCHEZ-DIEGO had committed any cognizable criminal offense.
37. Approximately one hour later, Maricopa County Sheriff’s deputies arrested plaintiffs CORTEZ-CUELI,AR and SANCHEZ-DIEGO and transported them to a station house in or near Gila Bend, Arizona. At the station house, Maricopa County Sheriff’s deputies further detained and questioned plaintiffs CORTEZ-CUELLAR and SANCHEZDIEGO without attempting to obtain appropriate confirmation from the United States Department of Homeland Security that plaintiffs CORTEZ-CUELLAR or SANCHEZDIEGO had previously been convicted of a felony in the United States and deported or left the United States after such conviction. Following interrogation, Maricopa County Sheriff’s deputies booked plaintiffs CORTEZ-CUELLAR and SANCHEZ-DIEGO into a Maricopa County" jail.
38. On May 24, 2006, the Maricopa County Attorney’s Office filed a complaint charging plaintiffs CORTEZ-CUELLAR and SANCHEZ-DIEGO, and each of them, with "’conspiracy to commit human smuggling": i.e., conspiring to transport themselves, and only themselves, in violation of Ariz. Rev. Stat. § 13-2319. On June 1, 2006, Maricopa County grand jury issued an indictment against plaintiffs CORTEZ-CUELLAR and SANCHEZ-DIEGO similarly charging them. In early August 2006, after incarcerating them for over two months, defendants released plaintiffs CORTEZ-CUELLAR and SANCHEZ-DIEGO on bail pending trial or other disposition of the charges against them.
39. Ariz. Rev. Star. § 13-2319, provides in relevant part as follows:
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A. It is unlawful for a person to intentionally engage in the smuggling of human beings for profit or commercial purpose ..... C. For the purposes of this section "smuggling of human beings" means the transportation or procurement of transportation by a person or an entity that knows or has reason to know that the person or persons transported or to be transported are not United States citizens, permanent resident aliens or persons otherwise lawfully in this state. 40. On or about September 29, 2005, defendant THOMAS issued a statement declaring that, in his view, § 13-2319 proscribes not only smugglers’ transporting persons for profit and procuring such transportation for others, but also non-smuggler migrants’ agreeing to pay for transport or on whose behalf others had agreed to pay for transport. According to defendant THOMAS, "If [law enforcement has] probable cause to believe that illegal immigrants have intentionally allowed themselves to be smuggled by a paid human smuggler... [law enforcement] may arrest the illegal immigrants as well as the coyote." Maricopa County Attorney Opinion 2005-002, Sept. 29, 2005. Defendant THOMAS asserted that he would thenceforth prosecute "illegal immigrants" who were being transported for gain by a third party for conspiring to violate § 13-2319: ’~When there is probable cause to believe illegal immigrants have violated [§ 13-2319] by committing a preparatory offense to that law under the state’s criminal code, the illegal immigrants may be arrested and charged with these crimes ..." Id. This position commenced the challenged Maricopa Migrant Conspiracy Policy.
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41. On information and belief, prior to initiating the Maricopa Migrant Conspiracy Policy~ defendant THOMAS did not research or assign anyone to research whether his policy violated federal law, nor did he evaluate in any measurable way the cost to taxpayers of his new policy, nor did he evaluate the requirements of 8 U.S.C. § 1357(g) which establishes a procedure by which state officers may assist federal efforts to regulate international migration.
42. Section 13-2319 was added in 2005 by H.B. 2539. The bill’s sponsor, Rep. Jonathan Paton, was clear about its purpose. The minutes of the House Judiciary Committee record the following:
Mr. Paton advised this legislation is the result of discussions with a number of his constituents. He said there is a growing human tragedy along Arizona’s southern border. This bill attempts to deal with both situations of people coming into this country looking for work as well as people who are living in the path of immigration. People who are involved in trafficking, referred to as coyotes, are operating with impunity in this area and there is a culture of lawlessness growing up around that. He stated that lawlessness is compromising national security and exploiting people who are trying to enter into this country .... Mr. Paton stated that there are no state laws against the actual coyote smuggling activity. This bill attempts to give local law enforcement the ability to stop this activity from happening and to prosecute on both the federal and state level. He reminded Members that the U.S. Attorney’s Office in southern Arizona has not been prosecuting coyotes.
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Minutes of the Committee on Judiciary re: H.B. 2539, Arizona House of Representatives, 47th Legislature, First Regular Session (February 10, 2005)(emphasis added). The purpose of § 13-2319 is the prosecution of alien smugglers --"actual coyotes"--and not "people who are coming into this country looking for work." The legislature conceived of § 13-2319 as providing a state analogue to federal law against alien smuggling, 8 U.S.C. § 1324.
43. On March 6, 2006, the Associated Press reported lawmakers’ astonishment at defendants’ adoption of the Maricopa Migrant Conspiracy Policy:
[T]wo of the law’s authors said Friday that it was never their intent for illegal immigrants to be prosecuted under the law. "This is something the county attorney came up with himself," said Rep. Jonathon Paton, R-Tucson. "I never intended that immigrants would be arrested... That’s not what I sold the bill as, and that’s not what our attorneys at the time told us. It was pretty clear." When Sen. Timothy Bee, R-Tucson, was contacted about the arrests, he hadn’t heard Thomas was seeking to charge the immigrants under the human smuggling law. "Wow,’~ he said. "That’s the first time I’ve seen that interpretation of the law. The law was designed to go after those who are involved in drug trafficking and human trafficking for a profit." .... Other lawmakers questioned the logic of prosecuting illegal immigrants under the human smuggling law.
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"I don’t think it would be wise public policy to fill up our prisons with people whose only offense is that they paid someone to get into the country, and otherwise haven’t broken any laws in this state," said Rep. Bill Brotherton, D-Phoenix, who supported the human smuggling bill last year. "Imagine this being done on a wide scale. You’re talking about putting potentially thousands or tens of thousands of new people into the prison system." 44. Defendants’ construing Arizona law as criminalizing conspiracy to transport oneself is arbitrary and unreasonable. On information and belief, plaintiffs allege that defendants THOMAS and ARPAIO are the only two law enforcement officers in the nation who have embarked on a policy and practice to arrest and prosecute alleged undocumented immigrants for "conspiracy" to transport themselves. To the extent the Maricopa Migrant Conspiracy Policy is consistent with § 13-2319 and related Arizona statutes, those statutes fail to provide fair warning of the act which they make punishable as a crime. 45. Nevertheless, on March 2, 2006, in furtherance of the Maricopa Migrant Conspiracy Policy, the Maricopa County Sheriff’s deputies stopped, detained, and arrested 54 individuals on suspicion of conspiring to transport themselves in violation of § 13-2319. With the exception of one or two individuals whom defendants reasonably believed to be alien smugglers, said stops, detentions, and arrests ~vere conducted without probable cause to believe that any of the persons seized had committed or were committing a cognizable criminal offense because nowhere does Arizona law make it a crime to conspire to transport oneself in violation of § 13-2319.
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46. On or about March 13.2006, at the behest of defendant THOMAS and agents of defendant Maricopa County Attorney’s Office, a Maricopa County Grand Jury indicted 48 of the individuals arrested on March 2~ 2006, for conspiracy to transport themselves in violation of § 13-2319. None of the individuals thus indicted were charged with actually violating § 13-2319, nor were any of them accused of transporting others for gain, or of doing anything beyond agreeing to pay for transport through Maricopa County or being provided transport after someone else paid for the transport.
47. Thereafter, defendant ARPAIO organized and widely publicized a civilian "posse," whose members assist his deputies ferret out and arrest migrants in Maricopa County being transported by smugglers. Defendants and their employees and agents have since arrested, incarcerated, and charged with conspiracy to smuggle themselves, several hundred individuals.
48. Defendants THOMAS and ARPAIO conspired to initiate and implement the Maricopa Migrant Conspiracy Policy in order to regulate international migration and because, as defendant THOMAS stated, defendants are "frustrated ... [with the] problem of illegal immigration that the government [of Mexico] is directly fomenting," and because, as defendant Arpaio stated, "It]here are [too] many illegals trying to make it into [Maricopa] county ..." Gary Grado, Thomas Rips Mexico in Illegals’ Arrest Case, EAST VALLEY TRIBUNE (MESA, AZ), March 25, 2006 (hereinafter "March 25, 2006, Thomas Rips Mexico"); Maricopa County SherifI~s Office Press Release, Sheriff Calls out Posse
to Stem Illegal Immigration into Maricopa Count, May 2, 2006 (hereinafter "May 2,
2006 Sheriff Press Release"). The challenged Maricopa Migrant Conspiracy Policy is an
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attempt by defendants to control undocumented migration, a purely federal function, by arresting and punishing suspected undocumented migrants who enter, pass through, or re~nain in Maricopa County.
49. The Maricopa Migrant Conspiracy Policy conflicts with and stands as an obstacle to federal regulation of international migration. Federal immigration laws and policies allow multiple categories of migrants to remain in the United States while they apply for lawful status despite having entered without inspection, including, for example, laws permitting migrants to apply for U visas as victims of violent crimes, T visas as the victims of trafficking, asylum as the victims of persecution, or adjustment of status based upon their eligibility for certain types of family or employment-based visas.
50. Under the Maricopa Migrant Conspiracy Policy, non-smuggler immigrants with a legal right to remain in the United States while they seek formal lawful status are as culpable for conspiring to violate Ariz. Rev. Stat. § 13-2319--and as liable to be detained and incarcerated for so conspiring--as are persons who are ineligible for such benefits. The Maricopa Migrant Conspiracy Policy actually conflicts with federal law by
(i) directing the detention, arrest, prosecution and imprisonment of individuals who do not have formal lawful status, but who may be eligible for lawful immigration status and who under federal law are allowed to remain in the United States while they prepare applications for lawful status and while such applications are processed; and
(ii) affording no or grossly inadequate procedural safeguards in determining an arrestee’s federal immigration status or right to be in the United States.
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51. Federal law establishes a procedure by which state officers and employees may assist federal efforts to regulate international migration. 8 U.S.C. § 1357(g) provides in pertinent part:
(1) ... IT]he Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be. qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States ... may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law. (2) An agreement under this subsection shall require that an officer or employee of a State or political subdivision of a State performing a function under the agreement shall have knowledge oE and adhere to, Federal law relating to the function, and shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws. (3) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General .... (5) With respect to each officer or employee of a State or political subdivision who is authorized to perform a function under this subsection, the specific powers and duties that may be, or are required to be, exercised or performed by the individual,
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the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual, shall be set forth in a written agreement between the Attorney General and the State or political subdivision. 52. Defendants have neither sought nor received adequate training regarding the enforcement of relevant Federal immigration laws. In carrying out the Maricopa Migrant Conspiracy Policy, defendants are not subject to the direction or supervision of the Attorney General or the Department of Homeland Security, nor is there any written agreement between defendants and the Attorney General or the Department of Homeland Security authorizing the Maricopa Migrant Conspiracy Policy. 53. On information and belief, defendants have also arrested and detained class members for prolonged periods without charge, without bringing them before a neutral and detached magistrate for a determination of probable cause, and without affording them counsel or a speedy trial. Defendants have attempted to justify said unlawful seizures by falsely claiming that the federal Immigration and Customs Enforcement ("ICE"), a bureau of the Department of Homeland Security ("DHS"), has placed "holds" on such individuals authorizing their detention under federal authority when in truth and fact ICE had placed no such "holds" or otherwise authorized defendants to detain class members. By letter dated July 6, 2006, ICE advised defendant ARPAIO that such pretextual detentions were unlawful: It has come to the attention of the U.S. Immigration and Customs Enforcement (ICE) that a significant number of inmates within the Maricopa County jail system
- 25 -

have booking records that reflect they are subject to an "ICE HOLD", although they have not been interviewed by an officer who is authorized to determine alienage ... The only officers authorized to make a determination as to alien status are federal officers vested with authority under the Immigration and Nationality Act [INA] ... A federal officer must base the determination of status upon either an interview of the subject or through fingerprint comparison with existing administrative immigration records. Furthermore, only federal officers ... can place detainees pursuant to the INA. Detention and Removal (DRO) transport officers have been advised to pick up only those inmates that are the subject of a properly placed immigration hold ... The noting of"ICE HOLD" in the record ... has already created some issues, placing both the DRO transport staff and your jail staff in difficult positions. Unless corrected, it can lead to friction between agencies and may manifest itself at a time when either officer safety or agency professionalism is out at risk ... [and] risk[s] ... charges of discrimination or unlawful detention being brought by individuals held on the basis of an "ICE HOLD" inappropriately placed by other than an authorized federal officer. 54. On information and belief, defendants have engaged in racial profiling to stop and detain class members, unduly burdened class members’ ability to communicate and meet with legal counsel while detained, caused class members to suffer humiliating, degrading, and unlawful jail conditions, and have knowingly caused some class members to enter guilty pleas to felony charges solely to end their lengthy unlawful incarceration
- 26 -

and transferred other class members to federal authorities knowing that they would be

removed from the count~ while defendants’ criminal charges remain pending.

IRREPARABLE INJURY

55. Defendants are engaged in a continuing pattern of illegal conduct in

performing the acts and omissions herein complained of. As a result, plaintiffs and the

class they seek to represent have suffered and will continue to suffer recurrent irreparable

injury for which they have no adequate remedy at law. If the relief prayed for is not

granted, plaintiffs and the class they seek to represent will continue to be arrested,

detaine& and prosecuted pursuant to an unconstitutional and unlawful policy. Defendants

will continue their challenged policies and practices unless and until this Court enjoins

them from doing so.

FIRST CLAIM FOR RELIEF

[Federal Preemption]

56. Plaintiffs reallege and incorporate by reference the allegations set out in

paragraphs 1 through 55, inclusive, of this Complaint as though fully set forth here.

57. The Maricopa Migrant Conspiracy Policy is an impermissible attempt by state

actors to regulate immigration, and as such unlawfully usurps the federal government’s

exclusive power to regulate immigration in violation of the United States Constitution

Art. I, § 8, cl. 4 (the federal power to establish a uniform rule of naturalization); the

United States Constitution Art. I, § 8, cl. 3 (the federal power to regulate commerce with

foreign nations); and the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq.

("INA").

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58. The Maricopa Migrant Conspiracy Policy actually conflicts and is inconsistent with federal law, including 8 U.S.C. §§ 1252c, 1324, and 1357, as well as federal statutes that establish multiple categories of immigrants who have not been lawfully admitted to the country, but who are nevertheless authorized to remain here while they pursue lawful immigration status, including, but not limited to, 8 u.S.C. §§ 1101(a)(42) and 1157 (refugee status); 1101 (a)(42)(A) and 1158 (asylee status); 1231 (b)(3) (withholding of removal); § 1229b (cancellation of removal); 1101 (a)(15)(U) and 1184(p) (victims of violent crimes status); 1101 (a)(15)(T) and 1184(o) (victims of trafficking status); and 1154 and 1229b(b)(2) (battered immigrant women and children status).
SECOND CLA1M FOR RELIEF IUnlawful Search and Seizure: violation of 42 U.S.C. § 1983] 59. Plaintiffs reallege and incorporate by reference the allegations set out in paragraphs 1 through 55, inclusive, of this Complaint as though fully set forth here. 60. The Maricopa Migrant Conspiracy Policy violates the Fourth Amendment’s protection against unreasonable searches and seizures because -(a) Arizona law does not criminalize conspiracy to transport oneself, and defendants’ stopping, detaining, and arresting plaintiffs and their class members as alleged herein is therefore without reasonable suspicion or probable cause to believe they have committed any cognizable crime; (b) even if Arizona law criminalized conspiracy to transport oneself, defendants unlawfully detain or arrest plaintiffs and class members without probable cause to believe that they have violated Arizona law and question plaintiffs
- 28 -

and class members regarding their alleged violation of Arizona law without providing adequate Miranda warnings before such questioning takes place; and (c) defendants, their officers and agents are not trained or qualified to determine whether migrants are "lawfully within the state" for purposes of determining probable cause to arrest them.
THIRD CLAIM FOR RELIEF [Denial of Due Process; violation of 42 U.S.C. 9 1983] 61. Plaintiffs reallege and incorporate by reference the allegations set out in paragraphs 1 through 55, inclusive, of this Complaint as though fully set forth here: 62. To the extent the Maricopa Migrant Conspiracy Policy is consistent with Ariz. Rev. Stat. 99 13-2319 and 13-1003, said statutes deny plaintiffs and their class members due process of law in violation of the Fourteenth Amendment to the United States Constitution, and to the extent the Maricopa Migrant Conspiracy Policy is inconsistent with Ariz. Rev. Stat. 99 13-2319 and 13-1003, said Policy denies plaintiffs and their class members due process of law in violation of the Fourteenth Amendment to the United States Constitution, by -(a) failing to provide lair warning of the act which is made punishable as a crime, (b) failing to explain or define when a person is not "lawfully in the state,"
- 29 -

(c) pernfitting and facilitating plaintiffs’ and class members’ removal from the United States before they can defend against defendants’ conspiracy criminal charges. FOURTH CLAIM FOR RELIEF
[Pendent State Claim: Violation of Ariz. Rev. Stat. §§ 13-2319 and 13-1003] 63. Plaintiffs reallege and incorporate by reference the allegations set out in paragraphs 1 through 55~ inclusive, of this Complaint as though fully set forth here. 64. The Maricopa Migrant Conspiracy Policy conflicts with and is not authorized by Ariz. Rev. Stat. §§ 13-2319 and 13-1003, ~vhich were not intended to and do not impose criminal penalties against migrants transported by smugglers for gain.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully pray-that this Court -1. Assume jurisdiction over this action; 2. Order that plaintiffs may maintain this action as a class action pursuant to Rule 23, Federal Rules of Civil Procedure; 3. Declare that the Maricopa Migrant Conspiracy Policy -(a) constitutes an unconstitutional program of state regulation of international
migration; (b) actually conflicts with the federal government’s regulation of international
migration;
- 30 -

(c) violates plaintiff’s’ rights under the Fourth and Fourteenth Amendments to

freedom from unreasonable searches and seizures and timely Miranda

warnings;

(d) violates plaintiff’s’ rights under the Eourteenth Amendment to due process

of law~ and

(e) is inconsistent with and violative of Ariz. Rev. Stat. §§ 13-2319 and 13-

1003~

4. Issue preliminary, and permanent injunctions restraining defendants, their

agents, employees, and successors in office from further implementing the Maricopa

Migrant Conspiracy Policy~

5. Award plaintiffs their costs of suit and attorney’s fees pursuant to 42 U.S.C. §

1988(b); and

6. Grant such further relief as the Court deems just.

Dated: November 21, 2006.

PETER A. SCHEY CARLOS R. HOLGUfN CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW

H. MICHAEL CLYDE PERKINS COlE BROWN & BAIN P.A.

RAY VELARDE LULAC NATIONAL LEGAL ADVISER

DAN BALLECER

ANTON10 B U STAMANTE

- 31 -

91004-0032/LEGAL 12548482.1

PETER A. SCHEY
/s/H. Michael Clyde H. MICHAEL CLYDE Attorneys Jor Plaintiffs

- 32 -

 
 Case 2:06-cv-02816-RCB Document 45 Filed 10/12/07 Page 1 of 31

1 CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW

2

Peter A. Schey (58232) pshey@centerforhumanrights.org

3

Carlos Holguin (90754) crholguin@centerforhumanrights.org

4 256 S. Occidental Blvd.

5

Los Angels, CA 90057 Telephone: 213.388.8693 ext. 104

6 Facsimile: 213.386.9484

7 H. Michael Clyde (009647)

8

MClyde@perkinscoie.com Perkins Coie Brown & Bain P.A.

9

2901 N. Central Avenue, Suite 2000 Phoenix, AZ 85012-2788

10 Telephone: 602.351.8000

11 Facsimile: 602.648.7000

12

Attorneys for Plaintiffs (Plaintiffs' Attorneys continued on page 2)

13 UNITED STATES DISTRICT COURT
14 DISTRICT OF ARIZONA
15

16

WE ARE AMERICA/SOMOS AMERICA COALITION OF ARIZONA; ARIZONA

No. CV06-2816-PHX-RCB

17 HISPANIC COMMUNITY FORUM;

LEAGUE OF UNITED LATIN AMERICAN

18 CITIZENS; FRIENDLY HOUSE; RAUL

19

VIXTHA BOMAYE; JAVIER ROMERO ENCINO; ROSA FLOR DIAZ GODINES;

20 ADRIANA RODRIGUEZ ESPIRITU; JUAN

MANUEL CORTEZ CUELLAR; HUGO

21 ENRIQUE SANCHEZ DIEGO; STATE

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF [CLASS ACTION] Assigned to Hon. Robert C. Broomfield

22

REPRESENTATIVE KYRSTEN SINEMA; STATE REPRESENTATIVE STEVE

23 GALLARDO; STATE REPRESENTATIVE, DAVID LUJAN; PROFESSOR CECILIA
24 MENJIVAR; PROFESSOR LADAWN

25 HAGLUND, Plaintiffs,
26 - vs -

27 MARICOPA COUNTY BOARD OF

28 SUPERVISORS, GOVERNING BODY FOR MARICOPA COUNTY, A POLITICAL

SUBDIVISION OF THE STATE OF

ARIZONA; FULTON BROCK, DON

Case 2:06-cv-02816-RCB Document 45 Filed 10/12/07 Page 2 of 31

1 STAPLEY, ANDREW KUNASEK, MAX W.

2

WILSON, AND MARY ROSE WILCOX, MEMBERS OF THE MARICOPA COUNTY

3

BOARD OF SUPERVISORS; ANDREW THOMAS, MARICOPA COUNTY

4 ATTORNEY; JOSEPH ARPAIO,

5 MARICOPA COUNTY SHERIFF,

6

Defendants.

7 Plaintiffs’ counsel continued:

8 Ray Velarde (TX Bar #20539950)
9 LULAC National Legal Adviser

10

1216 Montana El Paso, TX 79902

11 Telephone: (915) 373-6003 Email:rayvelarde2003@yahoo.com
12

13

Dan Ballecer (AZ Bar #15616) 1095 E. Indian School Road

14 Phoenix, AZ 85014 Telephone: (602) 277-0044

15 Facsimile: (602) 277-1097

16 Email: dballecer@cox.net

17

Antonio Bustamante (AZ Bar #7256) 1001 N. Central Avenue Suite 660

18 Phoenix, AZ 85014

19

Telephone: (602) 277-0044 Facsimile: (602) 277-1097

20 Email: antonio_b@quest.net

21 Attorneys for Plaintiffs

22

23

24

25

26

27

28

Amended Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

Case 2:06-cv-02816-RCB Document 45 Filed 10/12/07 Page 3 of 31

1

Plaintiffs allege as follows:

2

PRELIMINARY STATEMENT

3

1. This is an action for declaratory and injunctive relief to enjoin Maricopa County

4

5 and its agents, Maricopa County Attorney Andrew Thomas and the Maricopa County

6 Sheriff Joseph Arpaio, from regulating international migration, a matter of exclusive

7 federal prerogative. As more fully alleged below, defendants have embraced a policy and

8 practice to arrest, detain, and punish non-smuggler migrants for conspiring to transport
9 themselves through Maricopa County (“Maricopa Migrant Conspiracy Policy” or 10 11 “MMCP”). Defendants’ sole legal basis for said policy and practice is an ultra vires
12 interpretation of Ariz. Rev. Stat. § 13-2319, a statute enacted to impose criminal penalties

13 on professional smugglers who transport migrants not authorized to be in the United States

14 under federal law. Plaintiffs challenge the Maricopa Migrant Conspiracy Policy on multiple
15 grounds: inter alia, (1) that it is preempted pursuant to U.S. Const. Article I, § 8, cl. 4 (the 16
federal power to establish a uniform rule of naturalization) and cl. 3 (the federal power to 17
18 regulate commerce with foreign nations); (2) that it violates the Due Process Clause of the

19 Fourteenth Amendment by failing to provide reasonable notice of what conduct is

20 proscribed; (3) that it violates the Fourteenth Amendment’s bar against unreasonable
21 searches and seizures inasmuch as defendants arrest persons without probable cause to 22
believe they have committed any cognizable criminal offense; and (4) that it is inconsistent 23 24 with and violates Ariz. Rev. Stat. § 13-2319 (a pendent state claim).

25

2. In purpose and effect, the Maricopa Migrant Conspiracy Policy is a scheme to

26 control international borders: specifically, to deter unauthorized migrants from entering,
27 passing through, or remaining in Maricopa County by (1) detecting those persons believed 28
to be not “lawfully in the state” who are being transported for gain; (2) arresting such

persons; and (3) incarcerating and punishing them for conspiring to transport themselves. In

Case 2:06-cv-02816-RCB Document 45 Filed 10/12/07 Page 4 of 31

1 addition to regulating international migration, defendants THOMAS and ARPAIO adopted

2 the Maricopa Migrant Conspiracy Policy to garner local and national media attention and

3 further their political fortunes by impugning federal authorities’ ability and resolve to 4 5 control international migration.

6

JURISDICTION

7

3. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 (federal question

8 jurisdiction) and 1343(3) and (4) (jurisdiction over actions for violation of civil rights
9 secured by 42 U.S.C. § 1983). Plaintiffs’ action for declaratory relief is authorized by 28 10 11 U.S.C. §§ 2201 and 2202. Jurisdiction over plaintiffs’ pendent state law claim is proper
12 under United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218

13 (1966), because plaintiffs’ state law and federal claims derive from a common nucleus of

14 operative fact such that both state law and federal claims would ordinarily be expected to
15 be tried in one judicial proceeding. 16
4. Venue is properly in this court pursuant to 28 U.S.C. § 1391(b) and (e)(1), (2), 17
18 and (4), because the acts complained of occurred in this district, several of the plaintiffs and

19 defendants reside in this district, and no real property is involved in this action.

20

PARTIES

21

PLAINTIFFS

22

5. Plaintiff WE ARE AMERICA/SOMOS AMERICA COALITION OF ARIZONA 23

24 (“WAA/SAC”) is a coalition of community-based organizations in Maricopa County,

25 Arizona. The purposes of WAA/SAC include protecting and promoting fair and lawful

26 public policies toward migrants, preserving the lawful roles of state and federal

27 governments with respect to regulation of international migration, ensuring compliance

28

with federal laws and the United States Constitution by local government agencies in the

Amended Complaint

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Case 2:06-cv-02816-RCB Document 45 Filed 10/12/07 Page 5 of 31

1 treatment of migrants, and delivering social services and humanitarian assistance to

2 migrants. The Maricopa Migrant Conspiracy Policy is diverting the limited resources of
3 WAA/SAC and its members, thus making their work and achievement of their goals more 4 5 difficult and costly. WAA/SAC members are expending time and resources delivering
6 services to migrants detained in Maricopa County jail facilities pursuant to the Maricopa

7 Migrant Conspiracy Policy. WAA/SAC’s delivering services to migrants incarcerated

8 under the unlawful Maricopa County Conspiracy Policy is more difficult, time-consuming,
9 and expensive than is its delivering like services to undetained and uncharged migrants. In 10 11 addition, WAA/SAC is providing services to migrants detained under the Maricopa
12 Migrant Conspiracy Policy that it does not normally provide undetained migrants, including

13 cash assistance to ameliorate the hardships of confinement.

14

6. Plaintiff ARIZONA HISPANIC COMMUNITY FORUM (AHCF) is a community-

15 based membership organization located in Maricopa County, Arizona. The mission of the 16
AHCF is to empower Hispanic communities, to advocate for Hispanic communities before 17

18 public and private policy-making bodies, to promote and preserve Hispanic history,

19 language, cultures, customs, and contributions, to increase opportunities and improve the

20 quality of life for Hispanics, to defend, preserve and protect rights of Hispanics under the
21 law, to promote equal access and fair treatment for Hispanics, and to provide needy 22
Hispanics charitable assistance. The Maricopa Migrant Conspiracy Policy is diverting the 23 24 limited resources of AHCF and its members, thus making their work and achievement of

25 their goals more difficult and costly. AHCF members are expending time and resources

26 delivering services to migrants detained in Maricopa County jail facilities pursuant to the

27 Maricopa Migrant Conspiracy Policy. AHCF’s delivering services to incarcerated migrants

28

is difficult, costly and time-consuming. In addition, AHCF is providing services to migrants

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Case 2:06-cv-02816-RCB Document 45 Filed 10/12/07 Page 6 of 31

1 detained under the Maricopa Migrant Conspiracy Policy that it does not normally provide,

2 including cash assistance to ameliorate the hardships of their illegal confinement and to
3 permit them to communicate telephonically with their family members. 4
7. Plaintiff LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) is a 5
6 community-based membership organization with a local chapter located in Phoenix,

7 Arizona. LULAC is the largest and oldest Hispanic organization in the United States. Its

8 primary goals include promoting and protecting the legal, political, social, and cultural
9 interests of Latinos in the United States. The unlawful Maricopa Migrant Conspiracy Policy 10 11 is diverting the limited resources of LULAC and its members, thus making their work and
12 achievement of their goals more difficult and costly. LULAC is expending time and

13 resources delivering services to migrants detained in Maricopa County jail facilities

14 pursuant to the Maricopa Migrant Conspiracy Policy. LULAC members have visited
15 migrants detained under the Maricopa County Conspiracy Policy to offer them 16
encouragement and moral support, and have deposited money into migrants’ jail accounts 17
18 to help them communicate with their families while they are incarcerated.

19

8. Plaintiff FRIENDLY HOUSE is a non-profit organization located in Phoenix,

20 Arizona. FRIENDLY HOUSE’s purposes include providing social and legal services to
21 immigrants, including counseling and therapy for immigrants who have suffered traumatic 22
experiences or abuse, and legal assistance to immigrants applying for lawful immigration 23 24 status. The Maricopa Migrant Conspiracy Policy is diverting the limited resources of

25 FRIENDLY HOUSE, thus making its work and achievement of its goals more difficult and

26 costly. FRIENDLY HOUSE is expending time and resources delivering services to migrants

27 incarcerated pursuant to the unlawful Maricopa Migrant Conspiracy Policy. FRIENDLY

28

HOUSE has provided services to plaintiffs JUAN MANUEL CORTEZ CUELLAR and

Amended Complaint

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Case 2:06-cv-02816-RCB Document 45 Filed 10/12/07 Page 7 of 31

1 HUGO ENRIQUE SANCHEZ DIEGO, each of whom is suffering direct and personal injury

2 as a result of the Maricopa Migrant Conspiracy Policy in that they were arrested,
3 incarcerated, and punished pursuant to and in furtherance of said Policy, as alleged herein. 4
9. Plaintiffs RAUL VIXTHA-BOMAYE, JAVIER ENCINO-ROMERO, ROSA FLOR 5
6 DIAZ-GODINES and ADRIANA RODRIGUEZ-ESPIRITU are citizens and nationals of

7 Mexico. Pursuant to the Maricopa Migrant Conspiracy Policy, in mid-August 2006,

8 defendants arrested, detained, and charged each of them with conspiracy to violate Ariz.
9 Rev. Stat. § 13-2319. Defendants detained them—Mr. VIXTHA-BOMAYE and Mr. 10
ENCINO-ROMERO in Durango Jail, and Ms. DIAZ-GODINES and Ms. RODRIGUEZ11
12 ESPIRITU in Estrella Jail—pending resolution of conspiracy charges against them. None of

13 these individuals has ever before been charged or convicted of any criminal offense. On

14 information and belief, defendants turned plaintiffs VIXTHA-BOMAYE and ENCINO-
15 ROMERO over to officers of the United States Immigration and Customs Enforcement 16
(“ICE”) who then removed them from the country while defendants’ criminal charges 17
18 remained pending against them. Plaintiffs DIAZ-GODINES and RODRIGUES-ESPIRITU

19 were incarcerated by defendants for approximately three months pursuant to the Maricopa

20 Migrant Conspiracy Policy.

21

10. Plaintiffs JUAN MANUEL CORTEZ-CUELLAR and HUGO ENRIQUE

22

SANCHEZ-DIEGO are citizens and nationals of Mexico; each of them has resided in the 23

24 United States for approximately 17 years. Pursuant to the Maricopa Migrant Conspiracy

25 Policy, in late May 2006, defendants arrested, detained, and charged each of them with

26 conspiracy to violate Ariz. Rev. Stat. § 13-2319. None of these individuals has ever before

27 been arrested for or charged with any criminal offense. Defendants released plaintiffs

28

CORTEZ-CUELLAR and SANCHEZ DIEGO on bail in early August 2006; they currently

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Case 2:06-cv-02816-RCB Document 45 Filed 10/12/07 Page 8 of 31

1 reside in Mesa, Arizona.

2

11. Plaintiff KYRSTEN SINEMA is an elected member of the Arizona State House of

3 Representatives, representing District 15, west of Phoenix, Arizona. She resides in and 4
pays taxes to defendant MARICOPA COUNTY and to the State of Arizona. Defendants are 5

6 using state and county taxes paid by plaintiff SINEMA to arrest, detain and imprison

7 migrants pursuant to the illegal Maricopa Migrant Conspiracy Policy. Plaintiff SINEMA

8 challenges the Maricopa Migrant Conspiracy Policy as an illegal diversion of taxpayer
9 funds. 10
12. Plaintiff STEVE GALLARDO is an elected member of the Arizona State House 11
12 of Representatives, representing District 13, north of Tucson, Arizona. He resides in and

13 pays taxes to the State of Arizona. Defendants are using state taxes paid by plaintiff

14 GALLARDO to arrest, detain and incarcerate migrants pursuant to the Maricopa Migrant

15 Conspiracy Policy. Plaintiff GALLARDO challenges the Maricopa Migrant Conspiracy 16
Policy as an illegal diversion of taxpayer funds. 17

18

13. Plaintiff STEVE LUJAN is an elected member of the Arizona State House of

19 Representatives, representing District 15, west of Phoenix, Arizona. He resides in and pays

20 taxes to defendant MARICOPA COUNTY and to the State of Arizona. On information and
21 belief, defendants are using state and county taxes paid by plaintiff LUJAN to arrest, detain 22
and imprison migrants pursuant to the illegal Maricopa Migrant Conspiracy Policy. 23 24 Plaintiff LUJAN challenges the Maricopa Migrant Conspiracy Policy as an illegal diversion

25 of taxpayer funds.

26

14. Plaintiff CECILIA MENJIVAR is an Associate Professor in the Department of

27 Sociology and the School of Justice and Social Inquiry at Arizona State University. She

28

resides in and pays taxes to defendant MARICOPA COUNTY and to the State of Arizona.

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1 Defendants are using state and county taxes paid by plaintiff MENJIVAR to arrest, detain

2 and incarcerate migrants pursuant to the Maricopa Migrant Conspiracy Policy. Plaintiff

3 MENJIVAR challenges the Maricopa Migrant Conspiracy Policy as an illegal expenditure 4 5 of taxpayer funds.

6

15. Plaintiff LADAWN HAGLUND is an Assistant Professor in the School of Justice

7 and Social Inquiry at Arizona State University. She resides in and pays taxes to defendant

8 MARICOPA COUNTY and to the State of Arizona. Defendants are using state and county
9 taxes paid by plaintiff HAGLUND to arrest, detain and incarcerate migrants pursuant to the 10
Maricopa Migrant Conspiracy Policy. Plaintiff HAGLUND challenges the Maricopa 11
12 Migrant Conspiracy Policy as an illegal expenditure of taxpayer funds.

13

DEFENDANTS

14

16. Defendant MARICOPA COUNTY BOARD OF SUPERVISORS (“MARICOPA

15 COUNTY”) is the governing body for Maricopa County, a political subdivision of the State 16
of Arizona. Both the Maricopa County Attorney and Maricopa County Sheriff are 17

18 subordinate officials of defendant MARICOPA COUNTY. Defendant MARICOPA COUNTY

19 employs defendants THOMAS and ARPAIO. Defendant MARICOPA COUNTY has

20 acquiesced in, condoned, and through local tax revenues financed the adoption and
21 implementation of the Maricopa Migrant Conspiracy Policy. 22
17. Defendants FULTON BROCK, DON STAPLEY, ANDREW KUNASEK, MAX W. 23 24 WILSON, MARY ROSE WILCOX are members of the Maricopa County Board of

25 Supervisors. Said defendants are sued in their official capacities.

26

18. Defendant ANDREW THOMAS is the Maricopa County Attorney. As such he is

27 responsible for the enforcement of the Arizona Criminal Code, including prosecuting

28

violations of Ariz. Rev. Stat. § 13-2319. On information and belief, defendant THOMAS

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1 devised the Maricopa Migrant Conspiracy Policy and persuaded defendant ARPAIO to

2 implement the detention and arrest aspects of said policy. He is sued in his official capacity.

3

19. Defendant JOSEPH ARPAIO is the Maricopa County Sheriff and as such is

4

5 vested with the legal authority and duty to enforce the Arizona Criminal Code, including

6 Ariz. Rev. Stat. § 13-2319. He is sued in his official capacity.

7

20. Plaintiffs are informed and believe, and on such basis allege, that defendants,

8 their agents, and their employees customarily and as a matter of practice or usage, engage
9 in the acts here complained of. Plaintiffs are further informed and believe, and on such 10 11 basis allege, that defendants, and each of them, are aware of and acquiesce in or encourage
12 their agents and employees in doing the acts here complained of. In doing the acts alleged

13 herein, defendants, and each of them, have acted and will continue to act, under color of

14 state law.

15

CLASS ACTION ALLEGATIONS

16

21. Plaintiffs bring this action as a class action pursuant to Rules 23(a)(1)-(4) and 17

18 (b)(2) of the Federal Rules of Civil Procedure on behalf of the following class of similarly

19 situated individuals:

20

All individuals stopped, detained, or arrested for conspiring to transport themselves,

21

and themselves only, in violation of Ariz. Rev. Stat. § 13-2319.

22

22. The proposed class members will be identifiable from defendants’ records and 23

24 as of the filing of this Complaint are known to number in the hundreds. The class is so

25 numerous that joinder of all members is impracticable. The claims of plaintiffs and those of

26 the proposed class members raise common questions of law and fact concerning, inter alia,

27 whether the challenged Maricopa Migrant Conspiracy Policy is an unconstitutional attempt

28

to regulate international borders. These questions are common to the named parties and to

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1 the members of the proposed class because defendants have acted and will continue to act

2 on grounds generally applicable to both the named parties and proposed class members.

3 Plaintiffs’ claims are typical of the class claims.

4

5

23. The prosecution of separate actions by individual members of the class would

6 create a risk of inconsistent or varying adjudications establishing incompatible standards of

7 conduct for defendants. Prosecution of separate actions would also create the risk that

8 individual class members will secure court orders that would as a practical matter be

9 dispositive of the claims of other class members not named parties to this litigation, thereby 10 11 substantially impeding the ability of unrepresented class members to protect their interests.

12

24. Defendants, their agents, employees, and predecessors and successors in office

13 have acted or refused to act, and will continue to act or refuse to act, on grounds generally

14 applicable to the class, thereby making appropriate injunctive relief or corresponding
15 declaratory relief with respect to the class as a whole. Plaintiffs will vigorously represent 16
the interests of unnamed class members. All members of the proposed class will benefit by 17
18 the action brought by plaintiffs. The interests of the named plaintiffs and those of the

19 proposed class members are identical. Some of plaintiffs’ counsel have other clients injured

20 by defendants’ challenged practices and therefore have an independent interest in ensuring
21 the lawfulness of defendants’ conduct. Plaintiffs’ counsel include attorneys experienced in 22
federal class action litigation involving constitutional law and the law respecting the rights 23 24 of foreign nationals in the United States.

25

STATEMENT OF FACTS

26

25. On or about September 18, 2006, plaintiffs VIXTHA-BOMAYE, ENCINO-

27 ROMERO, DIAZ-GODINEZ and RODRIGUEZ-ESPIRITU were traveling in a van with other

28

individuals on a public highway in or near Phoenix, Arizona. A Peoria Police Officer

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1 working with Maricopa County, Officer Naehrbass #3080, stopped the vehicle, reportedly

2 because one or more officers observed the vehicle to be traveling at a high rate of speed and
3 the vehicle had an expired registration tag. On information and belief, the vehicle was 4 5 stopped because pursuant to the Maricopa Migrant Conspiracy Policy, defendant Arpaio
6 had instructed his deputies to stop vehicles that may be carrying undocumented migrants

7 being transported in Maricopa County.

8

26. The vehicle stopped, and the deputy sheriff asked the driver several questions.

9 He then ordered all those in the vehicle, including plaintiffs VIXTHA-BOMAYE, ENCINO10
ROMERO, DIAZ-GODINEZ and RODRIGUEZ-ESPIRITU, to exit the vehicle, and he further 11

12 ordered them to sit on the ground by the side of the highway. Although the deputy sheriff

13 had neither probable cause nor reasonable suspicion to believe that any of them had

14 committed any cognizable crime, plaintiffs VIXTHA-BOMAYE, ENCINO-ROMERO,
15 DIAZ-GODINEZ and RODRIGUEZ-ESPIRITU were from this time onward not free to leave. 16
The deputy sheriff called for backup and continued to detain plaintiffs VIXTHA-BOMAYE, 17
18 ENCINO-ROMERO, DIAZ-GODINEZ and RODRIGUEZ-ESPIRITU without probable cause

19 or reasonable suspicion to believe that any of them had committed any cognizable crime,

20 while he waited for other officers to arrive. Over an hour later and without advising the
21 detainees of their constitutional rights—including but not limited to their right to counsel 22
and against self-incrimination—Maricopa County Sheriff’s deputies began interrogating 23 24 each detainee individually, including plaintiffs VIXTHA-BOMAYE, ENCINO-ROMERO,

25 DIAZ-GODINEZ and RODRIGUEZ-ESPIRITU, while continuing to oblige them to sit on the

26 ground. The Maricopa County Sheriff’s deputies’ questions were intended to ascertain

27 whether the detainees were migrants who had entered the United States without inspection

28

and were being transported for gain, and accordingly subject to arrest pursuant to the

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1 Maricopa County Conspiracy Policy for conspiracy to violation Ariz. Rev. Stat. § 13-2319.

2

27. At no time did Maricopa County Sheriff’s deputies attempt to obtain appropriate

3 confirmation from the United States Department of Homeland Security that plaintiffs 4
VIXTHA-BOMAYE, ENCINO-ROMERO, DIAZ-GODINEZ or RODRIGUEZ-ESPIRITU had 5

6 previously been convicted of a felony in the United States and deported or left the United

7 States after such conviction. At no time did Maricopa County Sheriff’s deputies develop

8 any reason whatsoever to believe that plaintiffs VIXTHA-BOMAYE, ENCINO-ROMERO,
9 DIAZ-GODINEZ or RODRIGUEZ-ESPIRITU were themselves alien smugglers, or that any 10 11 of them were transporting or had conspired to transport others for gain. At no time did
12 Maricopa County Sheriff’s deputies have probable cause to believe that plaintiffs VIXTHA-

13 BOMAYE, ENCINO-ROMERO, DIAZ-GODINEZ or RODRIGUEZ-ESPIRITU had

14 committed any cognizable criminal offense.

15

28. Nevertheless, acting pursuant defendants’ Maricopa County Conspiracy Policy,

16

the Maricopa County Sheriff’s deputies arrested plaintiffs VIXTHA-BOMAYE, ENCINO17

18 ROMERO, DIAZ-GODINEZ and RODRIGUEZ-ESPIRITU and transported them to a

19 Maricopa County Sheriff’s station house. At the station house, Maricopa County Sheriff’s

20 deputies again interrogated plaintiffs VIXTHA-BOMAYE, ENCINO-ROMERO, DIAZ-
21 GODINEZ and RODRIGUEZ-ESPIRITU, again without advising any of them of their 22
constitutional rights, including those to counsel and against self-incrimination, and again 23 24 without attempting to obtain appropriate confirmation from the United States Department

25 of Homeland Security that plaintiffs VIXTHA-BOMAYE, ENCINO-ROMERO, DIAZ-

26 GODINEZ or RODRIGUEZ-ESPIRITU had previously been convicted of a felony in the

27 United States and deported or left the United States after such conviction. Maricopa County

28

Sheriff’s deputies eventually booked plaintiffs VIXTHA-BOMAYE, ENCINO-ROMERO,

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1 DIAZ-GODINEZ and RODRIGUEZ-ESPIRITU into Maricopa County Jail.

2

29. On September 21, 2006, the Maricopa County Attorney’s Office filed a

3 complaint charging plaintiffs VIXTHA-BOMAYE, ENCINO-ROMERO, DIAZ-GODINEZ 4
and RODRIGUEZ-ESPIRITU, and each of them, with “conspiracy to commit human 5

6 smuggling”: i.e., conspiring to transport themselves, and only themselves, in violation of

7 Ariz. Rev. Stat. § 13-2319. Defendants thereafter continued to detain plaintiffs VIXTHA-

8 BOMAYE, ENCINO-ROMERO, DIAZ-GODINEZ and RODRIGUEZ-ESPIRITU pending trial
9 or other disposition of the charge against them. Defendants turned plaintiffs VIXTHA10
BOMAYE and ENCINO-ROMERO over to the U.S. Immigration and Customs Enforcement 11
12 and they were removed from the country while defendants’ criminal charges against them

13 were still pending. Those charges remain pending and a bench warrant has been or is likely

14 to be issued in the near future to compel their attendance at hearings they are unable to
15 attend unless federal authorities authorize their admission to the United States to appear in 16
the proceedings held pursuant to the challenged Maricopa County Conspiracy Policy. On or 17
18 about March 26, 2007, an immigration judge granted plaintiff DIAZ lawful permanent

19 residence in the United States.

20

30. On or about May 22, 2006, plaintiffs CORTEZ-CUELLAR and SANCHEZ-

21 DIEGO were traveling in a vehicle on or near Old U.S. Highway 80 in Maricopa County, 22
Arizona. Maricopa County Sheriff’s Deputy F. Castorena stopped the vehicle, ostensibly 23

24 because it carried an expired license plate, but in truth and fact because he suspected that

25 migrants who had entered the United States without inspection were being transported

26 therein, and pursuant to the Maricopa County Conspiracy Policy, defendant ARPAIO had

27 instructed him to detain and arrest such individuals.

28 31. Deputy Castorena ordered plaintiffs CORTEZ-CUELLAR and SANCHEZ-DIEGO

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1 and all other passengers in the vehicle to exit and to sit on the ground. Although the deputy

2 sheriff had neither probable cause nor reasonable suspicion to believe that any of them had
3 committed any cognizable crime, plaintiffs CORTEZ-CUELLAR and SANCHEZ-DIEGO 4 5 were not free to leave from this time onward. Following this detention and without advising
6 the detainees of their constitutional rights—including but not limited to their right to

7 counsel and against self-incrimination—Maricopa County Sheriff’s deputies began

8 interrogating each detainee individually, including plaintiffs CORTEZ-CUELLAR and
9 SANCHEZ-DIEGO, while continuing to oblige them to sit on the ground. The Maricopa 10 11 County Sheriff’s deputies’ questions were intended to ascertain whether the detainees were
12 migrants who had entered the United States without inspection and were being transported

13 for gain, and accordingly subject to arrest pursuant to the Maricopa County Conspiracy

14 Policy for conspiracy to violation Ariz. Rev. Stat. § 13-2319.

15

32. At no time did Maricopa County Sheriff’s deputies attempt to obtain appropriate

16

confirmation from the United States Department of Homeland Security that plaintiffs 17

18 CORTEZ-CUELLAR or SANCHEZ-DIEGO had previously been convicted of a felony in the

19 United States and deported or left the United States after such conviction. At no time did

20 Maricopa County Sheriff’s deputies develop any reason whatsoever to believe that
21 plaintiffs CORTEZ-CUELLAR or SANCHEZ-DIEGO were themselves alien smugglers, or 22
that either of them was transporting or had conspired to transport others for gain. At no 23 24 time did Maricopa County Sheriff’s deputies have probable cause to believe that plaintiffs

25 CORTEZ-CUELLAR or SANCHEZ-DIEGO had committed any cognizable criminal offense.

26

33. Approximately one hour later, Maricopa County Sheriff’s deputies arrested

27 plaintiffs CORTEZ-CUELLAR and SANCHEZ-DIEGO and transported them to a station

28

house in or near Gila Bend, Arizona. At the station house, Maricopa County Sheriff’s

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1 deputies further detained and questioned plaintiffs CORTEZ-CUELLAR and SANCHEZ-

2 DIEGO without attempting to obtain appropriate confirmation from the United States
3 Department of Homeland Security that plaintiffs CORTEZ-CUELLAR or SANCHEZ-DIEGO 4 5 had previously been convicted of a felony in the United States and deported or left the
6 United States after such conviction. Following interrogation, Maricopa County Sheriff’s

7 deputies booked plaintiffs CORTEZ-CUELLAR or SANCHEZ-DIEGO into a Maricopa

8 County jail.

9

34. On May 24, 2006, the Maricopa County Attorney’s Office filed a complaint

10

charging plaintiffs CORTEZ-CUELLAR and SANCHEZ-DIEGO, and each of them, with 11

12 “conspiracy to commit human smuggling”: i.e., conspiring to transport themselves, and

13 only themselves, in violation of Ariz. Rev. Stat. § 13-2319. On June 1, 2006, Maricopa

14 County grand jury issued an indictment against plaintiffs CORTEZ-CUELLAR and
15 SANCHEZ-DIEGO similarly charging them. In early August 2006, after incarcerating them 16
for over two months, defendants released plaintiffs CORTEZ-CUELLAR and SANCHEZ17
18 DIEGO on bail pending trial or other disposition of the charge against them.

19

35. Ariz. Rev. Stat. § 13-2319, provides in relevant part as follows:

20

A. It is unlawful for a person to intentionally engage in the smuggling of human

21

beings for profit or commercial purpose. . . . .

22

C. For the purposes of this section “smuggling of human beings” means the 23

24

transportation or procurement of transportation by a person or an entity that knows

25

or has reason to know that the person or persons transported or to be transported are

26

not United States citizens, permanent resident aliens or persons otherwise lawfully in

27

this state.

28 36. On or about September 29, 2005, defendant THOMAS issued a statement

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1 declaring that, in his view, § 13-2319 proscribes not only smugglers’ transporting persons

2 for profit and procuring such transportation for others, but also non-smuggler migrants’
3 agreeing to pay for transport or on whose behalf others had agreed to pay for transport. 4
According to defendant THOMAS, “If [law enforcement has] probable cause to believe that 5
6 illegal immigrants have intentionally allowed themselves to be smuggled by a paid human

7 smuggler . . . [law enforcement] may arrest the illegal immigrants as well as the coyote.”

8 Maricopa County Attorney Opinion 2005-002, Sept. 29, 2005. Defendant THOMAS
9 asserted that he would thenceforth prosecute persons who agree to pay for transport for 10 11 conspiring to violate § 13-2319: “When there is probable cause to believe illegal
12 immigrants have violated [§ 13-2319] by committing a preparatory offense to that law

13 under the state’s criminal code, the illegal immigrants may be arrested and charged with

14 these crimes …” Id. This position commenced the challenged Maricopa Migrant
15 Conspiracy Policy. 16
37. On information and belief, prior to initiating the Maricopa Migrant Conspiracy 17
18 Policy, defendants THOMAS did not research or assign anyone to research whether his

19 policy violated federal law nor did he evaluate in any reasonable way the cost to taxpayers

20 of the new policy, nor did he evaluate the requirements of 8 U.S.C. § 1357(g), which

21 establishes a procedure by which state officers may assist federal efforts to regulate 22
international migration. 23

24

38. Section 13-2319 was added in 2005 by H.B. 2539. The bill’s sponsor, Rep.

25 Jonathan Paton, was clear about its purpose. The minutes of the House Judiciary

26 Committee record the following:

27

Mr. Paton advised this legislation is the result of discussions with a number of his

28

constituents. He said there is a growing human tragedy along Arizona’s southern

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1

border. This bill attempts to deal with both situations of people coming into this

2

country looking for work as well as people who are living in the path of

3

immigration. People who are involved in trafficking, referred to as coyotes, are

4

5

operating with impunity in this area and there is a culture of lawlessness growing up

6

around that. He stated that lawlessness is compromising national security and

7

exploiting people who are trying to enter into this country. …

8

Mr. Paton stated that there are no state laws against the actual coyote smuggling

9

activity. This bill attempts to give local law enforcement the ability to stop this

10

11

activity from happening and to prosecute on both the federal and state level. He

12

reminded Members that the U.S. Attorney’s Office in southern Arizona has not been

13

prosecuting coyotes.

14 Minutes of the Committee on Judiciary re: H.B. 2539, Arizona House of Representatives,
15 47th Legislature, First Regular Session (February 10, 2005) (emphasis added). The purpose 16
of § 13-2319 is the prosecution of alien smugglers —“actual coyotes”—and not “people 17
18 who are coming into this country looking for work.” The legislature conceived of § 13-

19 2319 as providing a state analogue to federal law against alien smuggling, 8 U.S.C. § 1324.

20

39. On March 6, 2006, the Associated Press reported lawmakers’ astonishment at

21 defendants’ adoption of the Maricopa County Conspiracy Policy: 22
[T]wo of the law’s authors said Friday that it was never their intent for illegal 23

24

immigrants to be prosecuted under the law.

25

“This is something the county attorney came up with himself,” said Rep. Jonathon

26

Paton, R-Tucson. “I never intended that immigrants would be arrested . . . That’s not

27

what I sold the bill as, and that’s not what our attorneys at the time told us. It was

28 pretty clear.”

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1

When Sen. Timothy Bee, R-Tucson, was contacted about the arrests, he hadn't heard

2

Thomas was seeking to charge the immigrants under the human smuggling law.

3

“Wow,” he said. “That's the first time I’ve seen that interpretation of the law. The

4

5

law was designed to go after those who are involved in drug trafficking and human

6

trafficking for a profit.” ….

7

Other lawmakers questioned the logic of prosecuting illegal immigrants under the

8

human smuggling law.

9

“I don't think it would be wise public policy to fill up our prisons with people whose

10

11

only offense is that they paid someone to get into the country, and otherwise haven't

12

broken any laws in this state,” said Rep. Bill Brotherton, D-Phoenix, who supported

13

the human smuggling bill last year. “Imagine this being done on a wide scale. You're

14

talking about putting potentially thousands or tens of thousands of new people into

15

the prison system.”

16

40. Defendants’ construing Arizona law as permitting arrest and detention for 17

18 conspiracy to transport oneself is arbitrary and unreasonable. On information and belief,

19 plaintiffs allege that defendants THOMAS and ARPAIO are the only two law enforcement

20 officers in the nation who have embarked on a policy and practice to arrest and prosecute
21 alleged undocumented immigrants for “conspiracy” to transport themselves. To the extent 22
the Maricopa Migrant Conspiracy Policy is consistent with § 13-2319 and related Arizona 23 24 statutes, those statutes fail to provide fair warning of the act which they make punishable as

25 a crime.

26

41. Nevertheless, on March 2, 2006, in furtherance of the Maricopa Migrant

27 Conspiracy Policy, the Maricopa County Sheriff’s deputies stopped, detained, and arrested

28

54 individuals on suspicion of conspiring to transport themselves in violation of § 13-2319.

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1 With the exception of one or two individuals whom defendants reasonably believed to be

2 alien smugglers, said stops, detentions, and arrests were conducted without probable cause
3 to believe that any of the persons seized had committed or were committing a cognizable 4 5 criminal offense because nowhere does Arizona law make it a crime to conspire to transport
6 oneself in violation of § 13-2319.

7

42. On or about March 13, 2006, at the behest of defendant THOMAS and agents of

8 defendant Maricopa County Attorney’s Office, a Maricopa County Grand Jury indicted 48
9 of the individuals arrested on March 2, 2006, for conspiracy to transport themselves in 10 11 violation of § 13-2319. None of the individuals thus indicted were charged with actually
12 violating § 13-2319, nor were any of them accused of transporting others for gain, or of

13 doing anything beyond agreeing to pay for transport through Maricopa County or being

14 provided transport after someone else paid for the transport.

15

43. Thereafter, defendant ARPAIO organized and widely publicized a civilian

16

“posse,” whose members assist his deputies ferret out and arrest migrants in Maricopa 17

18 County being transported by smugglers. On information and belief, defendants and their

19 employees and agents have since arrested and incarcerated for conspiracy to smuggle

20 themselves over 1,000 individuals. Most recently, on or about September 26, 2007,

21 defendants arrested and detained about twenty-seven (27) individuals pursuant to the 22
Maricopa Migrant Conspiracy Policy 23

24

44. Defendants THOMAS and ARPAIO conspired to initiate and implement the

25 Maricopa Migrant Conspiracy Policy in order to regulate international migration and

26 because, as defendant THOMAS stated, defendants are “frustrated … [with the] problem of

27 illegal immigration that the government [of Mexico] is directly fomenting,” and because, as

28

defendant ARPAIO stated, “[t]here are [too] many illegals trying to make it into [Maricopa]

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1 county …” Gary Grado, Thomas Rips Mexico in Illegals’ Arrest Case, EAST VALLEY

2 TRIBUNE (MESA, AZ), March 25, 2006 (hereinafter “March 25, 2006, Thomas Rips
3 Mexico”); Maricopa County Sheriff’s Office Press Release, Sheriff Calls out Posse to Stem 4 5 Illegal Immigration into Maricopa County, May 2, 2006 (hereinafter “May 2, 2006 Sheriff
6 Press Release”). The challenged Maricopa Migrant Conspiracy Policy is an attempt by

7 defendants to control undocumented migration, a purely federal function, by arresting and

8 punishing suspected undocumented migrants who enter, pass through, or remain in

9 Maricopa County.

10

11

45. The Immigration and Nationality Act includes detailed criminal provisions

12 regulating the transportation of immigrants not authorized to be present in the United States

13 and federal law thus fully occupies the field. The Maricopa Migrant Conspiracy Policy is

14 an attempt to regulate conduct that the federal government has already prohibited as part of
15 a comprehensive federal scheme: immigrant smuggling and unauthorized entry into the 16
United States. As a local regulation duplicating (and thus intruding on) a federal scheme, 17
18 the Maricopa Migrant Conspiracy Policy is preempted. The Maricopa Migrant Conspiracy

19 Policy conflicts with and stands as an obstacle to federal regulation of international

20 migration. Federal immigration laws and policies allow multiple categories of migrants to
21 remain in the United States while they apply for lawful status despite having entered 22
without inspection, including, for example, laws permitting migrants to apply for U visas as 23 24 victims of violent crimes, T visas as the victims of trafficking, asylum as the victims of

25 persecution, or adjustment of status based upon their eligibility for certain types of family

26 or employment-based visas.

27

46. Under the Maricopa Migrant Conspiracy Policy, non-smuggler immigrants with

28

a legal right to remain in the United States while they seek formal lawful status are as

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1 culpable for conspiring to violate Ariz. Rev. Stat. § 13-2319—and as liable to be detained

2 and incarcerated for so conspiring—as are persons who are ineligible for such benefits. The

3 Maricopa Migrant Conspiracy Policy actually conflicts with federal law by —

4

5

(i) directing the detention, arrest, prosecution and imprisonment of individuals

6

who do not have formal lawful status, but who, like plaintiff DIAZ GODINES,

7

may be eligible for lawful immigration status and who under federal law are

8

allowed to remain in the United States while their applications for lawful

9

status are processed; and

10

11

(ii) affording no or grossly inadequate procedural safeguards in determining an

12

arrestee’s federal immigration status and right to be in the United States.

13

47. Federal law establishes a comprehensive procedure that fully occupies the field

14 by which state officers and employees may assist federal efforts to regulate international

15 migration. 8 U.S.C. § 1357(g) provides in pertinent part: 16
(1) . . . [T]he Attorney General may enter into a written agreement with a State, or 17

18

any political subdivision of a State, pursuant to which an officer or employee of the

19

State or subdivision, who is determined by the Attorney General to be qualified to

20

perform a function of an immigration officer in relation to the investigation,

21

apprehension, or detention of aliens in the United States (including the transportation

22

of such aliens across State lines to detention centers), may carry out such function at 23

24

the expense of the State or political subdivision and to the extent consistent with

25

State and local law.

26

(2) An agreement under this subsection shall require that an officer or employee of a

27

State or political subdivision of a State performing a function under the agreement

28

shall have knowledge of, and adhere to, Federal law relating to the function, and

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1

shall contain a written certification that the officers or employees performing the

2

function under the agreement have received adequate training regarding the

3

enforcement of relevant Federal immigration laws.

4

5

(3) In performing a function under this subsection, an officer or employee of a State

6

or political subdivision of a State shall be subject to the direction and supervision of

7

the Attorney General. . . .

8

(5) With respect to each officer or employee of a State or political subdivision who

9

is authorized to perform a function under this subsection, the specific powers and

10

11

duties that may be, or are required to be, exercised or performed by the individual,

12

the duration of the authority of the individual, and the position of the agency of the

13

Attorney General who is required to supervise and direct the individual, shall be set

14

forth in a written agreement between the Attorney General and the State or political

15

subdivision.

16

48. On information and belief, defendants have neither sought nor received adequate 17

18 training regarding the enforcement of relevant Federal immigration laws or complied with 8

19 U.S.C. § 1357(g). In carrying out the Maricopa County Conspiracy Policy, defendants are

20 not subject to the direction or supervision of the Attorney General or the Department of
21 Homeland Security, nor is there any written agreement between defendants and the 22
Attorney General or the Department of Homeland Security authorizing the Maricopa 23 24 County Conspiracy Policy.

25

49. On information and belief, defendants have also arrested and detained class

26 members for prolonged periods without charge, without bringing them before a neutral and

27 detached magistrate for a determination of probable cause, and without affording them

28

counsel or a speedy trial. Defendants have attempted to justify said unlawful seizures by

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1 falsely claiming that the federal Immigration and Customs Enforcement (“ICE”), a bureau

2 of the Department of Homeland Security (“DHS”), has placed “holds” on such individuals
3 authorizing their detention under federal authority when in truth and fact ICE has placed no 4 5 such “holds” or otherwise authorized defendants to detain class members. By letter dated
6 July 6, 2006, ICE advised defendant ARPAIO that such pretextual detentions were

7 unlawful:

8

It has come to the attention of the U.S. Immigration and Customs Enforcement

9

(ICE) that a significant number of inmates within the Maricopa County jail system

10

11

have booking records that reflect they are subject to an “ICE HOLD”, although they

12

have not been interviewed by an officer who is authorized to determine alienage …

13

The only officers authorized to make a determination as to alien status are federal

14

officers vested with authority under the Immigration and Nationality Act [INA] … A

15

federal officer must base the determination of status upon either an interview of the

16

subject or through fingerprint comparison with existing administrative immigration 17

18

records. Furthermore, only federal officers … can place detainers pursuant to the

19

INA. Detention and Removal (DRO) transport officers have been advised to pick up

20

only those inmates that are the subject of a properly placed immigration hold … The

21

noting of “ICE HOLD” in the record … has already created some issues, placing

22

both the DRO transport staff and your jail staff in difficult positions. Unless 23

24

corrected, it can lead to friction between agencies and may manifest itself at a time

25

when either officer safety or agency professionalism is out at risk … [and] risk[s] …

26

charges of discrimination or unlawful detention being brought by individuals held on

27

the basis of an “ICE HOLD” inappropriately placed by other than an authorized

28 federal officer.

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1

50. On information and belief, defendants have engaged in racial profiling to stop

2 and detain class members, unduly burdened class members’ ability to communicate and
3 meet with legal counsel while detained, caused class members to suffer humiliating, 4 5 degrading, and unlawful jail conditions, and have knowingly cause some class members to
6 enter guilty pleas to felony charges solely to end their lengthy, unlawful incarceration and

7 transferred other class members to federal authorities knowing that they would be removed

8 from the country while defendants’ criminal charges remain pending. 9

10 IRREPARABLE INJURY
11

12

51. Defendants are engaged in a continuing pattern of illegal conduct in performing

13 the acts and omissions herein complained of. As a result, plaintiffs and the class they seek

14 to represent have suffered and will continue to suffer recurrent irreparable injury for which
15 they have no adequate remedy at law. If the relief prayed for is not granted, plaintiffs and 16
the class they seek to represent will continue to be arrested, detained, and punished 17
18 pursuant to an unconstitutional and unlawful policy. Defendants will continue their

19 challenged policies and practices unless and until this Court enjoins them from doing so.

20 Plaintiffs do not, however, seek to enjoin or interfere with state proceedings that were

21 underway before initiation of this case or otherwise would require abstention under 22
Younger v. Harris, 401 U.S. 37 (1971). 23

24

FIRST CLAIM FOR RELIEF

25

[Federal Preemption]

26

52. Plaintiffs reallege and incorporate by reference the allegations set out in

27 paragraphs 1 through 51, inclusive, of this Complaint as though fully set forth here.

28

53. The Maricopa Migrant Conspiracy Policy is an impermissible attempt by state

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1 actors to regulate immigration, and as such unlawfully usurps the federal government’s

2 exclusive power to regulate immigration in violation of the United States Constitution Art.
3 I, § 8, cl. 4 (the federal power to establish a uniform rule of naturalization); the United 4 5 States Constitution Art. I, § 8, cl. 3 (the federal power to regulate commerce with foreign
6 nations); and the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq. (“INA”).

7

54. The Immigration and Nationality Act includes detailed criminal provisions

8 regulating the transportation of immigrants not authorized to be present in the United States
9 and federal law thus fully occupies the field. See, e.g. 8 U.S.C. §§ 1321-28. The Maricopa 10 11 Migrant Conspiracy Policy also actually conflicts and is inconsistent with federal law,
12 including 8 U.S.C. §§ 1252c, 1324, and 1357, as well as federal statutes that establish

13 multiple categories of immigrants who have not been lawfully admitted to the country, but

14 who are nevertheless authorized to remain here while they pursue lawful immigration
15 status, including, but not limited to, 8 U.S.C. §§ 1101(a)(42) and 1157 (refugee status); 16
1101(a)(42)(A) and 1158 (asylee status); 1231(b)(3) (withholding of removal); § 1229b 17
18 (cancellation of removal); 1101(a)(15)(U) and 1184(p) (victims of violent crimes status);

19 1101(a)(15)(T) and 1184(o) (victims of trafficking status); and 1154 and 1229b(b)(2)

20 (battered immigrant women and children status).

21

SECOND CLAIM FOR RELIEF

22

[Unlawful Search and Seizure; violation of 42 U.S.C. § 1983] 23

24

55. Plaintiffs reallege and incorporate by reference the allegations set out in

25 paragraphs 1 through 51, inclusive, of this Complaint as though fully set forth here.

26

56. The Maricopa Migrant Conspiracy Policy violates the Fourteenth Amendment’s

27 protection against unreasonable searches and seizures because — 28

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1

(a) Arizona law does not criminalize conspiracy to transport oneself, and

2

defendants’ stopping, detaining, and arresting plaintiffs and their class

3

members as alleged herein is therefore without reasonable suspicion or

4

5

probable cause to believe they have committed any cognizable crime;

6

(b) even if Arizona law criminalized conspiracy to transport oneself, defendants

7

unlawfully detain or arrest plaintiffs and class members without probable

8

cause to believe that they have violated Arizona Law and question plaintiffs

9

and class members regarding their alleged violation of Arizona law without

10

11

providing adequate Miranda warnings before such questioning takes place;

12

and

13

(c) defendants, their officers and agents are not trained or qualified to determine

14

whether migrants are “lawfully within the state” for purposes of determining

15

probable cause to arrest them.

16

17

18

THIRD CLAIM FOR RELIEF

19

[Denial of Due Process; violation of 42 U.S.C. § 1983]

20

57. Plaintiffs reallege and incorporate by reference the allegations set out in

21 paragraphs 1 through 51, inclusive, of this Complaint as though fully set forth here. 22
58. To the extent the Maricopa Migrant Conspiracy Policy is consistent with Ariz. 23

24 Rev. Stat. §§ 13-2319 and 13-1003, said statutes deny plaintiffs and their class members

25 due process of law in violation of the Fourteenth Amendment to the United States

26 Constitution, and to the extent the Maricopa Migrant Conspiracy Policy is inconsistent with

27 Ariz. Rev. Stat. §§ 13-2319 and 13-1003, said Policy denies plaintiffs and their class

28

members due process of law in violation of the Fourteenth Amendment to the United States

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1 Constitution, by —

2

(a) failing to provide fair warning of the act which is made punishable as a crime;

3

(b) failing to explain or define when a person is not “lawfully in the state.

4

5

(c) permitting and facilitating plaintiffs’ and class members’ removal from the

6

United States before they can defend against defendants’ conspiracy criminal

7

charges.

8

FOURTH CLAIM FOR RELIEF

9

[Pendent State Claim: Violation of Ariz. Rev. Stat. §§ 13-2319 and 13-1003]

10

11

59. Plaintiffs reallege and incorporate by reference the allegations set out in

12 paragraphs 1 through 51, inclusive, of this Complaint as though fully set forth here.

13

60. The Maricopa Migrant Conspiracy Policy conflicts with and is not authorized by

14 Ariz. Rev. Stat. §§ 13-2319 and 13-1003, which were not intended to and do not impose

15 criminal penalties against migrants transported by smugglers for gain. 16
PRAYER FOR RELIEF 17

18

WHEREFORE, plaintiffs respectfully pray that this Court —

19

1. Assume jurisdiction over this action;

20

2. Order that plaintiffs may maintain this action as a class action pursuant to Rule

21 23, Federal Rules of Civil Procedure; 22
3. Only to the extent relief does not interfere with state proceedings that were 23

24 underway before initiation of this case or otherwise require abstention under Younger v.

25 Harris, 401 U.S. 37 (1971), declare that the Maricopa Migrant Conspiracy Policy —

26

(a) constitutes an unconstitutional program of state regulation of international

27

migration;

28

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1

(b) actually conflicts with the federal government’s regulation of international

2

migration;

3

(c) violates plaintiffs’ rights under the Fourth and Fourteenth Amendments to

4

5

freedom from unreasonable searches and seizures;

6

(d) violates plaintiffs’ rights under the Fifth and Fourteenth Amendments to due

7

process of law; and

8

(e) is inconsistent with and violative of Ariz. Rev. Stat. §§ 13-2319 and 13-

9

1003;

10

11

4. Issue preliminary and permanent injunctions restraining defendants, their agents,

12 employees, and successors in office from further implementing the Maricopa Migrant

13 Conspiracy Policy, but only to the extent such injunctive relief does not interfere with state

14 proceedings that were underway before initiation of this case or otherwise require
15 abstention under Younger v. Harris, 401 U.S. 37 (1971). 16
5. Award plaintiffs their costs of suit and attorney’s fees pursuant to 42 U.S.C. § 17
18 1988(b); and

19

6. Grant such further relief as the Court deems just.

20

21

22

23

24

25

26

27

28

Amended Complaint

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Case 2:06-cv-02816-RCB Document 45 Filed 10/12/07 Page 30 of 31

1 Dated: October 12, 2007. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holguin 256 S. Occidental Blvd. Los Angels, CA 90057
By s/ Peter A. Schey
Perkins Coie Brown & Bain P.A. H. Michael Clyde 2901 N. Central Avenue, Suite 2000 Phoenix, AZ 85012-2788
LULAC National Legal Adviser Ray Velarde 1216 Montana El Paso, TX 79902
Dan Ballecer 1095 E. Indian School Road Phoenix, AZ 85014
Antonio Bustamante 1001 N. Central Avenue Suite 660 Phoenix, AZ 85014
Attorneys for Plaintiffs

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Case 2:06-cv-02816-RCB Document 45 Filed 10/12/07 Page 31 of 31

1

CERTIFICATE OF SERVICE

2

I hereby certify that on October 12, 2007, I electronically transmitted the

3 attached documents to the Clerk’s Office using the CM/ECF System for filing.:

4

I hereby certify that on October 12, 2007, I caused a copy of the attached

5 document to be delivered by overnight delivery addressed to Judge Robert C. Broomfield,

6 United States District Court of Arizona, 401 West Washington Street, Phoenix, Arizona

7 85003-2118.

8

9 s/ Christopher Scherer
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Amended Complaint

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

 
 1 WO

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9

10

11

12 We Are America/Somos America, )

Coalition of Arizona, et al. )

13

)

Plaintiffs, )

14

)

vs.

)

15

)

Maricopa County Board of

)

16 Supervisors, et al.

)

)

17

Defendants. )

)

18

No. CIV-06-2816-PHX-RCB O R D E R

19

The court assumes familiarity with the prior proceedings in

20 this action, which is challenging defendants’ policy of prosecuting

21 individual undocumented immigrants for conspiring to smuggle

22 themselves in violation of Ariz. Rev. Stat. § 13-2319.1 In We Are

23 America/Somos America Coalition of Arizona v. Maricopa County Board

24 of Supervisors, 2007 WL 2775134 (D.Ariz. Sept. 21, 2007), the court

25 left open the possibility that it would decline to exercise its

26 jurisdiction based upon Younger abstention. At that time, as the

27

28

1

As the plaintiffs do, hereafter the court will refer to that policy as

the Maricopa Migrant Conspiracy Policy (“MMCP”) or simply “the policy.”

1 parties are well aware, the court’s primary concern was the

2 requirement under Younger that the state proceedings implicate

3 important state interests. In We Are America the court could not

4 definitively resolve that issue because the parties did not

5 consider the possibility of field preemption. Therefore, the court

6 allowed supplemental briefing on that issue.

7

After the filing of those briefs, defendants advised the court

8 of State v. Barragan-Sierra, 2008 WL 2764611 (Ct. App. July 17,

9 2008). In part because defendants deemed that decision “apropos”

10 to the remaining field preemption issue, Not. (doc. 50) at 2, the

11 court allowed plaintiffs to file a further supplemental brief

12 limited to the “impact, if any,” of Barragan-Sierra upon that

13 issue. Doc. 51 at 4.

14

In the meantime, plaintiffs filed an amended complaint (“FAC”)

15 (doc. 45), which, as will be seen, necessitates revisiting the

16 issue of whether this action will interfere with ongoing state

17 judicial proceedings – another requirement for Younger abstention.

18 See Chandler v. State Bar of California, 2008 WL 901865, at *3

19 (N.D.Cal. March 31, 2008) (quoting Canatella v. California, 304

20 F.3d 843, 850 (9th Cir. 2002)) (“The Younger inquiry ‘is triggered

21 only when the threshold for Younger abstention is present -- that

22 is, when the relief sought in federal court would in some manner

23 directly interfere with ongoing state proceedings.’”) Additionally,

24 despite the fact that the parties did not address it, the court

25 must also consider Younger’s potential applicability to the

26 taxpayer and community organization plaintiffs who are not parties

27 to any state proceedings.

28 . . .

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1

Background

2

Focusing on the Mexican national plaintiffs who had been

3 arrested, charged and detained for conspiracy to violate A.R.S. §

4 13-2319, and the putative class similarly defined, in We Are

5 America this court expressly found that “[a]s currently pled, the

6 relief sought by Plaintiffs will necessarily interfere with

7 prosecutions already underway at the time this action was filed.”

8 We Are America, 2007 WL 2775134, at *3 (emphasis added). In so

9 holding, the court pointed out that “[i]t [wa]s evident from the

10 complaint that at least six of the individual plaintiffs had been

11 charged with violation of Ariz. Rev. Stat. § 13-2319 prior to the

12 initiation of this action.” Id. (citing Compl. (Doc. #1) ¶¶ 9-10).

13 The court also stressed that “the prospective class that Plaintiffs

14 seek to have certified includes ‘[a]ll individuals stopped,

15 detained, arrested, incarcerated, prosecuted, or penalized for

16 conspiring to transport themselves, and themselves only, in

17 violation of Ariz. Rev. Stat. § 13-2319.’” Id. (quoting Compl.

18 (doc. #1) ¶ 25) (emphasis added by court)). The court gave no

19 credence to plaintiffs’ argument that it “could fashion . . .

20 relief in such a way that would not require enjoining any currently

21 pending criminal cases,” because “[p]laintiffs made no such

22 distinction in their complaint.” Id. (citations omitted). To

23 reinforce that point, quoting directly from the complaint, the

24 court noted the allegation that “‘[i]f the relief prayed for is not

25 granted, plaintiffs . . . will continue to be . . . prosecuted

26 pursuant to an unconstitutional and unlawful policy.’” Id.

27 (quoting Compl. (doc. #1) ¶ 55).

28

Shortly after the issuance of We Are America, plaintiffs filed

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1 their FAC. The purpose of that complaint, in plaintiffs’ words, is

2 to “make clear that they seek no relief that would interfere with

3 state proceedings filed before this action.” Pl. Supp. (doc. 52)

4 at 5 n.5 (citation omitted). To that end, in pleading “irreparable

5 injury” in their FAC plaintiffs added the following language:

6 “Plaintiffs do not, . . . , seek to enjoin or interfere with state

7 proceedings that were underway before initiation of this case or

8 otherwise would require abstention under Younger[.]” FAC (doc. 45)

9 at 25, ¶ 51. Plaintiffs similarly amended their prayer for relief.

10 In particular, they now claim to be seeking declaratory relief

11 “[o]nly to the extent [such] relief does not interfere with state

12 proceedings that were underway before initiation of this case or

13 otherwise require abstention under Younger[.]” Id. at 28, ¶ 3.

14 Further, in seeking injunctive relief “restraining defendants . . .

15 from further implementing the [policy],” again, plaintiffs

16 explicitly allege that they are seeking such relief, “but only to

17 the extent [it] does not interfere with state proceedings that were

18 underway before initiation of this case or otherwise require

19 abstention under Younger[.]” Id. at 29, ¶ 4 (emphasis added).

20

In their supplemental memorandum directed to field preemption,

21 almost as an afterthought, plaintiffs took the position that

22 because their FAC does not seek “relief that would interfere with

23 state proceedings filed before this action[,]” the “threshold

24 condition for Younger abstention no longer exists, and this action

25 should go forward regardless of whether preemption is readily

26 apparent[.]” Pl. Supp. (doc. 52) at 5, n. 5. In other words,

27 plaintiffs reason that given the FAC, the interference aspect of

28 Younger abstention is no longer present here. Accordingly, there

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1 is no need for the court to even reach the issue of field

2 preemption. Given this recently espoused position by plaintiffs,

3 the court ordered defendants to file a response “limited to the

4 issues of (1) whether there is an ongoing state-initiated

5 proceeding; and (2) whether this federal court action would enjoin

6 the [state-initiated] proceeding or have the practical effect of

7 doing so, i.e., would interfere with the proceeding in a way that

8 Younger disapproves[,] so as to mandate abstention under Younger.”

9 Doc. 53 at 2:10-14 (internal quotation marks and citation omitted).

10

On November 20, 2008, defendants timely filed their response.

11 As to the first inquiry, defendants simply responded: “Yes.” Def.

12 Supp. (doc. 54) at 2:7. Defendants also responded affirmatively to

13 the second inquiry. Offering no details, defendants contend that

14 allowing this federal action to proceed “would at worst enjoin, and

15 at best interfere with, on-going state initiated proceedings in a

16 way that Younger disapproves.” Id. at 2. Defendants further

17 baldly assert that “the relief sought . . . will necessarily

18 interfere with the continuous stream of on-going state law

19 enforcement and state proceedings for the putative class members.”

20 Id. at 2(citation omitted). Moreover, plaintiffs’ request, as

21 defendants put it, that the court “creatively fashion[]” relief in

22 such a way that “‘otherwise [would not] require abstention under

23 Younger[,]’” is “simply not tenable[,]” from defendants’

24 standpoint. Id. (quoting FAC at 28, ¶ 3). Finally, defendants

25 accurately note that there are no procedural barriers in the

26 pending state court proceedings to raising any constitutional

27 challenges the “putative class members” may have to defendants’

28 policy. Id. Hence, defendants adhere to the view that Younger

- 5 -

1 abstention is proper in this case.

2

Discussion

3 I. Younger Abstention

4

The Ninth Circuit has recognized the mandatory nature of

5 Younger abstention such that “[d]istrict courts applying Younger

6 must exercise jurisdiction except when specific legal standards are

7 met, and may not exercise jurisdiction when those standards are

8 met; there is no discretion vested in the district courts to do

9 otherwise.” Canatella v. California, 404 F.3d 1106, 1113 (9th Cir.

10 2005) (internal quotation marks and citation omitted) (emphasis

11 added). As to the latter situation, the Ninth Circuit has

12 repeatedly held that a “court must abstain under Younger if four

13 requirements are met: (1) a state initiated proceeding is ongoing;

14 (2) the proceeding implicates important state interests; (3) the

15 federal plaintiff is not barred from litigating federal

16 constitutional issue in the state proceeding; and (4) the federal

17 court action would enjoin the proceeding or have the practical

18 effect of doing so, i.e., would interfere with the state proceeding

19 in a way that Younger disapproves.” San Jose Silicon Valley

20 Chamber of Commerce Political Action Committee v. City of San Jose,

21 546 F.3d 1087, 1092 (9th Cir. 2008) (citations omitted) (emphasis

22 added). The court will address these facts in light of the parties

23 supplemental briefs and the filing of the FAC.

24 A. Ongoing State Initiated Proceeding

25

As this court stated in We Are America, “[t]he critical

26 question for purposes of Younger abstention is ‘whether the state

27 proceedings were underway before initiation of the federal

28 proceedings.’” We Are America, 2007 WL 2775134, at *3 (quoting

- 6 -

1 Kitchens v. Bowen, 825 F.2d 1337, 1341 (9th Cir. 1987)). “[A]

2 ‘charge’ is generally a formal allegation of wrongdoing that

3 initiates legal proceedings against an alleged wrongdoer.” Federal

4 Exp. Corp. v. Holowecki, 128 S.Ct. 1147, 1161 (2008) (Thomas, J.,

5 dissenting). “In criminal law, . . . a charge is defined as ‘[a]

6 formal accusation of an offense as a preliminary step to

7 prosecution.’” Id. (quoting Black’s Law Dictionary 248 (8th ed.

8 2004)). Other “events” also may serve to “initiate adversary

9 criminal proceeding[s][,]” such as “preliminary hearing[s],

10 indictment[s], information[s], and arraignment[s].” Rothgery v.

11 Gillespie County, Tex., 128 S.Ct. 2578, 2599 (2008) (Thomas, J.,

12 dissenting).

13

Here, insofar as the six Mexican national plaintiffs are

14 concerned, it is uncontested that state proceedings were underway

15 before the commencement of this federal action. On November 21,

16 2006, plaintiffs filed the complaint herein. Roughly three months

17 earlier, however, as the FAC alleges, “in mid-August 2006,

18 defendants arrested, detained and charged” four of the Mexican

19 national plaintiffs “with conspiracy to violate Ariz. Rev. Stat. §

20 13-2319.” FAC (doc. 45) at 7, ¶ 9. Prior to that, “in late May

21 2006,” defendants also allegedly “arrested, detained, and charged”

22 the other two Mexican national plaintiffs “with conspiracy to

23 violate” that same statute. Id. at 7, ¶ 10. Obviously those

24 actions constituted the initiation of state criminal proceedings

25 against the six Mexican national plaintiffs – proceedings which

26 were underway before the initiation of this federal action.

27

B. Plaintiffs Not Parties to State Proceedings

28

What the parties seemingly fail to take into account is that

- 7 -

1 the six Mexican nationals are not the only plaintiffs in this

2 action. The FAC also names as plaintiffs five individual

3 taxpayers, as well as four community based organizations

4 (collectively referred to herein as the “non-state party

5 plaintiffs”). No state court proceedings have been instituted,

6 much less are pending, against any of those plaintiffs however.

7

“As a general proposition, abstention is mandated under

8 Younger only when the federal plaintiff is actually a party to the

9 state proceeding; the doctrine does not bar non-parties from

10 raising constitutional claims in federal court, even if the same

11 claims are being addressed in a concurrent state proceeding

12 involving similarly situated parties.” Blackwelder v. Safnauer,

13 689 F.Supp. 106, 119 (N.D.N.Y. 1988), aff’d on question of

14 mootness, 866 F.2d 548 (2d Cir. 1989) (citing, Doran v. Salem Inn,

15 Inc., 422 U.S. 922, 928-29, 95 S.Ct. 2561, 2566, 45 L.Ed.2d 648

16 (1975)). In other words, as the Ninth Circuit put, “the state

17 defendant’s inability to bring a federal action because of a

18 pending state prosecution does not affect other potential federal

19 plaintiffs who are not themselves the subject of pending

20 prosecutions.” Ripplinger v. Collins, 868 F.2d 1043, 1049 n. 5 (9th

21 Cir. 1989) (citing Doran, 422 U.S. at 928-930, 95 S.Ct. at 2566-

22 67). In light of the foregoing, on the face of it, application of

23 Younger is problematic as to the non-state party plaintiffs herein.

24

In Doran, one of the three plaintiffs was the subject of a

25 related state criminal prosecution, but the other two were not,

26 forcing the Supreme Court to confront the issue of under what

27 circumstances federal plaintiffs should be considered the same for

28 Younger purposes. The plaintiffs in Doran were three separate

- 8 -

1 corporations, which operated topless bars in the same town. All

2 three were represented by the same counsel and together filed a

3 federal court action challenging the constitutionality of a town

4 ordinance prohibiting topless dancing. Two of the operators abided

5 by that ordinance until after the district court enjoined

6 enforcement of the ordinance. In the meantime though, prior to the

7 issuance of that preliminary injunction, one bar operator resumed

8 the presentation of topless dancing. As a result, the state issued

9 criminal summonses against the operator and its dancers. Following

10 the town’s appeal, the Second Circuit affirmed the granting of the

11 preliminary injunction as to all three plaintiffs.

12

Explicitly rejecting the view “that all three plaintiffs

13 should automatically be thrown into the same hopper for Younger

14 purposes,” the Supreme Court held, inter alia, that Younger barred

15 injunctive relief as to the plaintiff operator who was involved in

16 the state criminal prosecution. Doran, 422 U.S. at 928, 95 S.Ct.

17 at 2566. Younger did not, however, bar injunctive relief as to the

18 other two plaintiffs because “[n]o state proceedings were pending

19 against either [of them] at the time the District Court issued its

20 preliminary injunction.” Id. at 930, 95 S.Ct. at 2567. In so

21 holding, the Court did recognize that “there plainly may be some

22 circumstances in which legally distinct parties are so closely

23 related that they should all be subject to the Younger

24 considerations which govern any one of them[.]” Id. at 928, 95

25 S.Ct. at 2566; see also Hicks v. Miranda, 422 U.S. 332, 348-50, 95

26 S.Ct. 2281, 45 L.Ed.2d 2223 (1975) (err not to dismiss based upon

27 Younger where federal plaintiffs were later subject to state

28 criminal prosecution because their interests were “intertwined with

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1 state criminal defendants, same lawyer represented both, and

2 federal action “sought to interfere with the pending state

3 prosecutions,” and federal plaintiffs did not show that they could

4 not obtain relief or raise constitutional claims in state

5 proceedings). Despite common legal counsel and “similar business

6 activities and problems,” the Supreme Court found that the Doran

7 plaintiffs were not so “closely related,” however, because “they

8 [we]re apparently unrelated in terms of ownership, control and

9 management.” Doran, 422 U.S. at 929, 95 S.Ct. at 2566.

10

From the Ninth Circuit’s standpoint, Doran “clarified that

11 when the federal plaintiff is not a party to the state court

12 action, a mere commonality of interest with a party to the state

13 litigation is not sufficient to justify abstention.” Green v. City 14 of Tucson, 255 F.3d 1086, 1100 (9th Cir. 2001) (en banc), overruled,

15 in part, on other grounds by Gilbertson v. Albright, 381 F.3d 965 16 (9th Cir. 2004) (en banc). Further, when Hicks and Doran are read

17 together, they demonstrate “the quite limited circumstances under

18 which Younger may oust a district court of jurisdiction over a case

19 where the plaintiff is not a party to an ongoing state

20 proceeding[.]” Id. “Congruence of interests is not enough, nor is

21 identity of counsel, but a party whose interest is so intertwined 22 with those of the state court party that direct interference2 with

23 the state court proceeding is inevitable may, under Younger, not

24 proceed.” Id. (footnote added).

25

26

2

“Gilbertson did overrule Green’s holding that direct interference is

a threshold requirement . . . of Younger abstention, but it left intact the more

27

general requirement that some interference with state court proceedings is a necessary . . . element of the Younger doctrine.” San Jose Silicon Valley, 546

F.3d at 1096_n.4 (internal quotation marks and citation omitted) (first ellipsis
28 in original).

- 10 -

1

After careful consideration, the court finds that although the

2 taxpayer and organizational plaintiffs are not parties to the state

3 proceedings, their interests are sufficiently intertwined with

4 those of the Mexican national plaintiffs, who are parties in state

5 court, so that they should be “subject to the Younger

6 considerations which may govern any one of them[.]” See Doran, 422

7 U.S. at 928, 95 S.Ct. at 2566. Several factors inform the court’s

8 analysis. First, “it would be [practically] impossible for this

9 court to address” the claims of the taxpayer and organizational

10 plaintiffs “without resolving issues at the heart of the . . .

11 state proceeding[s]” -- see Hindu Temple Society of North America

12 v. Supreme Court of State of New York, 335 F.Supp.2d 369, 376

13 (E.D.N.Y. 2004), aff’d without pub’d opinion, 142 Fed.Appx. 492 (2d

14 Cir. 2005) – the constitutionality of the MMCP and whether it

15 “actually conflicts with the federal government’s regulation of

16 international migration[.]” See FAC (doc. 45) at 29, ¶ 3(b).

17 Second, there is no suggestion that the Mexican nationals “would

18 fail to adequately represent [the] interests [of the remaining

19 plaintiffs] in the state . . . proceeding[.]” See Spargo v. N.Y.

20 State Com’n, Judicial Conduct, 351 F.3d 65, 85 (2d Cir. 2003).

21 Moreover, if any of those prosecutions are appealed, nothing

22 precludes the non-Mexican national plaintiffs from seeking to

23 appear as amici curiae in accordance with 17 A.R.S. Rules Crim.

24 Proc., Rule 31.25 (West Supp. 2008); see, e.g., State v. Delk, 153

25 Ariz. 70, 734 P.2d 612 (App. 1986) (allowing City of Phoenix to

26 file an amicus curiae brief on the issue of whether Arizona’s

27 “anti-plea bargain” provision violated the Arizona Constitution).

28 Thus, the court agrees with Judge Dearie’s rationale in Hindu

- 11 -

1 Temple that “without more, . . . conjecture” that the non-Mexican

2 national plaintiffs could not have intervened [at some point] in

3 the state proceeding is insufficient to sidestep Younger.” See

4 Hindu Temple, 335 F.Supp.2d at 377. Third, and perhaps most

5 significantly, as discussed below, the declaratory and injunctive

6 relief which plaintiffs are seeking would “interfere” in the state

7 proceedings because it would “enjoin . . . or otherwise involve

8 th[is] federal court[] in terminating or truncating” state

9 proceedings. See San Jose Silicon Valley, 546 F.3d at 1096

10 (internal quotation marks and citation omitted). Thus, although

11 the court is fully cognizant that “Younger should be applied

12 sparingly and cautiously to federal plaintiffs not parties to an

13 ongoing state action[,]” if the other Younger requirements are met

14 here, the court finds that “this is one of those limited

15 circumstances where it must abstain . . . , despite the presence of

16 plaintiffs not parties to the state action.” See Hindu Temple, 335

17 F.Supp.2d at 377 (citing Green, 255 F.3d 1086).

18

C. Implication of Important State Interests

19

At last the court is free to return to the unanswered issue in

20 We Are America – whether plaintiffs can show field preemption under

21 the second DeCanas test. Plaintiffs have consistently taken the

22 position that federal immigration law preempts the MMCP and thus,

23 necessarily, that policy does not implicate an important state

24 interest. From defendants’ perspective neither the MMCP nor A.R.S.

25 § 13-2319 “intrude on, burden, or conflict with federal

26 [immigration] law[;]” hence plaintiffs cannot meet their burden of

27 establishing preemption here.

28

As this court previously framed it, “the decisive inquiry” in

- 12 -

1 terms of field preemption “is whether Congress intended to occupy

2 the field of regulating criminal activities involving the smuggling

3 of aliens.” We Are America, 2007 WL 2775134, at *6. Of the three

4 ways in which Congressional “intent to occupy a given field to the

5 exclusion of state law[]” can be shown,3 plaintiffs are relying

6 only upon the third – “where the object sought to be obtained by

7 the federal law and the character of obligations imposed by it

8 . . . reveal the same purpose.” Id. (internal quotation marks and

9 citation omitted). Schneidewind v. ANR Pipeline Co., 485 U.S. 293,

10 300, 108 S.Ct. 1145, 1150, 99 L.Ed.2d 316 (1988) (internal

11 quotation marks and citation omitted). Plaintiffs contend that the

12 MMCP “impermissibly duplicates” federal immigration law in “object

13 and effect[.]” Pl. Supp. (doc. 44) at 1. From plaintiffs’

14 viewpoint, that duplication stems from the fact that the MMCP

15 attempts to regulate “two types of conduct that the federal

16 government has already prohibited as part of a comprehensive

17 federal scheme: immigrant transportation for gain and unauthorized

18 entry into the United States.” Id. Defendants concede that A.R.S.

19 § 13-2319 and the MMCP “may harmoniously duplicate” certain

20 provisions of the Immigration and Nationality Act (“INA”), but they

21 argue that such harmonious duplication is not sufficient to meet

22 plaintiffs’ burden of proving implied preemption. Def. Supp. (doc.

23 47) at 2.

24

Before addressing the merits, it is necessary to consider

25 defendants’ contention that “state law is presumed not to be

26

27

3

The other two ways are “where the pervasiveness of the federal

regulation precludes supplementation by the States,” and “where the federal

interest in the field is sufficiently dominant[.]” Schneidewind, 485 U.S. at 300,
28 108 S.Ct. at 1150.

- 13 -

1 preempted[.]” Id. at 3. To be sure, “[w]hen Congress legislates in 2 a field which the States have traditionally occupied . . . [courts] 3 start with the assumption that the historic police powers of the 4 State were not to be superseded by the Federal Act unless that was 5 the clear and manifest purpose of Congress.” Chicanos Por La Causa, 6 Inc. v. Napolitano, 544 F.3d 976, 983 (9th Cir. 2008) (quoting, 7 inter alia, United States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 8 1135, 146 L.Ed.2d 69 (2000)) (other citation omitted). What 9 defendants conveniently overlook is that the converse is also true. 10 Courts “do not assume non-preemption ‘when the State regulates in 11 an area where there has been a history of significant federal 12 presence.’” Id. (quoting Locke, 529 U.S. at 108) (emphasis added). 13 Clearly immigration is an area in which historically there has been 14 a significant federal presence. See, e.g., DeCanas, 424 U.S. at 15 354 (citations omitted) (“Power to regulate immigration is 16 unquestionably exclusively a federal power.”); United States v. 17 Valenzuela-Bernal, 458 U.S. 858, 864, 102 S.Ct. 3440, 73 L.Ed.2d 18 1193 (1982) (“The power to regulate immigration - an attribute of 19 sovereignty essential to the preservation of any nation- has been 20 entrusted by the Constitution to the political branches of the 21 Federal Government.”); and Galvan v. Press, 347 U.S. 522, 531, 74 22 S.Ct. 737, 98 L.Ed. 911 (1954) (“that the formulation of 23 [immigration] policies] is entrusted exclusively to Congress has 24 become about as firmly imbedded in the legislative and judicial 25 tissues of our body politic as any aspect of our government”). 26 Thus, despite defendants’ contrary suggestion, they cannot avail 27 themselves of the “presumption against preemption[.]” See Silvas 28 v. E*Trade Mortgage Corp., 514 F.3d 1001, 1004 (9th Cir. 2008).
- 14 -

1 Even without the benefit of that presumption, however, for the

2 reasons set forth below, the court agrees with defendants that

3 plaintiffs’ preemption argument is unavailing.

4

First, plaintiffs offer no legal authority to support the

5 broad proposition that simply because a state statute or policy may

6 be duplicative of federal law, it is necessarily preempted.

7 Indeed, in making that argument plaintiffs disregard the De Canas

8 Court’s finding that there was no “specific indication in either

9 the wording or the legislative history of the INA . . . that

10 Congress intended to preclude even harmonious state regulation

11 touching on aliens in general[.]” De Canas, 424 U.S. at 358, 96

12 S.Ct. at 937-38 (footnote omitted) (emphasis added). Moreover,

13 plaintiffs are not claiming that the MMCP is not harmonious with

14 the INA - only that it is duplicative.

15

Second, plaintiffs also fail to take into account the

16 demanding standard under De Canas to “justify th[e] conclusion[]

17 . . . that Congress, in enacting the INA, intended to oust state

18 authority to regulate . . . in a manner consistent with pertinent

19 federal laws.” Id. at 358, 96 S.Ct. at 937 (emphasis added). In

20 fairly expansive language, the De Canas Court held that “[o]nly a

21 demonstration that complete ouster of state power including state

22 power to promulgate laws not in conflict with federal laws was the

23 clear and manifest purpose of Congress” will establish such

24 Congressional intent. Id. (emphasis added). Plaintiffs do not

25 even come close to meeting that standard.

26

In that respect, the present case is remarkably similar to

27 Barragan-Sierra. There, a defendant who had been convicted of

28 conspiracy to smuggle himself in violation of A.R.S. § 13-2319

- 15 -

1 challenged his conviction on several grounds, including preemption.

2 In addressing defendant’s preemption argument in the context of the

3 second DeCanas test, the Court explained that defendant did “not

4 point[] to any specific indication in the INA or its history that

5 Congress intended to preclude harmonious state regulation touching

6 on the smuggling of illegal aliens in particular.” Barragan, 2008

7 WL 2764611, at *11 (citing DeCanas, 424 U.S. at 358). Likewise,

8 the Court dismissed defendant’s “reference to the limits on the

9 role of states in enforcement of the federal immigration law[,]”

10 finding that it had “no applicability to [A.R.S. § 13-2319], which

11 is a state law designed to punish human smuggling for profit.” Id.

12 Thus, the Barragan-Sierra Court found that defendant did not meet

13 his burden of showing preemption. Id. (citation omitted).

14

Plaintiffs are grasping at straws in their unsuccessful

15 attempt to diminish the import of Barragan-Sierra. First, they

16 contend that this court is not bound by that state court

17 interpretation of federal law which, at most, has only “persuasive

18 value.” Pl. Supp. Memo. (doc. 52) at 2 (internal quotation marks

19 and citation omitted). Second, plaintiffs believe that Barragan-

20 Sierra’s analysis of field preemption “is simply too cursory to

21 persuade.” Id. Third, plaintiffs assert that by enacting 8 U.S.C.

22 §§ 1321-28, “Congress has enacted legislation aimed at the very

23 issue addressed by the MMCP: the transportation of unauthorized

24 entrants.” Id. at 4. None of these reasons persuade this court to

25 disregard Barragan-Sierra, however.

26

Just as in Barragan-Sierra, plaintiffs have not met their

27 burden of showing, either based upon the language or the

28 legislative history of the INA, that “Congress intended to preclude

- 16 -

1 harmonious state regulation touching on the smuggling of illegal

2 aliens in particular.” See Barragan-Sierra, 2008 WL 2764611, at

3 *11 (citing DeCanas, 424 U.S. at 358). Given that “[t]he central

4 concern of the INA is with the terms and conditions of admission to

5 the country and the subsequent treatment of aliens lawfully in the

6 country[,]” plaintiffs’ inability to meet that burden of proof is

7 not surprising. See DeCanas, 424 U.S. at 359 (emphasis added).

8

In addition to arguing impermissible duplication, relying upon

9 three supposedly factually “similar” cases where “[c]ourts [h]ave

10 [f]ound [f]ield [p]reemption[,]” plaintiffs urge this court to also

11 find field preemption. See Pl. Supp. (doc. 44) at 4. Those cases

12 are each readily distinguishable, however, and thus do nothing to

13 advance plaintiffs’ field preemption argument in this case.

14

The court in League of United Latin American Citizens v.

15 Wilson, 997 F.Supp. 1244 (C.D. Cal. 1997) (“LULAC II”) did hold

16 that Congress occupied the field of regulating post-secondary

17 education benefits to aliens by enacting, inter alia, the Personal

18 Responsibility and Work Opportunity Reconciliation Act (“PRA”).

19 The court in LULAC II further held that that federal legislation

20 preempted a California initiative, which included a provision

21 denying public post-secondary education benefits to illegal aliens.

22 Critical to the court’s finding of field preemption in LULAC II was

23 the language of the PRA. By “careful[ly] designati[ng] . . . the

24 limited instances in which states have the right to determine alien

25 eligibility for state or local public benefits[,]” the court found

26 that Congress “manifest[ed]” its “intention to displace state power

27 in the area of regulation of public benefits to immigrants[.]” Id.

28 at 1255.

- 17 -

1

Here, plaintiffs assert that “the INA, like the MMCP, makes it

2 unlawful to ‘transport[], or move[] or attempt[] to transport or

3 move’ undocumented immigrants.” Pl. Supp. (doc. 44) at 2 (quoting

4 8 U.S.C. § 1324(a)(1)(A)(ii)) (footnote omitted). Plaintiffs

5 further assert that the “purpose” of the INA “is to prohibit

6 ‘transport[ation] [of] an undocumented alien to any place in the

7 United States.’” Id. (quoting H.R. Rep. No. 990682 at 66 (1986), as

8 reprinted in 1986 U.S.C.C.A.N. 5649, 5670). These general

9 statements are not, however, similar to the statute at issue in

10 LULAC II, the PRA, which “define[d] the full scope of permissible

11 state legislation in the area of regulation of government benefits

12 and services to aliens.” LULAC II, 997 F.Supp. at 1255. Thus, in

13 contrast to LULAC II, plaintiffs have not pointed to any specific

14 language either in the INA itself or the legislative history

15 thereto manifesting a Congressional intent to “displace state

16 power” in the area of smuggling illegal aliens.

17

Plaintiffs’ reliance upon Hines v. Davidowitz, 312 U.S. 52, 61

18 S.Ct. 399, 85 L.Ed. 581 (1941), is similarly misplaced. There,

19 Pennsylvania enacted an alien registration statute which was

20 “identical” to a federal alien registration act. Id. at 61, 61

21 S.Ct. at 401. The Court held that the federal act, which “provided

22 a standard for alien registration in a single integrated and all-

23 embracing system[,]” preempted that Pennsylvania statute. Id. at

24 74, 61 S.Ct. at 408. The primary reason for finding preemption

25 there was the fact that the state law was “an obstacle to the

26 accomplishment and execution of the full purposes and objectives of

27 Congress.” Id. at 68, 61 S.Ct. at 404 (footnote omitted).

28

In contrast, the INA is not such a “single integrated and all-

- 18 -

1 embracing system” pertaining to the smuggling of aliens. Indeed,

2 plaintiffs would be hard-pressed to make such an argument given

3 that the MMCP, at least on the face of it, appears to fill the

4 interstices of the INA. The MMCP fills those interstices by

5 allowing for the prosecution of individual undocumented immigrants

6 conspiring to smuggle themselves; the INA does not include a

7 similar provision. Moreover, plaintiffs do not assert that the

8 challenged MMCP policy is in any way an “obstacle to the

9 accomplishment and execution of the full purposes and objectives of

10 Congress” as evinced in the INA. Lozano v. City of Hazleton, 496

11 F.Supp.2d 477 (M.D.Pa. 2007) is likewise distinguishable. The

12 Lozano court did not address the third Schneidewind scenario for

13 establishing field preemption – “‘the object sought to be obtained

14 by the federal law and the character of obligation imposed by it

15 reveal the same purpose.’” Id. at 521 (quoting Schneidewind, 485

16 U.S. at 300). This omission is significant because, as mentioned

17 earlier, this third scenario is the only way in which the

18 plaintiffs herein are endeavoring to show field preemption.

19 Therefore, because Lozano’s discussion of duplication was in the

20 context of conflict preemption - a form of preemption to which the

21 plaintiffs herein do not even allude -4 it has no bearing on the

22 present case. In short, despite plaintiffs’ assertion to the

23 contrary, the court does not find that any of these three cases are

24

4

The court recognizes “that the categories of preemption are not rigidly

25 distinct.” See Crosby v. National Foreign Trade Council, 530 U.S. 363, 372 n. 6,
120 S.Ct. 2288, 2294 n. 6, 147 L.Ed.2d 352 (2000) (internal quotation marks and

26 citation omitted). Nonetheless, as noted above, plaintiffs do not even hint at
conflict preemption, which would require a showing that it would “be impossible for

27

a private party to comply with both state and federal law, . . . , and where under the circumstances of [a] particular case, [the challenged state law] stands as an

obstacle to the accomplishment and execution of the full purposes and objectives
28 of Congress.” See id. (internal quotation marks and citations omitted).

- 19 -

1 sufficiently analogous so as to warrant a finding of field

2 preemption here.

3

After We Are America, plaintiffs were left with field

4 preemption as the only basis for finding that no important state

5 interests are implicated here. Having found that plaintiffs did

6 not meet their burden of proof on that discrete issue,5 it stands

7 to reason that they have not overcome the fact, as this court

8 previously recognized, that there is “little question that a state

9 has a vital interest in the enforcement of its criminal laws.” See

10 We Are America, 2007 WL 2775134, at *3 (citing Pennzoil Co. v.

11 Texaco, Inc., 481 U.S. 1, 13 (1987)).

12

D. Interference

13

“The final Younger requirement is that the federal suit would

14 ‘interfere’ with the ongoing state proceeding (i.e., enjoin or have

15 the practical effect of enjoining the proceeding).” See San Jose

16 Silicon Valley, 546 F.3d at 1095 (internal quotation marks and

17 citation omitted) (emphasis added). “As the Supreme Court has

18 held, ‘the mere potential for conflict in the results of

19 adjudications does not, without more, warrant staying exercise of

20 federal jurisdiction[.]’” AmerisourceBergen Corp. v. Roden, 495

21 F.3d 1143, 1151 (9th Cir. 2007) (quoting Colo. River Water

22 Conservation Dist. v. United States, 424 U.S. 800, 816, 96 S.Ct.

23 1236, 47 L.Ed.2d 483 (1976)). Thus, “[c]oncurrent consideration,

24 not abstention, [wa]s the solution,” in AmerisourceBergen, where

25 there was merely a potential for conflict between the state and

26

27

5

As the party asserting preemption, plaintiffs had the burden of proof.

See Jimeno v. Mobil Oil Corp., 66 F.3d 1514, 1526 n.6 (9th Cir. 1995).

28

- 20 -

1 federal actions if a post-judgment motion or counterclaim were

2 filed in state court. Id.

3

Here, the interference goes far beyond the potential for

4 conflicting results. Rather, as will be seen, the “practical

5 effect” of granting plaintiffs the declaratory and injunctive

6 relief which they are seeking would be to enjoin state criminal

7 proceedings - the very conduct which Younger proscribes.

8

In their FAC, plaintiffs purport to frame the relief which

9 they are seeking in such a way as to circumvent Younger, and the

10 interference element in particular. As mentioned at the outset, in

11 their FAC plaintiffs’ prayer for relief seeks declaratory relief

12 “[o]nly to the extent [that] relief does not interfere with state

13 proceedings that were underway before initiation of this case or

14 otherwise require abstention under Younger[.]” FAC (doc. 45) at ¶

15 3. Likewise, plaintiffs are seeking to enjoin defendants and

16 others “from further implementing the [MMCP], but only to the

17 extent such injunctive relief does not interfere with state

18 proceedings that were underway before initiation of this case or

19 otherwise require abstention under Younger[.]” Id. at 29, ¶ 4.

20 Plaintiffs do not suggest how this could be accomplished though.

21

The court concurs with defendants’ observation that “[t]here

22 is simply no meaningful or legal way in which plaintiffs can bring

23 their proposed class action lawsuit, which seeks injunctive [and

24 declaratory] relief against state law enforcement activities and

25 ongoing state judicial proceedings, without obtaining some form of

26 relief which necessarily interferes with some aspect of the ongoing

27 state judicial proceedings against the putative class members.”

28 Resp. (doc. 49) at 2. The court also finds persuasive defendants’

- 21 -

1 argument that “plaintiffs’ ‘carve-out’ exceptions for ongoing state

2 proceedings existing before the date of the [FAC] are artificial

3 and illusory . . . because A.R.S. § 13-2319 and defendants’

4 policies are enforced daily.” Id. This is all the more so given

5 that just last month defendants reiterated that “[p]utative class

6 members of this federal . . . action currently are involved in

7 ongoing state initiated judicial proceedings.” Def. Supp.

8 Authority (doc. 54) at 2:14-15 (emphasis added). Thus, the court

9 finds, as defendants point out, that “the relief sought by

10 plaintiffs for the putative class will necessarily interfere with

11 the continuous stream of on-going state law enforcement and state

12 proceedings[.]” Resp. (doc. 49) at 2.

13

The present case is analogous to San Jose Silicon Valley where

14 the Ninth Circuit recently found that the interference element of

15 Younger had been met. There, local political organizations were

16 challenging the constitutionality of a city code limiting the

17 amount of campaign contributions. Prior to the commencement of

18 that federal lawsuit, the plaintiffs had been publicly reprimanded

19 and one of the defendants, the Elections Commission, decided to

20 assess penalties against plaintiffs at a future date. Plaintiffs

21 sought, among other things, a declaratory judgment that the statute

22 was unconstitutional. They also sought to enjoin defendants from

23 enforcing that code provision against them “or any others similarly

24 situated[;]” and “from levying any civil penalty or future

25 administrative sanction against [them] for alleged violations” of

26 the code. San Jose Silicon Valley, 546 F.3d at 1091 (emphasis

27 added). The court granted plaintiffs a permanent injunction

28 “precluding them from enforcing the statute[,]” which effectively

- 22 -

1 “prohibit[ed] the Elections Commission from imposing the fine

2 against Plaintiffs.” Id. at 1095. The Ninth Circuit held that

3 “[t]he relief sought . . . would ‘interfere’ with the Elections

4 Commission’s proceeding because it would enjoin . . . or otherwise

5 involve the federal courts in terminating or truncating the

6 Elections Commission’s proceeding.” Id. at 1095-96 (internal

7 quotation marks, citation and footnote omitted).

8

The same result would occur here if the court were to grant

9 plaintiffs a judgment declaring the MMCP unconstitutional. Clearly

10 such a declaration would terminate, or at a minimum truncate, state

11 judicial proceedings in direct contravention of Younger.

12 Therefore, try as they might, plaintiffs are unable to circumvent

13 Younger through “artful” pleading. See Carson v. Heineman, 240

14 F.R.D. 456, 525 (D.Neb. 2007) (“[P]laintiffs’ artful pleading and

15 lack of specificity should not serve to circumvent the principles

16 of comity protected by Younger abstention[.]”)

17

To conclude, because all four elements necessary for Younger

18 abstention are present here, the court hereby GRANTS defendants’

19 motion to dismiss on that basis (doc. 32). See San Jose Silicon

20 Valley, 546 F.3d at 1092 (a “court must abstain under Younger if

21 [the] four requirements are met”).

22

IT IS ORDERED that defendants’ motion to dismiss (doc. #32) is

23 GRANTED in its entirety.

24

DATED this 12th day of January, 2009.

25

26

27

28

- 23 -

1 Copies to counsel of record 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

- 24 -

 
 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 We Are America, et al.,

)

)

10

Plaintiffs, )

)

11

vs.

)

)

12 Maricopa County Board of )

Supervisors, et al.

)

13

)

Defendants. )

14

)

No. CIV 06-2816-PHX-RCB O R D E R

15

Introduction

16

In 2005, the Arizona State Legislature criminalized human

17 smuggling.

See Ariz.Rev.Stat. (“A.R.S.”) § 13-2319.

18 Thereafter, the Maricopa County Attorney’s Office (“MCAO”)

19 interpreted that human smuggling statute, in combination with

20 Arizona’s conspiracy statutes, as giving it the prosecutorial

21 discretion to charge and prosecute non-smuggling migrants for

22 conspiring to transport themselves within Maricopa County.

23 Accordingly, the Maricopa County Sheriff’s Office (“MCSO”) began

24 arresting and detaining migrants for that crime. This lawsuit

25 is a direct challenge to the foregoing, which the parties refer

26 to, as will the court, as the Maricopa Migrant Conspiracy Policy

27 (the “Policy”).

28

Currently pending before the court are defendants’ (Doc.

1 119) and plaintiffs’ (Doc. 121) competing motions for summary

2 judgment pursuant to Fed.R.Civ.P. 56. The primary issue which

3 these summary judgment motions raise is whether federal law 4 preempts and renders invalid the Policy.1 The plaintiffs’

5 second motion for class certification pursuant to Fed.R.Civ.P. 6 23 (Doc. 122)2 is also currently pending before the court.

7

Background

8

An examination of the parties’ statements of facts and

9 controverting statements of facts, reveals that there is little

10 complete agreement between them. Most of the parties’

11 objections are not well-taken though; and they obfuscate rather

12 than sharpen the factual record.

13

A court “may only consider admissible evidence in ruling on

14 a motion for summary judgment.” Ballen v. City of Redmond, 466 15 F.3d 736, 745 (9th Cir. 2006) (citation omitted). However,

16 “‘objections to evidence . . . [as] irrelevant, speculative,

17 and/or argumentative, or that it constitutes an improper legal

18 conclusion are all duplicative of the summary judgment standard

19 itself.’” Harris Technical Sales, Inc. v. Eagle Test Sys., Inc.,

20 2008 WL 343260, at *3 (D.Ariz. Feb. 5, 2008) (quoting Burch v.

21 Regents of the Univ. of Cal., 433 F.Supp.2d 1110, 1120 (E.D.Cal.

22

1

Given the court’s intimate familiarity with this action and

23 because the issues have been fully briefed, in its discretion the court

denies the parties’ request for oral argument as it would not aid the
24 decisional process. See Fed.R.Civ.P. 78(b); Partridge v. Reich, 141 F.3d
920, 926 (9th Cir. 1998).
25

26

2

This court previously denied plaintiffs’ first motion for class

27 certification without prejudice to renew. We Are America/Somos America

Coalition of Arizona v. Maricopa Co. Bd. of Supervisors, 2007 WL 2775134,
28 at * 8 (D.Ariz. Sept. 21, 2007) (“WAA/SACA I”).

- 2 -

1 2006)). Many of the parties’ objections are to relevancy. Such

2 objections are “‘redundant’” though because a court “‘cannot

3 rely on irrelevant facts[]’” in awarding summary judgment.

4 Huynh v. J.P. Morgan Chase & Co., 2008 WL 2789532, at *4

5 (D.Ariz. July 17, 2008) (quoting Burch, 433 F.Supp.2d at 1119).

6 “‘A court can award summary judgment only when there is no

7 genuine dispute of material fact.’” Id. (quoting Burch, 433

8 F.Supp.2d at 1119) (emphasis in original)).

9

Other objections are that the proffered evidence is

10 argumentative or constitutes an improper legal conclusion.

11 These types of objections are “superfluous” in this context,

12 however, because such statements “‘are not facts and likewise

13 will not be considered on a motion for summary judgment.’” Id.

14 (quoting Burch, 433 F.Supp.2d at 1119 (citation omitted)).

15 Thus, insofar as the parties’ objections are duplicative of the

16 summary judgment standard, the court sees no need to expressly

17 rule on each.

18

There are two objections which merit specific

19 consideration, however. The defendants are objecting to the

20 plaintiffs’ second statement of fact which, in turn, is based

21 upon a document entitled “[Criminal Justice-Sheriff-Human

22 Smuggling Enforcement] Opinion No. 2005-002[,]” dated September 23 29, 2005. Pls.’ Exh. 5 (Doc. 121-2) at 213-219.3 This unsigned

24 document purports to be a letter from former Maricopa County

25 Attorney Andrew P. Thomas to defendant Sheriff Joseph M. Arpaio.

26

27

3

For uniformity and ease of reference, all citations to page

numbers of docketed items are to the page assigned by the court’s case

28 management and electronic case filing (CM/ECF) system.

- 3 -

1 See id. Based upon this letter, the plaintiffs offer the

2 following statement of “fact[:]” “On September 29, 2005, [the

3 then] defendant County Attorney announced that his office would

4 prosecute not only actual coyotes, but also non-smuggler

5 migrants — ‘people who are trying to enter into this country’

6 and whom, in the legislature’s view, actual smugglers ‘exploit’

7 – who agree to pay for their own transport on the theory that

8 such migrants have conspired to violate § 13-2319.” Plaintiffs’

9 Statement of Facts in Support of Motion for Summary Judgment

10 (“Pls.’ SOF”) (Doc. 121-1) at 3:16-21 (citations omitted). The

11 plaintiffs also rely upon the September 29, 2005, document as

12 the source of the Policy. See id. at 3:24-25 (“This [opinion

13 letter] initiated the . . . MMCP at issue[.]”)

14

Objecting to this statement of fact, and the predicate

15 document, the defendants assert that the latter lacks foundation

16 because it is unsigned. The defendants further assert that that

17 unsigned document cannot “serve as an admission by a party

18 opponent[]” in the absence of any testimony by either its

19 supposed author, non-party Thomas, or its alleged recipient,

20 defendant Arpaio. Defendants’ Response to Plaintiffs’ Statement

21 of Facts in Support of Plaintiffs’ Motion for Summary Judgment

22 and Controverting Statement of Facts (“Defs.’ Resp. SOF”) (Doc.

23 129) at 3:13-14, ¶ 2.

24

Documentary evidence submitted on a summary judgment

25 motion “must be authenticated and attached to a declaration

26 wherein the declarant is the person through whom the exhibits

27 could be admitted into evidence.” Bias v. Moynihan, 508 F.3d

28 1212, 1224 (9th Cir. 2007) (citation omitted); see also Orr v.

- 4 -

1 Bank of America, 285 F.3d 764, 773 (9th Cir. 2002) (citations

2 and footnote omitted) (“Authentication is a condition precedent

3 to admissibility” and “unauthenticated documents cannot be

4 considered in a motion for summary judgment.”) The Ninth

5 Circuit has “repeatedly held that unauthenticated documents

6 cannot be considered in a motion for summary judgment.” Orr,

7 285 F.3d at 773. This authentication requirement is “satisfied

8 by evidence sufficient to support a finding that the matter in

9 question is what its proponent claims[,]” Fed.R.Evid. 901(a),

10 or if the document is self-authenticating pursuant to

11 Fed.R.Evid. 902. The plaintiffs have shown neither. Therefore,

12 the court will not consider the unsigned September 29, 2005,

13 letter due to a lack of foundation.

14

For substantially similar reasons, the court also will not

15 consider what purports to be “Minutes of the Committee on

16 Judiciary re: H.B. 2539, Arizona House of Representatives, 47th

17 Legislature, First Regular Session (February 10, 2005).” Pls.’

18 SOF (Doc. 121-1) at 3:14-17. Attempting to show legislative

19 intent, the plaintiffs recite from these Minutes several times.

20 The Minutes themselves are not part of the record, however; nor

21 have they been authenticated in any way.

22

Notwithstanding the parties’ objections, at bottom, the

23 undisputed facts pertaining to the pending summary judgment

24 motions are straightforward and few. In 2005, Arizona

25 criminalized human smuggling, making it a class 4 felony for a

26 “person to intentionally engage in the smuggling of human beings

27 for profit or commercial purpose.” A.R.S. § 13-2319(A)-(C)(1)-

28

- 5 -

1 (2) (Supp. 2010)4. The statutory definition of “[s]muggling of

2 human beings” is “transportation, procurement of transportation

3 or use of property or real property by a person or an entity

4 that knows or has reason to know that the person or persons

5 transported or to be transported are not United States citizens,

6 permanent resident aliens or persons otherwise lawfully in this

7 state or have attempted to enter, entered or remained in the

8 United States in violation of law.” A.R.S. § 13–2319(F)(3).

9

Significantly, the defendants do not dispute either the

10 existence of the Policy or its implementation. Indeed, they

11 expressly acknowledge that “[s]ince March of 2006, the [MCAO]

12 has reserved the prosecutorial discretion under Arizona law to

13 charge and prosecute persons for the state crime of conspiracy

14 under A.R.S. § 13-1003 to violate Arizona’s human smuggling

15 statute, A.R.S. § 13-2319.” Defendants’ Motion for Summary

16 Judgment (“Defs.’ SJM”) (Doc. 119) at 1:27-2:2. Along those

17 same lines, the defendants further acknowledge that the MCSO

18 “also enforces § 13-1003 as applied to § 13-2319 by arresting

19 individuals for, and detaining them under, the criminal charge

20 of conspiring to violate Arizona’s human smuggling statute when

21 probable cause exists to do so.” Id. at 2:5-7. Defendants also

22 point out that A.R.S. § 13-1006(B) recognizes that a person may

23

4

Section 13–2319 was amended by section four of “Support Our Law

24 Enforcement and Safe Neighborhoods Act,” as amended by H.B. 2162 (“S.B.

1070”). That amendment, which is not relevant here, “made only a minor
25 change to Arizona’s preexisting human smuggling statute, i.e., section

13–2319[,]” and did not affect its substantive scope. See We Are Am./Somos
26 Am., Coal. of Ariz. v. Maricopa Cnty. Bd. of Supervisors, 809 F.Supp.2d

1084, 1086 n. 1 (D.Ariz. 2011) (“WAA/SACA IV”) (citation omitted).
27

28

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1 commit conspiracy to commit an offense, even if that person

2 cannot be convicted of the offense itself.5

3

By June 2011, in accordance with the Policy, MCSO “deputies

4 had arrested at least 1,800 non-smugglers for conspiring to

5 violate § 13-2319.” Pls.’ SOF (Doc. 121-1) at 3, ¶ 3 (citations 6 omitted); see also Defs.’ Resp. SOF (Doc. 129) at 3, ¶ 3

7 (admit). And, “[a]s of March 2010, the [MCAO] had prosecuted

8 1,357 non-smugglers for conspiracy to violate § 13-2319.” Id. 9 at 4, ¶ 4 (citation omitted); see also Defs.’ Resp. SOF (Doc.

10 129) at 4, ¶ 4 (admit). At his August 23, 2012, deposition,

11 Maricopa County Sheriff Arpaio confirmed that the MCSO is 12 continuing to arrest “co-conspirators” and that the MCAO

13 continues to prosecute them. Pls.’ Exh. 1 (Doc. 121-2) at 36:5-

14 10.

15

The First Amended Complaint (“FAC”) alleges four separate

16 causes of action. Significantly however, believing they are

17 “clearly entitled” to summary judgment “on their first claim for 18 relief (preemption)[,]” the plaintiffs are “reced[ing] from

19 their remaining [three] claims[.]” Plaintiffs’ Responsive

20 Memorandum in Opposition to Defendants’ Motion for Summary 21 Judgment (“Pls.’ Resp.”) (Doc. 126) at 16:27-28, n. 5. This

22 obviates the need to consider much of the defendants’ summary

23

5

That statute provides as follows:

24

It is not a defense to a prosecution for

25

solicitation or conspiracy that the defendant

is, by definition of the offense, legally

26

incapable in an individual capacity of committing

the offense that is the object of the solicitation

27

or conspiracy.

28 A.R.S. § 13-1006(B).

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1 judgment motion, which addressed all four claims. What remains,

2 as mentioned at the outset, is the vigorously disputed issue of

3 federal preemption. The parties each argue their entitlement

4 to summary judgment on this issue. The defendants argue that

5 the Policy is not preempted by federal immigration law, whereas

6 the plaintiffs argue that it is preempted. Additionally, the

7 plaintiffs are seeking certification of two alternative classes,

8 as more fully discussed herein.

9

Discussion

10

“Bringing a class certification motion together with a Rule

11 56 motion[,]” as the plaintiffs have done, “is consistent with

12 the Federal Rules of Civil Procedure.” See Evon v. Law Offices 13 of Sidney Mickell, 688 F.3d 1015, 1032 (9th Cir. 2012) (citing

14 cases). At the outset, though, the court must determine which

15 motion to resolve first. In their summary judgment motion, the

16 defendants argue, inter alia, that each of the remaining named 17 plaintiffs6 “lack standing to bring this suit for equitable

18 relief.” Defs.’ SJM (Doc. 119) at 15:17. Similarly, in

19 opposing class certification, the defendants also argue that the 20 two municipal taxpayer plaintiffs, Dawn Haglund and David7

21

22

6

In We Are America/Somos America Coalition of Arizona v. Maricopa

Co. Bd. of Supervisors, 594 F.Supp.2d 1104 (D.Ariz. 2009) (“We Are America
23 II”), based upon Younger abstention, this court held that it lacked

jurisdiction to consider the claims of the six Mexican Nationals – a
24 holding which the Ninth Circuit affirmed. We Are America/Somos America

Coalition of Arizona v. Maricopa Co. Bd. of Supervisors, 386 Fed.Appx. 726,
25 727 (9th Cir. 2010).

26

7

The FAC’s caption accurately names David Lujan as a plaintiff,

but later it incorrectly refers to him as “Steve” Lujan” Compare FAC
27 (Doc. 45) at 1:23 with FAC (Doc. 45) at 8:13, ¶ 13. Despite this

misidentification, it is clear that David Lujan and “Steve” Lujan are the

28 same plaintiff.

- 8 -

1 Lujan, lack standing.

2

If the defendants are correct, and none of the plaintiffs

3 have standing, then this court would not have subject matter to

4 consider the merits, including class certification. See

5 Righthaven LLC v. Hoehn, 716 F.3d 1166, 1172 (9th Cir. 2013)

6 (“In the absence of standing, a federal court ‘lacks subject

7 matter jurisdiction over the suit.’”) (quoting Cetacean Cmty.

8 v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (citing Steel Co.

9 v. Citizens for a Better Env’t, 523 U.S. 83, 101, 118 S.Ct.

10 1003, 140 L.Ed.2d 210 (1998)). Therefore, the court will first

11 address the parties’ summary judgment motions. See Tech v.

12 U.S., 271 F.R.D. 451, 454 (M.D.Pa. 2010) (“[p]rior to rendering

13 a disposition on the Plaintiff’s class certification motion,

14 [the court] first consider[ed] the United States’[] motion to

15 dismiss . . . for lack of subject matter jurisdiction . . . ,

16 asserting that Tech lacks standing[]”); cf. Evon, 688 F.3d at

17 1032 (“While Rule 23 does not require a district court to fully

18 consider the merits of the plaintiffs’ claims, addressing the

19 merits of the claims in a related summary judgment motion can

20 have a substantial bearing on the required Rule 23

21 determinations.”)

22 I. Summary Judgment Motions

23

The court assumes familiarity with what has sometimes been

24 referred to as the Celotex trilogy wherein the Supreme Court

25 clarified and refined the standards for deciding Rule 56 summary

26 judgment motions. See Anderson v. Liberty Lobby, Inc., 477 U.S.

27 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v.

28 Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);

- 9 -

1 and Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475

2 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is no

3 need to repeat the entire body of summary judgment case law

4 which has developed since then. That is especially so given

5 that there are no material facts in dispute and the pending

6 motions turn on legal issues, making them proper for resolution

7 pursuant to Fed.R.Civ.P. 56. See Liberty Lobby, 477 U.S., at

8 250.

9

The summary judgment standards do not “change when the

10 parties file cross-motions for summary judgment: the court must

11 apply the same standard and rule on each motion independently

12 because the granting of one motion does not necessarily

13 translate into the denial of the other unless[,]” as here, “the

14 parties rely on the same legal theories and same set of material

15 facts.” See Feezor v. Excel Stockton, LLC, 2013 WL 2485623, at

16 *2 (E.D.Cal. June 10, 2013) (citing Pintos v. Pac. Creditors

17 Ass’n., 605 F.3d 665, 674 (9th Cir. 2010), cert. denied sub nom.

18 Experian Info. Solutions, Inc. v. Pintos, 562 U.S. ––––, 131

19 S.Ct. 900 (2011)).

20

A. Standing

21

Defendants assert that a party’s standing “is a fundamental

22 threshold inquiry[,]” while simultaneously asserting that

23 plaintiffs’ lack of standing is a “final reason” for granting

24 summary judgment. Defs.’ SJM (Doc. 119) at 15:16 (citation

25 omitted) (emphasis added). If the plaintiffs lack standing

26 then, as previously explained, this court would lack subject

27 matter jurisdiction. Therefore, even though lack of standing

28 is the defendants’ last asserted basis for seeking summary

- 10 -

1 judgment, the court must address that argument first.

2

Earlier in this litigation the defendants brought a

3 “strictly facial[]” challenge to standing, arguing for dismissal

4 pursuant to Fed. R. Civ. P. 12(b)(1). WAA/SACA IV, 809

5 F.Supp.2d at 1089 and n.4. Denying that motion, this court 6 found that the plaintiffs had sufficiently alleged

7 organizational standing as to We Are America/Somos America

8 Coalition of Arizona (“WAA/SACA”) and the American Hispanic 9 Community Forum (“AHCF”),8 and municipal taxpayer standing as to 10 plaintiffs David Lujan and LaDawn Haglund.9

11

Now, however, the standing issue is before the court in a

12 different procedural posture -– on a summary judgment motion.

13 Essentially the defendants are arguing that the plaintiffs’

14 evidence is insufficient to confer standing upon any of them 15 because their grievances are too general to establish the

16 requisite Article III injury in fact. The plaintiffs retort

17 that “the uncontroverted evidence establishes both 18 organizational and taxpayer plaintiffs’ standing.” Pls.’ Resp.

19 (Doc. 126) at 8:19-20 (emphasis omitted).

20

Mere allegations were sufficient to establish standing with

21 respect to the defendants’ earlier motion to dismiss, but at

22

23

8

This court also found that the FAC adequately alleged

organizational standing as to plaintiff Friendly House. Since then,
24 however, the parties have stipulated to the dismissal of Friendly House and

others, leaving only two organizational plaintiffs. See Ord. (Doc. 109) at
25 2.

26

9

This court previously also found that the FAC adequately alleged

municipal taxpayer standing as to plaintiffs Kyrsten Sinema and Cecilia
27 Menjivar. Since then, however, the parties have stipulated to their

dismissal, leaving Haglund and Lujan as the municipal taxpayer plaintiffs.

28 See Ord. (Doc. 109) at 2.

- 11 -

1 this juncture more is required. “In response to a summary

2 judgment motion . . . to establish Article III standing, a

3 plaintiff can no longer rest on ‘mere allegations’ but must set

4 forth by affidavit or other admissible evidence ‘specific facts’

5 as delineated in Federal Rule of Civil Procedure 56(e) as to the

6 existence of such standing.” Gerlinger v. Amazon.com Inc., 526 7 F.3d 1253, 1255-1256 (9th Cir. 2008) (quoting Lujan v. Defenders

8 of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351

9 (1992)).

10

1. Municipal Taxpayers10

11

“‘[I]mproper expenditure of public funds’ is the crux of

12 any claim that a municipal taxpayer satisfies the injury in fact

13 prong of constitutional standing[,]” as fully discussed in

14 WAA/SACA IV, 809 F.Supp.2d at 1108 (citing Cammack v. Waihee, 15 932 F.2d 765, 770 (9th Cir. 1991)). “As recently as 2008, the

16 Ninth Circuit has reaffirmed this view.” Id. (citing 17 Barnes–Wallace v. City of San Diego, 530 F.3d 776, 786 (9th Cir.

18 2008) . . . (“[M]unicipal taxpayers must show an expenditure of

19 public funds to have standing.”)) “In fact, the premise that an

20 ‘unconstitutional expenditure of government funds can itself be

21 injury enough to confer municipal-taxpayer standing’ is not

22 unremarkable as a general proposition.” Id. (quoting Smith 23 v. Jefferson County Bd. of School Com’rs, 641 F.3d 197, 213 (6th

24 Cir. 2011) (citation omitted) (Sixth Circuit noted that its

25 “sister circuits[,]” including the Ninth in Cammack, “all agree”

26

27

10 The court incorporates by reference as if fully set forth herein

its discussion of the governing standing principles and ensuing analysis in

28 WAA/SACA IV, 809 F.Supp.2d at 1089-1112.

- 12 -

1 with that general proposition).

2

Succinctly put, Article III standing comprises three

3 elements: (1) injury in fact; (2) causal connection; and

4 (3) redressability. See Barnum Tiber Co. v. U.S. Environmental 5 Protection Agency, 633 F.3d 894, 897 (9th Cir. 2011). Given

6 that the defendants are once again confining their argument to

7 the injury in fact element, presumably they are conceding, as 8 this court previously found, that the municipal taxpayer11

9 plaintiffs have shown the latter two standing elements. See

10 WAA/SACA IV, 809 F.Supp.2d at 1105. The court will confine its

11 analysis accordingly.

12

The defendants make the blanket assertion that municipal

13 taxpayer plaintiff LaDawn Haglund lacks standing because her

14 “injury . . . is simply a generalized grievance that she does

15 not like any tax money, . . . , being used for governmental

16 decisions she disagrees with as a matter of public policy, such

17 as the Policy.” Defs.’ SJM (Doc. 119) at 16:26-17:2 (citation

18 omitted). This is the sum total of the defendants’ standing

19 “argument” as to plaintiff Haglund. Overlooking the lack of any

20 analysis, the court is compelled to comment upon the liberties

21 which the defendants have taken in describing the portion of

22 plaintiff Haglund’s deposition to which they cite.

23

In that snippet, plaintiff Haglund was explicitly asked,

24 “[W]hat is the injury to you because of th[is] [P]olicy[?]”

25 Defs.’ Exh. C (Doc. 120-1) at 18:5-6. Directly responding,

26

27

11 Because it is no longer necessary to distinguish between federal,

state and municipal taxpayers, hereinafter all references to taxpayers

28 shall be read as referring to the municipal taxpayer plaintiffs.

- 13 -

1 plaintiff Haglund stated, “[M]y “tax money is being used to

2 house and prosecute and detain non-criminals, in my view,

3 economic migrants and treating them as criminals.” Id. at

4 18:13-15. Describing this use of her tax money as “a misuse in

5 many ways[,]” plaintiff Haglund further testified that given the

6 “federal rules . . . for dealing with immigrants, . . . using

7 . . . my tax dollars to prosecute economic migrants detracts

8 from prosecuting real criminals.” Id. at 18:16-20.

9

This testimony cannot be reasonably interpreted to support

10 defendants’ characterization thereof. Plainly, the foregoing

11 does not show a “generalized grievance that [plaintiff Haglund]

12 does not like any tax money . . . being used for governmental

13 decisions she disagrees with as a matter of public policy[.]”

14 See Defs.’ SJM (Doc. 119) at 16:27-17:1 (citation omitted)

15 (emphasis added). Rather, plaintiff Haglund responded to a

16 narrowly tailored question regarding any injury to her as a

17 result of the Policy, and she responded accordingly. She was

18 not asked about any “governmental decisions” beyond the Policy.

19 Obviously then, there is no way to know from the cited

20 testimony how plaintiff Haglund views other governmental

21 decisions as to the expenditure of her tax dollars. Even

22 assuming the existence of such testimony, it would be

23 irrelevant. Consequently, the court gives no credence to the

24 defendants’ depiction of plaintiff Haglund’s testimony, which

25 does nothing to advance their argument that she lacks standing.

26

Not only is there no factual basis for that defense

27 argument, but there is no legal basis for it either. As this

28 court previously found, the municipal taxpayers sufficiently

- 14 -

1 alleged the requisite injury in fact by alleging their status

2 as municipal taxpayers and the improper expenditure of municipal

3 funds. See WAA/SACA IV, 809 F.Supp.2d at 1104-1109. The

4 plaintiffs’ evidence offered in support of their summary

5 judgment motion substantiates the FAC’s allegations as to

6 plaintiff Haglund’s standing as a municipal taxpayer.

7

First, plaintiff Haglund’s status as a Maricopa County

8 taxpayer is undisputed. Since 2005, she has been a Maricopa

9 County resident. See Pls.’ Supp. Exh. 19 (Doc. 126-3) at 68:11-

10 16. From 2005 until 2011, she owned real property in Maricopa

11 County and paid property taxes thereon. Id. at 68:17-23. In

12 October 2011, plaintiff Haglund began renting a house in

13 Maricopa County. Id. at 69:6-13. She is charged for and pays

14 property taxes and rent on that residence. Id. at 69:14-70:14.

15 By statute, such taxes are paid to the treasury of Maricopa

16 County which “shall apportion and apply the[m] . . . to the

17 several special and general funds as provided by law.” See

18 A.R.S. § 11-492.

19

In addition to property taxes, as a Maricopa County

20 resident, plaintiff Haglund pays a “special sales tax[]” – the

21 “Jail Excise Tax.” See Pls.’ Supp. Exh. 20 (Doc. 126-3) at 90;

22 see also Pls.’ Exh. 1 (Doc. 121-2) at 39:15-17 (Defendant Arpaio

23 testified that “the operations of the [County] jails come from

24 a tax that was passed by the people of this [C]ounty several

25 years ago[]” — “a special budget[.]”) This Jail Excise Tax is

26 used to “fund construction and operation of adult and juvenile

27 detention facilities[]” where defendants detain, among others,

28 those arrested pursuant to the Policy. See Pls.’ Supp. Exh. 20

- 15 -

1 (Doc. 126-3) at 90. In fiscal year 2011, Maricopa County

2 collected $112,451,802.00. Id. This Tax will continue until

3 approximately 2027. See id.

4

Besides establishing that plaintiff Haglund is a Maricopa

5 County taxpayer, the evidence bears out the FAC’s allegations

6 that County funds are being expended to carry out the Policy.

7 County taxes, such as those paid by plaintiff Haglund, are used

8 for a variety of MCSO’s activities related to the Policy, as

9 defendant Arpaio admits. As defendant Arpaio admitted, those

10 activities include: (1) “training MCSO deputies to detect and

11 arrest persons who conspire to transport themselves in violation

12 of A.R.S. § 13-2319[;]” (2) “transport[ing] persons arrested for

13 conspiring to transport themselves in violation of” that

14 statute; and (3) “jail[ing] persons arrested for conspiring to

15 transport themselves in violation of A.R.S. § 13-2319.” Pls.’

16 Supp. Exh. 11 (Doc. 126-2) at 77:12-14, ¶ 63; 77:16-18, ¶ 64;

17 and 77:9-10, ¶ 62.

18

County taxes are likewise being expended by the MCAO to

19 carry out the Policy, as defendant Maricopa County Attorney

20 Montgomery admits. The defendant Maricopa County Board of

21 Supervisors “appropriates funds for the operations of the MCAO.”

22 Pls.’ Supp. Exh. exh. 12 (Doc. 126-2) at 93:27-94:1, ¶ 72. The

23 MCAO, in turn, “spends tax revenues to prosecute persons for

24 conspiring to transport themselves in violation of A.R.S. § 13-

25 2319[,]” as well as for training personnel to conduct such

26 prosecutions, as defendant Montgomery also admits. Id. at 93:4-

27 10, ¶¶ 68-69.

28

Furthermore, the defendants concede that “[b]y June 10,

- 16 -

1 2011, [MCSO] deputies had arrested at least 1,800 non-smugglers

2 for conspiring to violate § 13-2319[;]” and “[a]s of March 2010,

3 the [MCAO] had prosecuted 1,357 non-smugglers” for that same

4 crime. Pls.’ SOF (Doc. 121-1) at 3:26-4:7, ¶¶ 3 and 4

5 (citations omitted); see also Defs.’ Resp. SOF (Doc. 129) at

6 3:15-16. It costs $91.73 per day to detain an individual in the 7 Maricopa County jail.12 Pls.’ Supp. Exh. 18 (Doc. 126-3)

8 (Maricopa Co. Justice System Annual Activities Report FY 2011)

9 at 44. This evidence confirms the expenditure of plaintiff

10 Haglund’s County taxes to arrest, detain, and prosecute

11 individuals pursuant to the Policy.

12

In short, plaintiffs’ evidence fully corroborates the FAC’s

13 allegations that Ms. Haglund is a municipal taxpayer, as well

14 as the expenditure of Maricopa County taxes in connection with

15 the Policy. There is thus no dispute that she satisfies the

16 injury in fact prong of municipal taxpayer standing – the only

17 element with which the defendants take issue. Cf. Page v. Tri-

18 City Healthcare District, 806 F.Supp.2d 1154, 1165 (S.D.Cal.

19 2012) (no municipal taxpayer standing where plaintiff did not

20 “show[] an expenditure of public funds[]” and “provided no

21 evidence indicating how much money had been spent” regarding the

22 challenged conduct “or where the funds came from[]”).

23

Tellingly, in the face of this undisputed evidence, the

24 defendants’ reply is conspicuously silent on the issue of

25 standing. The defendants do not contest plaintiffs’ evidence

26

27

12 This figure was derived by dividing the total number of jailed

adults in fiscal year 2011 by the total spent for detaining those adults.

28 See Pls.’ Controverting SOF, exh. 18 thereto (Doc. 126-3) at 44.

- 17 -

1 or legal position in any way. For all of these reasons, the

2 court finds that plaintiff Haglund has standing as a municipal

3 taxpayer. Thus, the court denies this aspect of defendants’

4 summary judgment motion.

5

There are no readily discernible differences between

6 taxpayer plaintiffs Haglund and Lujan in terms of the evidence

7 pertaining to their standing. Plaintiff Lujan is a Maricopa

8 County resident of longstanding and “regularly pays taxes to

9 Maricopa County, including, but not limited to, the . . . Jail

10 Excise Tax[.]” Pls’. Controverting SOF (Doc. 126-3), exh. 17

11 thereto (Lujan Decl’n) at 191, ¶ 2. And, the plaintiffs are

12 proffering the same undisputed evidence outlined above to

13 establish his standing as a taxpayer. See Pls.’ Resp. (Doc.

14 126) at 9:11-10:26.

Despite that, the defendants,

15 inconsistently, are not challenging plaintiff Lujan’s standing.

16 Nonetheless, the evidence which supports a finding of taxpayer

17 standing as to plaintiff Haglund supports the same finding as

18 to plaintiff Lujan. Thus, both taxpayer plaintiffs have

19 standing to pursue the preemption claim. See Haro v. Sebelius,

20 2013 WL 4734032, at *4 (9th Cir. Sept. 4, 2013) (quoting

21 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct.

22 1854, 164 L.Ed.2d 589 (2006)) (“[A] plaintiff must demonstrate

23 standing for each claim[.]’”)

24

“[S]tanding is not dispensed in gross[,]” however. Lewis

25 v. Casey, 518 U.S. 343, 358 n. 6, 116 S.Ct. 2174, 135 L.Ed.2d

26 606 (1996). Therefore, the court’s inquiry cannot end here.

27 It also must decide whether the taxpayer plaintiffs have

28 “‘standing . . . for each form of relief sought.’” See Haro,

- 18 -

1 2013 WL 4734032, at *4 (quoting DaimlerChrysler, 547 U.S., at

2 352). The difference between the FAC and the plaintiffs’ summary

3 judgment motion, in terms of the relief sought, requires the

4 court to first ascertain exactly what types of relief the

5 plaintiffs are seeking.

6

In their prayer for relief, the plaintiffs are seeking

7 declaratory and injunctive relief, as well as attorneys’ fees

8 and costs pursuant to 42 U.S.C. § 1988(b). FAC (Doc. 45) at 28-

9 29, ¶¶ 3-5. In their summary judgment motion, however, the

10 plaintiffs are expanding the scope of the relief. Now, the

11 plaintiffs are also seeking “to make whole class members

12 previously injured by defendants detaining, arresting, and

13 prosecuting non-smuggler migrants for conspiracy to transport

14 themselves in violation of Ariz. Rev. Stat. § 13-2319[.]” Pls.’

15 SJM (Doc. 121) at 3:5-9 (emphasis added). The plaintiffs’

16 proposed summary judgment order reveals the nature of such

17 relief. More specifically, the plaintiffs request that the

18 “[c]onvictions secured against persons for conspiring to

19 transport themselves, and no one else, in purported violation

20 of Ariz. Rev. Stat. § 13-2319 are inconsistent with the

21 Supremacy Clause, U.S. Const., Art. VI, cl. 2, and are

22 accordingly declared null and void.” Proposed Summary Judgment

23 Order (Doc. 123) at 2:2-5, ¶ 3.

24

The court will not consider whether the taxpayer plaintiffs

25 (or, for that matter, the organizational plaintiffs) have

26 standing to pursue this belated request for retrospective

27 declaratory relief. In the first place, neither of the

28 plaintiffs’ two proposed class definitions includes putative

- 19 -

1 class members who were “previously injured by” the Policy. See

2 id. at 3:6. As plaintiffs themselves define it, their first

3 proposed class is: “All individual who are . . . stopped,

4 detained, arrested, incarcerated, prosecuted, or penalized for

5 conspiring to transport themselves, and themselves only, in

6 violation of Ariz. Rev. Stat. § 13-2319[.]” Class Certification

7 Mot. (Doc. 122) at 5:26-28 (emphasis added). The second

8 proposed class pertains to municipal taxpayers. Thus, even

9 assuming arguendo that the court were to grant class

10 certification to both classes, by plaintiffs’ own definition,

11 neither would include “class members previously injured” by the

12 Policy. See Pls.’ SJM (Doc. 121) at 3:6.

13

The second reason for declining to consider whether any of

14 the plaintiffs have standing to pursue retrospective declaratory

15 relief is that this request is belated and has not been

16 adequately addressed by the plaintiffs. The plaintiffs did not

17 seek this form of relief in their FAC. In the final paragraph

18 of the FAC, the plaintiffs do request the court to “[g]rant such

19 further relief as [it] deems just.” FAC (Doc. 45) at 29, ¶ 6.

20 That boilerplate phrase is insufficient to put the defendants

21 on notice that as part of this lawsuit the plaintiffs are asking

22 this federal court to nullify potentially thousands of prior

23 state court convictions.

24

Rule 54(c) does permit a court to “grant the relief to

25 which each party is entitled, even if the party has not demanded

26 that relief in its pleadings.” Fed.R.Civ.P. 54(c). The

27 plaintiffs certainly have not shown their entitlement to this

28 particular relief, however. They only mention it once in

- 20 -

1 passing in their summary judgment motion, and then include it

2 in a proposed order submitted in connection with that motion.

3 The lack of any briefing on plaintiffs’ supposed entitlement to

4 retrospective declaratory relief is problematic because it is

5 not a “predictable remedy” as to their preemption claim. Contra

6 Mueller v. Auker, 2010 WL 2265867, at *5 (D.Idaho June 4, 2010)

7 (“A predictable remedy for constitutional violations includes

8 declaratory and injunctive relief[.]”) Lastly, the court is

9 concerned about possible prejudice to the defendants given that

10 the plaintiffs’ demand for this retrospective declaratory relief

11 was explicitly raised for the first time in their proposed

12 summary judgment order.

13

Having determined that the potential available relief in

14 this case is prospective declaratory and injunctive relief, the

15 court will next address whether the taxpayer plaintiffs have

16 standing to seek such relief. “‘The standing formulation for

17 a plaintiff seeking prospective injunctive relief’ generally

18 requires that the plaintiff’s concrete injury be ‘coupled with

19 ‘a sufficient likelihood that he will again be wronged in a

20 similar way.’’” Haro, 2013 WL 4734032, at *4 (quoting Bates v.

21 United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en

22 banc) ((quoting in turn City of Los Angeles v. Lyons, 461 U.S.

23 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). “In addition,

24 the claimed threat of injury must be likely to be redressed by

25 the prospective injunctive relief.” Bates, 511 F.3d 985

26 (citation omitted). That does not mean “‘‘that a favorable

27 decision will inevitably redress [their injuries][.]’’” See

28 Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 993 (9th Cir.

- 21 -

1 2012) (quoting Wilbur v. Locke, 423 F.3d 1101, 1108 (9th Cir.

2 2005) (internal quotations omitted, emphasis and alterations in

3 original) (quoting in turn Graham v. FEMA, 149 F.3d 997, 1003

4 (9th Cir. 1998), abrogated on other grounds by Levin v. Commerce

5 Energy, Inc., 560 U.S. 413, 130 S.Ct. 2323, 176 L.Ed.2d 1131

6 (2010)).” Rather, the “‘‘[p]laintiffs must show only that a

7 favorable decision is likely to redress [their injuries][.]’’”

8 Id. That standard is met here.

9

The taxpayer plaintiffs have shown a concrete, “necessary

10 injury – actual expenditure of tax dollars” vis-a-vis the

11 Policy. See Cammack v. Waihee, 932 F.2d 765, 772 (9th Cir.

12 1991). Furthermore, the defendants admit that they “continue

13 to . . . arrest and prosecute” persons for conspiring to

14 transport themselves in violation of Arizona’s human smuggling

15 statute. See Pls.’ SOF (Doc. 121-1) at 4:8-10, ¶ 5; see also

16 Defs.’ Resp. SOF (Doc. 129) at 3:17-4:6, ¶ 5. Therefore, the

17 injury to the taxpayer plaintiffs continues unabated.

18 Consequently, there is “a sufficient likelihood” that the

19 taxpayer plaintiffs “will again be wronged in a similar way[,]”

20 i.e., by having their County taxes expended to enforce a Policy

21 which they maintain federal law preempts. See Haro, 2013 WL

22 4734032, at *4 (internal quotation marks and citations omitted).

23

Additionally, the claimed threat of injury – the misuse of

24 the taxpayers’ County taxes to fund the Policy – is likely to

25 be remedied by prospective injunctive and declaratory relief.

26 As plaintiff Lujan succinctly put it, enjoining the Policy would

27 mean that his “local tax payments would no longer be diverted

28 to th[e] unlawful purpose” of the Policy. Pls.’ Supp. Exh. 17

- 22 -

1 (Doc. 126-3) at 42, ¶ 4. This is fully consistent with the long

2 held view, as laid out in WAA/SACA IV, 809 F.Supp.2d 1084, that

3 “‘[t]he interest of a taxpayer of a municipality in the

4 application of its moneys is direct and immediate and the remedy

5 by injunction to prevent their misuse is not inappropriate.’”

6 Id. at 1106 (quoting Frothingham v. Mellon, 262 U.S. 447, 486-

7 487, 43 S.Ct. 597, 67 L.Ed. 1078 (1923)). For all of these

8 reasons, the court finds that plaintiffs Haglund and Lujan have

9 municipal taxpayer standing as to the preemption claim and as

10 to the prospective equitable relief sought. Thus, the court

11 denies this aspect of defendants’ summary judgment motion.

12

If the court finds, as it has, that the municipal taxpayer

13 plaintiffs have standing, then, they contend (and the defendants

14 do not disagree), that there is no need to consider whether the

15 organizational plaintiffs also have standing. Plaintiffs base

16 their contention upon the “general rule [in] federal court

17 suits with multiple plaintiffs . . . that once the court

18 determines that one of the plaintiffs has standing, it need not

19 decide the standing of the others.” See Melendres v. Arpaio, 695

20 F.3d 990, 999 (9th Cir. 2012) (quoting Leonard v. Clark, 12 F.3d

21 885, 888 (9th Cir. 1993)). In Melendres, Latino motorists and

22 passengers and the organization Somos America, brought an action

23 under § 1983 alleging that the MCSO and Sheriff Arpaio, among

24 others, engaged in a policy of racially profiling Latinos in

25 connection with traffic stops. Applying that general rule in

26 Melendres, the Ninth Circuit, after finding that Latino

27 motorists and passengers had standing, expressly declined to

28 “address whether Somos America, an organization, met the

- 23 -

1 requirements for associational standing.” Id.

2

This court did depart from that general rule in WAA/SACA

3 IV, 809 F.Supp.2d at 1090-1094, as the parties are well aware.

4 The standing issue is before the court now in a different

5 procedural posture --– on a motion for summary judgment motion, 6 not on a motion to dismiss. Consequently, as it strongly

7 intimated in WAA/SACA IV, having found that the municipal

8 taxpayer plaintiffs have standing as to the preemption claim and 9 for the relief sought, the court will not address whether the

10 WAA/SAC and AHFC, the organizational plaintiffs, also have

11 standing. See id. at 1093 (“By contrast, if defendants were 12 moving for summary judgment on the dual grounds of lack of

13 standing and the merits, plaintiffs’ argument that the court

14 need not reach the issue of organizational plaintiffs’ standing, 15 if it finds that the taxpayers have standing, would carry far

16 more weight.”) It is simply not necessary.

17 B. Federal Preemption13

18

The plaintiffs are pursuing only their “Federal Preemption”

19 claim, opting for voluntary dismissal of their other claims.

20 See FAC (Doc. 45) at 25:25. The plaintiffs allege that the 21 Policy “is an impermissible attempt by state actors to regulate

22 immigration, and as such unlawfully usurps the federal

23

24

13 As the defendants acknowledge, although the preemption issue

arose earlier in this case in a different context, the court “has not
25 dispositively ruled on whether the Policy is preempted by federal

immigration law.” Defs.’ SJM (Doc. 119) at 2:19, n. 1. Therefore, nothing
26 about those prior decisions precludes revisiting the preemption anew. This

is all the more so given: (1) the completion of discovery, and hence a more
27 fully developed record; (2) the federal preemption issue is squarely raised

by the parties’ summary judgment motions; and (3) the evolving state of the

28 law in this area.

- 24 -

1 government’s exclusive power to regulate immigration in 2 violation of the United States Constitution”14 and the

3 Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq.

4 (“INA”). Id. at 25:28-26:2, ¶ 53. In moving for summary

5 judgment on this claim, the plaintiffs argue that federal law

6 impliedly preempts the Policy. Contrariwise, the defendants

7 argue that federal law does not impliedly preempt the Policy.

8 The defendants thus assert that they, and not the plaintiffs,

9 are entitled to summary judgment on the issue of field

10 preemption.

11

Before considering the parties’ preemption arguments,

12 there is one prefatory issue. From the inception of this

13 lawsuit, the plaintiffs made a seemingly deliberate choice to

14 challenge only the Policy --- and not A.R.S. § 13-2319. The

15 defendants are taking the position, however, that because the

16 plaintiffs are not attacking the constitutionality of A.R.S.

17 § 13-2319, or arguing that federal law preempts that state

18 statute, they cannot argue that federal law preempts the Policy

19 itself. The defendants offer no legal support for this novel

20 proposition. The allegations of plaintiffs’ FAC and the legal

21 theories which they pursue are their prerogative. The court,

22 therefore, agrees with the plaintiffs that they may challenge

23 the Policy as conflict and field preempted “regardless of § 13-

24 2319's facial constitutionality.” See Pls.’ Reply (Doc. 134)

25 at 9:20-21.

26
14 The constitutional basis for plaintiffs’ argument is Congress’
27 power “[t]o establish an uniform Rule of Naturalization[,]” and its power
“[t]o regulate Commerce with foreign Nations[.]” See U.S. Const. Art. I,
28 § 8, cls. 3-4.

- 25 -

1

“The Supremacy Clause provides a clear rule that federal

2 law ‘shall be the supreme Law of the Land; and the Judges in

3 every State shall be bound thereby, any Thing in the

4 Constitution or Laws of any State to the Contrary

5 notwithstanding.’” Arizona v. U.S., 567 U.S. ----, 132 S.Ct.

6 2492, 2500, 183 L.Ed.2d 351 (2012) (quoting U.S. Const. Art. VI,

7 cl. 2). It is thus “[a] fundamental principle of the

8 Constitution . . . that Congress has the power to preempt state

9 law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372,

10 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) (citations omitted).

11 Moreover, on “the subject of immigration and the status of

12 aliens[,]” “[t]he Government of the United States has broad,

13 undoubted power[.]” Arizona, 132 S.Ct., at 2498 (citations

14 omitted); see also DeCanas v. Bica, 424 U.S. 351, 354, 96 S.Ct.

15 933, 47 L.Ed.2d 43 (1976), superseded by statute on other

16 grounds as stated in Chamber of Comm. v. Whiting, 563 U.S. ----,

17 131 S.Ct. 1968, 179 L.Ed.2d 1031 (2011) (The “[p]ower to

18 regulate immigration is unquestionably exclusively a federal

19 power.”) Indeed, that power is “well settled[,]” reflective of,

20 among other things, the fact that “[i]mmigration policy can

21 affect trade, investment, tourism, and diplomatic relations for

22 the entire Nation, as well as the perceptions and expectations

23 of aliens in this country who seek the full protection of its

24 laws.” Arizona, 132 S.Ct., at 2498 (citations omitted).

25

This federal immigration power derives, in part, from the

26 federal government’s “constitutional power to ‘establish an

27 uniform Rule of Naturalization,’ . . . , and its inherent power

28 as sovereign to control and conduct relations with foreign

- 26 -

1 nations[.]” Id. (citations omitted). That said, the Supreme

2 Court “has never held that every state enactment which in any

3 way deals with aliens is a regulation of immigration and thus

4 per se pre-empted by this constitutional power[.]” DeCanas, 424

5 U.S., at 355 (citations omitted).

6

Federal preemption can be either express or implied. Gade

7 v. National Solid Wastes Management Assn., 505 U.S. 88, 98, 112

8 S.Ct. 2374, 120 L.Ed.2d 72 (1992). Implied preemption is the

9 only issue which these summary judgment motions raise, however.

10 Implied preemption comprises two, albeit “not rigidly

11 distinct[,]” subcategories, –- field and conflict preemption.

12 Crosby, 530 U.S., at 372 n. 6 (internal quotation marks and

13 citation omitted). Field preemption precludes States “from

14 regulating conduct in a field that Congress, acting within its

15 proper authority, has determined must be regulated by its

16 exclusive governance.” Arizona, 132 S.Ct., at 2501 (citation

17 omitted). Conflict preemption occurs where “compliance with

18 both federal and state regulations is a physical

19 impossibility[.]” Florida Lime & Avocado Growers, Inc. v. Paul,

20 373 U.S. 132, 142–143, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963).

21 It can also occur in “those instances where the challenged state

22 law ‘stands as an obstacle to the accomplishment and execution

23 of the full purposes and objectives of Congress[.]’” Arizona,

24 132 S.Ct., at 2501 (quoting Hines, 312 U.S., at 67, 61 S.Ct.

25 399). In the present case, the parties’ conflict preemption

26 arguments center on actual and obstacle preemption, as opposed

27 to impossibility. The court will similarly confine its

28 analysis.

- 27 -

1

“There are ‘two cornerstones’ of preemption jurisprudence.”

2 Aguayo v. U.S. Bank, 653 F.3d 912, 917 (2011) (quoting Wyeth v.

3 Levine, 555 U.S. 555, 129 S.Ct. 1187, 1194, 173 L.Ed.2d 51

4 (2009). First, “[r]egardless of the type of preemption involved

5 . . . ‘[t]he purpose of Congress is the ultimate touchstone of

6 pre-emption analysis.’” Gilstrap v. United Air Lines, Inc., 709

7 F.3d 995, 1003 (9th Cir. 2013) (quoting Cipollone v. Liggett

8 Grp., Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407

9 (1992) (internal quotation marks omitted)). Second, a court

10 “should assume that ‘the historic police powers of the States’

11 are not superseded ‘unless that was the clear and manifest

12 purpose of Congress.’” See Arizona, 132 S.Ct., at 2501 (quoting

13 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct.

14 1146, 91 L.Ed. 1447 (1947)) (other citation omitted). With

15 these principles firmly in mind, the court will first consider

16 whether federal law, and more particularly the INA, preempts the

17 Policy.

18

1. Field Preemption

19

The crux of the defendants’ field preemption argument

20 is the latter principle. That is, the defendants argue that

21 they should prevail on the field preemption issue because the

22 plaintiffs cannot “prove . . . that it was ‘the clear and

23 manifest purpose of Congress’ to oust state power from the

24 field” of alien smuggling. Defs.’ SJM (Doc. 119) at 8:25-9:1

25 (citing, inter alia, DeCanas, 424 U.S., at 357) (emphasis added

26 by defendants). On the other hand, the plaintiffs argue that

27 because Congress “fully regulates conspiracies to transport

28 unauthorized entrants[,]” the Policy is field preempted. Pls.’

- 28 -

1 SJM (Doc. 121) at 10:5-6. In making this argument, the

2 plaintiffs rely upon the Supreme Court’s rationale in Arizona,

3 132 S.Ct. 2492. Pls.’ SJM (Doc. 121) at 10:7. There, the

4 Supreme Court held, inter alia, that because “the Federal

5 Government has occupied the field of alien registration[,]”

6 § 3 of S.B. 1070, which made it a state misdemeanor to fail to

7 comply with federal alien registration requirements, was field

8 preempted. Id. at 2502 (citations omitted).

9

The plaintiffs also heavily rely upon two Eleventh Circuit

10 decisions – Georgia Latino Alliance for Human Rights v. Deal, 11 691 F.3d 1250, 1256 (11th Cir. 2012) (“GLAHR”); and United 12 States v. Alabama, 691 F.3d 1269, 1285 (11th Cir. 2012), cert.

13 denied, 569 U.S. ----, 133 S.Ct. 2022, 185 L.Ed.2d 905 (Apr. 29,

14 2013). As part of sweeping immigration reform legislation in

15 2011, Georgia and Alabama criminalized a variety of activities

16 pertaining to unauthorized or illegal aliens, including

17 transporting, concealing or harboring such aliens. In GLAHR,

18 the Eleventh Circuit affirmed a district court’s finding that

19 those Georgia statutes were field preempted by the INA’s

20 criminal provisions, particularly 8 U.S.C. § 1324. GLAHR, 691

21 F.3d at 1285-1287; see also Alabama, 691 F.3d at 1285-1287

22 (applying GLAHR’s reasoning to finding similar Alabama statutes

23 field preempted); Valle del Sol v. Whiting, 2012 WL 8021265, at 24 *5 (D.Ariz. Sept. 5, 2012)15 (adopting the Eleventh Circuit’s

25 rationale, and holding that § 5 of S.B. 1070, Arizona’s

26

27

15 This appeal was argued and submitted in the Ninth Circuit on

April 2, 2013. Valle del Sol v. Whiting, No. 12-17152. A decision has yet

28 to be issued.

- 29 -

1 counterpart to the statutes at issue in GLAHR and Alabama, was

2 field preempted).

3

Maintaining that “[t]here is no principled way to

4 distinguish” the Policy from the state statutes at issue in

5 Arizona, GLAHR, Alabama, and Valle del Sol, the plaintiffs argue

6 that those cases are determinative of the field preemption issue

7 herein. See Pls.’ SJM (Doc. 121) at 11:7. The defendants’

8 rejoinder is that the Policy is “materially and substantively

9 different” from the challenged statutes in the cases just

10 listed. Defs.’ Reply (Doc. 132) at 4:4-5. Based upon those

11 claimed differences, the defendants argue that none of the cases

12 upon which the plaintiffs are relying apply to the field

13 preemption issue now before this court. The parties’ strong

14 dispute as to the applicability of Arizona and the Eleventh

15 Circuit’s decisions in GLAHR and Alabama require closer

16 examination of each.

17

In Arizona, to determine whether § 3 of S.B. 1070 intruded

18 on the field of alien registration, the Supreme Court began by

19 reiterating that “the States are precluded from regulating

20 conduct in a field that Congress, acting within its proper

21 authority, has determined must be regulated by its exclusive

22 governance.” Arizona, 132 S.Ct., at 2501 (citation omitted).

23 The Supreme Court also recited the well settled rule that “[t]he

24 intent to displace state law altogether can be inferred from a

25 framework of regulation ‘so pervasive . . . that Congress left

26 no room for the States to supplement it’ or where there is a

27 ‘federal interest . . . so dominant that the federal system will

28 be assumed to preclude enforcement of state laws on the same

- 30 -

1 subject.’” Id. (quoting Rice, 331 U.S., at 230) (other citation

2 omitted) (emphasis added).

3

Examining the history of federal alien registration

4 requirements against that legal backdrop, the Arizona Court held

5 that the federal government has occupied that field because

6 “[t]he federal statutory directives provide a full set of

7 standards governing alien registration, including punishment for

8 noncompliance[,] . . . designed as a harmonious whole.” Id.

9 (internal quotation marks and citation omitted). In such a

10 case, “[w]here Congress occupies an entire field,” the Supreme

11 Court found that “even complementary state regulation is

12 impermissible.” Arizona, 132 S.Ct., at 2502. Such state

13 regulation is “impermissible” because “[f]ield preemption

14 reflects a congressional decision to foreclose any state

15 regulation in the area, even if it is parallel to federal

16 standards.” Id. (citation omitted) (emphasis added).

17

The defendants assert that the plaintiffs’ “heavy reliance”

18 upon Arizona is “mistaken[,]” as the Supreme Court’s “analysis[]

19 is not controlling.” Defs.’ Resp. (Doc. 128) at 2:12 (emphasis

20 omitted); Defs.’ Reply (Doc. 132) at 3:6. The main basis for

21 this defense argument is the difference in subject matter.

22 Unlike the present case involving alien smuggling, the portion

23 of Arizona which the plaintiffs invoke dealt with alien

24 registration, and it has long been held “that the Federal

25 Government . . . occupie[s]” that field. See Arizona, 132

26 S.Ct., at 2502 (citations omitted). This distinction does not

27 render Arizona any less applicable here. That is because, as

28 discussed next, in GLAHR the Eleventh Circuit soundly reasoned,

- 31 -

1 and this court agrees, that Arizona “provides an instructive

2 analogy” even outside the realm of alien registration. See

3 GLAHR, 691 F.3d at 1264. In other words, Arizona’s significance

4 lies not in its subject matter but because it provides a useful

5 framework for examining preemption in the context of federal

6 immigration.

7

Broadly stated, Georgia enacted statutes criminalizing the

8 transport, concealment and harboring of illegal aliens, as

9 earlier mentioned. When confronted with the issue of whether

10 those statutes were preempted by the INA, the Eleventh Circuit

11 looked first to the text of 8 U.S.C. § 1324 to ascertain

12 Congressional intent. Section 1324 creates several discrete

13 crimes with respect to unlawfully present aliens. That statute

14 makes it a federal crime for any person to bring an alien into

15 the United States; to “transport or move an unlawfully present

16 alien within the United States; to conceal, harbor, or shield

17 an unlawfully present alien from detection; or to encourage or

18 induce an alien to come to, enter, or reside in the United

19 States.” Id. at 1263 (citation, internal quotation marks and

20 footnote omitted). It is also unlawful pursuant to § 1324 for

21 any person to conspire or aid in the commission of any of those

22 enumerated offenses. Id. (citation omitted).

23

“[P]ermit[ting] local law enforcement officers to arrest

24 for these violations of federal law,” while simultaneously

25 “maintaining exclusive jurisdiction” for “federal prosecution

26 in federal court[,]” provided further indicia of the

27 comprehensive framework of the INA, the GLAHR Court reasoned.

28 Id. at 1264 (citations omitted). The sweep of § 1324 includes

- 32 -

1 dictating evidentiary rules for one of the enumerated offenses,

2 as well as mandating a community outreach program regarding the

3 penalties associated with bringing in and harboring aliens in

4 violation of that statute. Citing to De Canas, 424 U.S. 351, the

5 Court in GLAHR, concluded that “[i]n the absence of a savings

6 clause permitting the regulation in the field, the inference

7 from these enactments is that the role of the states is limited

8 to arrest for violations of federal law.” Id. The foregoing

9 persuaded the Eleventh Circuit in GLAHR that “[t]he INA provides

10 a comprehensive framework to penalize the transportation,

11 concealment, and inducement of unlawfully present aliens.” Id.

12 at 1263.

13

To bolster this conclusion, the GLAHR Court examined

14 section 1324's place in the “larger context of federal statutes

15 criminalizing the acts undertaken by aliens[.]” Id. at 1264.

16 After so doing, the Court found that “the federal government has

17 clearly expressed more than a ‘peripheral concern’ with the

18 entry, movement, and residence of aliens within the United

19 States,” and that “the breadth of th[o]se laws illustrates an

20 overwhelmingly dominant federal interest in the field.” Id.;

21 accord Lozano v. City of Hazleton, 2013 WL 3855549, at *14 (3rd

22 Cir. July 26, 2013) (internal quotation marks and citation

23 omitted) (“We agree with the Eleventh Circuit and other courts

24 that have held that the federal government has clearly expressed

25 more than a peripheral concern with the entry, movement, and

26 residence of aliens within the United States and the breadth of

27 these laws illustrates an overwhelmingly dominant federal

28 interest in the field.”)

- 33 -

1

Furthermore, like the “federal registration scheme” in

2 Arizona, the Eleventh Circuit held that “Congress has provided

3 a ‘full set of standards’ to govern the unlawful transport and

4 movement of aliens.” Id. (quoting Arizona, 132 S.Ct., at 2502).

5 Continuing, and again relying upon Arizona, the GLAHR Court

6 found that “[t]he INA comprehensively addresses criminal

7 penalties for these actions undertaken within the borders of the

8 United States, and a state’s attempt to intrude into this area

9 is prohibited because Congress has adopted a calibrated

10 framework within the INA to address this issue.” Id. (citing

11 Arizona, 132 S.Ct., at 2502–03). The GLAHR Court’s final

12 justification for finding that the Georgia statute was field

13 preempted was that Congress did “not sanction[] concurrent state

14 legislation ‘on the subject covered by the challenged state

15 law.’” Id. at 1265 (quoting De Canas, 424 U.S., at 363).

16

Adopting wholesale GLAHR’s reasoning, the Eleventh Circuit

17 in Alabama, likewise held that “Alabama is prohibited from

18 enacting concurrent state legislation in this field of federal

19 concern[,]” Alabama, 691 F.3d at 1287, i.e., “the

20 transportation, concealment, and inducement of unlawfully

21 present aliens[.]” Id. at 1285 (internal quotation marks

22 omitted); see also U.S. v. South Carolina, 720 F.3d 518, 531

23 (4th Cir. 2013) (quoting Arizona, 132 S.Ct. 2501) (“find[ing]

24 the Eleventh Circuit’s reasoning persuasive[,]” and holding

25 that state statutes making it a felony to transport, move,

26 conceal, harbor, etc. unlawful aliens were “field preempted

27 because the vast array of federal laws and regulations on this

28 subject . . . , is ‘so pervasive . . . that Congress left no

- 34 -

1 room for the States to supplement it[]’”). Particularly

2 significant here is that much like the Policy, Alabama also

3 specifically criminalized “conspiring to transport an unlawfully

4 present alien, including an alien’s conspiracy to be

5 transported[.]” Alabama, 691 F.3d at 1285 (emphasis added).

6 South Carolina likewise made “it a state felony for[,]” among

7 other things, “an unlawfully present person to allow himself or

8 herself to be ‘transported or moved’ within the state[.]” South

9 Carolina, 720 F.3d at 529. The striking similarity between the

10 Policy and the Alabama and South Carolina statutes, which the

11 Eleventh and Fourth Circuits respectively found were field

12 preempted, further erodes the defendants’ contention that

13 Arizona and its progeny are not germane to the field preemption

14 herein.

15

The defendants also attempt to distinguish the GLAHR line

16 of cases because, in their view, unlike the Policy, those

17 various state statutes “did not involve . . . criminal human

18 smuggling . . . per se[;]” nor did they prohibit human smuggling

19 “for profit or commercial purposes[]” as does A.R.S.§ 13-

20 2319(A). Defs.’ Reply (Doc. 132) at 3:17-19, ¶ C. These claimed

21 distinctions are, once again, unavailing. To be sure, none of

22 those state statutes explicitly mention “human smuggling,” or

23 even “smuggling[,]” but each criminalizes transporting

24 unauthorized or illegal aliens. The court is thus hard pressed

25 to see how those statutes could be read to exclude smuggling,

26 which necessarily has a transport or movement component.

27 Furthermore, pursuant to the Policy, an unlawfully present alien

28 who is being transported is subject to arrest and prosecution.

- 35 -

1 That proscribed conduct fits within the INA’s “comprehensive

2 framework to penalize the transportation, concealment, and

3 inducement of unlawfully present aliens[]” as defined in GLAHR,

4 691 F.3d at 1263 (emphasis added).

5

The defendants fare no better with their argument that it

6 was the breadth of the state statutes in GLAHR and its progeny

7 which led to the conclusion that the federal government had

8 fully occupied the field of alien transportation and movement

9 within the United States. The defendants’ have it backwards.

10 When the issue is field preemption, the focus is on the breadth

11 of the federal statutes purporting to occupy a given field, not

12 upon the breadth of the challenged state statute. See GLAHR,

13 691 at 1264 (“Based on the breadth of federal regulation,” the

14 Arizona Court held that the federal government occupied the

15 field of alien registration.) Consistent with that view,

16 neither the Eleventh Circuit in GLAHR and Alabama, nor the

17 Arizona District Court in Valle del Sol, considered the breadth

18 of the challenged statutes as a basis for finding field

19 preemption.

20

Equally unavailing is the defendants’ contention that the

21 Policy is not field preempted because it is “completely

22 harmonious with the federal law[.]” Defs.’ Resp. (Doc. 128) at

23 7:18 (emphasis added). Unlawful presence, alone, is not a

24 federal crime, as more fully discussed next in connection with

25 conflict preemption. By making it a state felony for

26 unlawfully present aliens or non-smuggling migrants to transport

27 themselves and no one else, however, the Policy is criminalizing

28 mere unlawful presence. It thus strains credulity to insist,

- 36 -

1 as do the defendants, that the Policy is “completely harmonious

2 with federal law.” See id. Even assuming arguendo that the

3 Policy could somehow be deemed “parallel to federal

4 standards[,]” as in Arizona, 132 S.Ct., at 2502, such an

5 argument “ignore[s] the basic premise of field preemption ---

6 that States may not enter, in any respect, an area that the

7 Federal Government has reserved for itself[,]” such as the

8 transportation and movement within the United States of

9 unlawfully present aliens. See id. (emphasis added).

10

Moving beyond this primarily textual analysis of § 1324 to

11 its history reveals that Congress’ purpose was one of

12 “continuing efforts to strengthen [that] federal anti-smuggling

13 law by broadening the scope of proscribed conduct.” See U.S.

14 v. Sanchez-Vargas, 878 F.2d 1163, 1169 (9th Cir. 1989). Tracing

15 the evolution of that statute and its predecessors, the Ninth

16 Circuit found that “[f]rom its genesis as a statute prohibiting

17 only the bringing in of aliens, § 1324(a)(1) now presents a

18 single comprehensive ‘definition’ of the federal crime of alien

19 smuggling -- one which tracks smuggling and related activities

20 from their earliest manifestations (inducing illegal entry and

21 bringing in aliens) to continued operation and presence within

22 the United States (transporting and harboring or concealing

23 aliens).” Id. This history reinforces the view that, through

24 the INA, Congress has fully occupied the field of transporting,

25 moving, concealing, harboring, etc. of unlawfully present

26 aliens. Moreover, because this field necessarily encompasses

27 the conduct which the Policy proscribes, i.e., making it a state

28 felony for unlawfully present aliens or non-smuggling migrants

- 37 -

1 to conspire to transport themselves, it, too, is field preempted

2 by the INA. In sum, none of the defendants’ arguments persuade

3 this court to depart from the Eleventh Circuit’s reasoning and

4 conclusion in GLAHR, 691 F.3d 1250, particularly in light of

5 section 1324's history.

6

Having found that the Policy is field preempted by the

7 INA’s comprehensive framework to penalize the transportation,

8 concealment, and inducement of unlawfully present aliens, there

9 is no need to consider the second prong of the plaintiffs’ field

10 preemption argument, that is, that the Policy impermissibly

11 “circumvents Congress’[] framework for federal-local cooperation

12 in regulating immigration.” Pls.’ SJM (Doc. 121) at 11:16-17

13 (emphasis omitted). Accordingly, the court grants summary

14 judgment as to plaintiffs on the issue of field preemption, and

15 denies the defendants’ summary judgment motion in that regard.

16

Resolution of the field preemption issue in plaintiffs’

17 favor is dispositive of their preemption claim. Nevertheless,

18 the court will also address, as did the parties, the issue of

19 conflict preemption. The court will do so for three reasons.

20 First, the plaintiffs’ conflict preemption argument is equally

21 if not more compelling than its field preemption argument.

22 Second, proceeding in this way recognizes that field and

23 conflict preemption are not “rigidly distinct.” See Crosby, 530

24 U.S., at 372 n. 2 (internal quotation marks and citation

25 omitted). Finally, even if Congress had not occupied the field

26 in this case, because “state law is naturally preempted to the

27 extent of any conflict with a federal statute[,]” the prudent

28 course is to consider the possibility of conflict preemption

- 38 -

1 here as well. See id. at 372 (footnote and citations omitted).

2

2. Conflict Preemption

3

Keeping in mind that an “[i]mplied preemption analysis does

4 not justify a freewheeling judicial inquiry into whether a state

5 statute is in tension with federal objectives[,]” the court will

6 next consider whether the Policy conflicts with federal law.

7 See Chamber of Commerce of U.S. v. Whiting, 563 U.S. ––––, 131

8 S.Ct. 1968, 1985, 179 L.Ed.2d 1031 (2011) (internal quotation

9 marks and citation omitted). Distilling the parties’ conflict

10 preemption arguments to their essence, there are two core

11 issues: (1) whether the Policy actually conflicts with federal

12 law; and (2) whether the Policy “‘stands as an obstacle to the

13 accomplishment and execution of the full purposes and objectives

14 of Congress[.]’” See Arizona, 132 S.Ct., at 2501 (quoting

15 Hines, 312 U.S., at 67, 61 S.Ct. 399). The Policy does both.

16

a. Actual Conflict

17

Contending that the Policy is not conflict preempted, the

18 defendants again claim that it is “harmonious” with federal law.

19 See Defs.’ SJM (Doc. 119) at 11:5. The defendants are

20 overlooking a critical aspect of the Policy, however. The Policy

21 effectively criminalizes conduct which federal law does not.

22 More specifically, by deeming it a felony for unlawfully present

23 aliens to conspire to transport themselves, the Policy is

24 “criminalizing unlawful presence, a stance plainly at odds with 25 federal law.”16 See South Carolina, 720 F.3d at 530. Indeed,

26
16 The court agrees with the general proposition that, standing
27 alone, A.R.S. § 13-2319 does not “criminalize[] unlawful presence.” See
Melendres v. Arpaio, 2013 WL 2997173, at *76 (D.Ariz. May 24, 2013).
28 However, the Policy, which is based upon Arizona’s human smuggling statute

- 39 -

1 the Ninth Circuit has “long made clear that, unlike illegal

2 entry, mere unauthorized presence in the United States is not a 3 crime.” Melendres v. Arpaio, 695 F.3d 990, 1000 (9th Cir. 2012)

4 (citing, inter alia, Martinez–Medina v. Holder, 673 F.3d 1029, 5 1036 (9th Cir. 2011) (“Nor is there any other federal criminal

6 statute making unlawful presence in the United States, alone, a

7 federal crime, although an alien’s willful failure to register

8 his presence in the United States when required to do so is a

9 crime, and other criminal statutes may be applicable in a

10 particular circumstance.” (citation omitted)). Moreover, in

11 Arizona, “[t]he Supreme Court recently affirmed that, ‘[a]s a

12 general rule, it is not a crime for a removable alien to remain

13 present in the United States.’” Id. (quoting Arizona, 132 S.Ct.,

14 at 2505). Thus, it defies logic to suggest, as the defendants

15 do, that the Policy, which contravenes federal law by

16 criminalizing conduct which Congress has chosen not to, is

17 harmonious with federal law.

18

There is another way in which the Policy conflicts with

19 federal law. Among other activities, Alabama criminalized “an

20 alien’s conspiracy to be transported[.]” Alabama, 691 F.3d at

21 1288 (internal quotation marks and citation omitted). That

22 statute “appear[ed]” to the Fourth Circuit “to prohibit an

23 unlawfully present alien from even agreeing to be a passenger in

24 a vehicle.” Id. The Court held that that statute could not

25 “co-exist” with the federal smuggling statute, “as unlawfully

26 present aliens who are transported ‘are not criminally

27
and its conspiracy statute, does criminalize unlawful presence, as fully
28 discussed above.

- 40 -

1 responsible for smuggling under 8 U.S.C. § 1324[.]’” Id.

2 (quoting United States v. Hernandez-Rodriguez, 975 F.2d 622, 626

3 (9th Cir. 1992)). Because the Policy at issue herein likewise

4 “appears to prohibit an unlawfully present alien even from

5 agreeing to be a passenger in a vehicle[,]” the court finds that

6 it, too, cannot “co-exist with § 1324(a).” See id.

7

The Policy and federal law conflict in another way, as the

8 plaintiffs point out. The federal crime of alien smuggling

9 includes transporting or moving an illegal alien within the

10 United States. 8 U.S.C. § 1324(a)(1)(A)(ii). That offense

11 requires that “the smuggling be ‘in furtherance of such

12 violation of law,’ meaning that the defendants moved the alien

13 ‘in order to help him or her to remain in the United States

14 illegally.’” United States v. Aguilar-Reyes, 2013 WL 3829489, at

15 *2 (9th Cir. July 28, 2013) (quoting Ninth Circuit Model Criminal

16 Jury Instructions § 9.2 (2010)). In contrast, Arizona’s

17 smuggling statute requires that the person transporting or

18 moving “knows or has reason to know” that the transported

19 person is an alien, and that the smuggling be for “profit or

20 commercial purpose.” A.R.S. §§ 13-2319(F)(3) and (A). Thus,

21 neither the § 13-2319 nor the Policy include the “in

22 furtherance” element of the federal statute. As a result, the

23 Policy “penalize[s] persons whom the narrower federal statute

24 does not.” Pls.’ SJM (Doc. 121) at 17:7-10.

25

Not only does the Policy substantively conflict with federal

26 law, but it also conflicts from an operational standpoint.

27 Indeed, despite the defendants’ insistence to the contrary,

28 there is record proof of an actual conflict. The defendants

- 41 -

1 admit that the MCSO has “arrested at least 1,800 non-smugglers

2 for conspiring to violate § 13-2319[.] Pls.’ SOF (Doc. 121-1) at

3 3:27-28, ¶ 3 (citation omitted); Defs.’ Resp. SOF (Doc. 129) at

4 3:15, ¶ 3. The defendants further admit that the MCAO has

5 “prosecuted 1,357 non-smugglers for conspiracy to violate § 13-

6 2319.” Id. at 4:5-6, ¶ 4 (citation omitted); Defs.’ Resp. SOF

7 (Doc. 129) at 3:16, ¶ 4. The foregoing belies the defendants’

8 blanket assertion that plaintiffs have not offered any evidence

9 of an actual conflict between the Policy and federal immigration

10 law. See Defs.’ SJM (Doc. 119) at 10:23-25 (“[T]here is no

11 evidence from the Policy’s nearly seven years of history that

12 there has been any conflict between federal immigration law,

13 . . . , and the Policy.”) What is more, because the Policy

14 “criminalizes actions that Congress has, as a policy choice,

15 decided are a civil matter[,]” it is hard to imagine a more

16 blatant conflict than that. See South Carolina, 720 F.3d at

17 530. Given these various conflicts, the court gives no

18 credence to the defendants’ argument that there is no “clear

19 proof of conflicts between federal law” and the Policy. See

20 Defs.’ SJM (Doc. 119) at 10:26-27.

21

b. Obstacle Preemption

22

Turning to obstacle preemption, the Supreme Court has

23 instructed that “[w]hat is a sufficient obstacle is a matter of

24 judgment, to be informed by examining the federal statute as a

25 whole and identifying its purpose and intended effects[.]”

26 Crosby, 530 U.S., at 373. It matters not “whether that obstacle

27 goes by the name of conflicting; contrary to; . . . repugnance;

28 difference; irreconcilability; inconsistency; violation;

- 42 -

1 curtailment; . . . interference, or the like.” Geier v.

2 American Honda Motor Co., Inc., 529 U.S. 861, 873, 120 S.Ct.

3 1918, 146 L.Ed.2d 914 (2000) (internal quotation marks and

4 citations omitted).

5

Viewed from this perspective, the court likewise is

6 persuaded that the Policy “presents an obstacle to the

7 execution of the federal statutory scheme and challenges federal

8 supremacy in the realm of immigration.” See GLAHR, 691 F.3d at

9 1265 (footnote omitted). “[M]ere unauthorized presence is not

10 a criminal matter.” Melendres, 695 F.3d at 1002. By the same

11 token though, unauthorized presence is a civil violation that

12 can lead to deportation under federal law. See South Carolina,

13 720 F.3d at 530 (citing 8 U.S.C. § 1227) (“Under federal law,

14 unlawfully present aliens are subject to civil removal

15 proceedings.”); see also Gonzales v. City of Peoria, 722 F.2d

16 468, 476–477 (9th Cir. 1983) (explaining that illegal presence is

17 “only a civil violation”), overruled on other grounds by

18 Hodgers–Durgin, 199 F.3d 1037).

19

Recognizing that important distinction, the Fourth Circuit

20 held that the district court correctly enjoined a South Carolina

21 statute making it “a state felony for an unlawfully present

22 person to allow himself or herself to be ‘transported or moved’

23 within the state or to be harbored or sheltered to avoid

24 detection.” Id. at 522 (footnote omitted). Borrowing heavily

25 from Arizona, the Court explained:

26

‘A principal feature of the removal system

is the broad discretion exercised by

27

immigration officials.’ Arizona, 132 S.Ct.

at 2499. This discretion is necessary

28

because it ‘involves policy choices that bear

- 43 -

1

on this Nation’s international relations.’

Id. The State, by criminalizing what Congress

2

has deemed a civil offense and entrusted to

the discretion of the executive branch, is

3

‘pursu[ing] policies that undermine federal law.’

Id. at 2510.

4

5 Id. at 530. Based upon that rationale, the Fourth Circuit held

6 that certain sections of South Carolina’s immigration law were

7 “conflict preempted because they stand as an obstacle to the

8 execution of the federal removal system and interfere with the

9 discretion entrusted to federal immigration officials.” Id.

10 Simply put, the Fourth Circuit held that federal immigration

11 law preempted certain state statutes “because they criminalize

12 actions that Congress has, as a policy choice, decided are a

13 civil matter.” Id. The South Carolina Court’s reasoning

14 applies with equal force here, where the Policy also

15 criminalizes conduct, an alien’s unlawful presence, that

16 Congress has determined is a civil violation.

17

Put differently, the Policy “creates a new crime

18 unparalleled in the federal scheme.” See GLAHR, 691 F.3d at

19 1266. And, by making it a felony for unlawfully present

20 aliens, or non-smuggling migrants, to conspire to transport

21 themselves, much like the statutes at issue in GLAHR and

22 Alabama, the Policy is “an impermissible ‘complement’ to the INA

23 that is inconsistent with Congress’[] objective of creating a

24 comprehensive scheme governing the movement of aliens within the

25 United States.” See GLAHR, 691 F.3d at 1266 (quoting Hines, 312

26 U.S., at 66-67, 61 S.Ct., at 404).

27

Moreover, as in Alabama, the Policy “undermines the intent

28 of Congress to confer discretion on the Executive Branch in

- 44 -

1 matters concerning immigration.” See Alabama, 691 F.3d at 1287.

2 Congress granted local law enforcement officials limited 3 authority under the federal smuggling statute. They may arrest

4 for such crimes, but not prosecute because section 1324 crimes

5 are subject to prosecution in federal court. See 8 U.S.C. 6 § 1329. Thus “[b]y confining the prosecution of federal

7 immigration crimes to federal court, Congress limited the power

8 to pursue those cases to the appropriate United States 9 Attorney.” See GLAHR, 691 F.3d at 1265 (citations omitted).

10 The Policy, which makes criminal, what Congress has deemed to be

11 a civil violation, is “not conditioned on respect for the 12 federal concerns or the priorities that Congress has explicitly

13 granted executive agencies the authority to establish.” See id.

14 (citation omitted).17

15

In a similar vein, local arrest, detainment and prosecution

16 of unlawfully present aliens, or non-smuggling migrants, for

17 conspiring to transport themselves under the Policy 18 “unconstrained by federal law threaten[s] the uniform

19 application of the INA.” See GLAHR, 691 F.3d at 1266. That is

20 because, as the Eleventh Circuit soundly reasoned:

21

Each time a state enacts its own parallel

22
17 Maintaining that the Policy does not create an obstacle to
23 compliance with federal law, the defendants assert that “states may
prosecute an act which constitutes both a federal and state offense under
24 the state’s police power without impinging on federal jurisdiction.”
Defs.’ SJM (Doc. 119) at 11:10-11 (citation omitted) (emphasis added). Of
25 course, in making this assertion, defendants wholly disregard that the
“state offense” which the Policy proscribes is not a federal offense.
26 Thus, the defendants cannot avoid a finding of conflict preemption by
invoking the state’s police power. See Charleston & W. Carolina Ry. Co. v.
27 Varnville Furniture Co., 237 U.S. 597, 604, 35 S.Ct. 715, 717, 59 L.Ed.
1137 (1915) (“The legislation is not saved by calling it an exercise of
28 the police power[.]”)

- 45 -

1

to the INA, the federal government loses

‘control over enforcement’ of the INA, thereby

2

‘further detract[ing] from the integrated

scheme of regulation created by Congress.’

3

Id. (quoting Wis. Dep't of Indus., Labor & Human Relations v.

4

Gould, Inc., 475 U.S. 282, 288–89, 106 S.Ct. 1057, 1062, 89

5

L.Ed.2d 223 (1986) (quotation marks omitted)) (other citations

6

omitted). “Given the federal primacy in the field of enforcing

7

prohibitions on the transportation” and movement, among other

8

activities, of “unlawfully present aliens,” the court concurs

9

with the Eleventh Circuit that “the prospect of fifty individual

10

attempts to regulate immigration-related matters cautions

11

against permitting states to intrude into this area of dominant

12

federal concern.” Id. These various conflicts between the

13

Policy and federal law strengthen the court’s earlier finding of

14

field preemption. See Arizona, 132 S.Ct., at 2503 (finding that

15

“specific conflicts . . . underscore[d] the reason for field

16

preemption[]”).

17

Given that the Policy actually conflicts with federal

18

immigration law, and that it “stands as an obstacle to the

19

accomplishment and execution of the full purposes and objectives

20

of Congress[,]” Arizona, 132 S.Ct., at 2501 (internal quotation

21

marks and citation omitted), the plaintiffs have met the “high

22

threshold” necessary to support a finding of conflict

23

preemption. See Whiting, 131 S.Ct., at 1985 (internal quotation

24

marks and citation omitted). To conclude on the issue of

25

conflict preemption, the court grants summary judgment in favor

26

of the plaintiffs, and denies the defendants’ summary judgment

27

in this regard.

28

- 46 -

1

C. Dismissal of Remaining Claims

2

The plaintiffs are “reced[ing]” or backing away from “their

3 remaining claims[,]” that is, their claims for unlawful search

4 and seizure, denial of due process and a pendent state claim for

5 violations of A.R.S. §§ 13-2319 and 13-1003. Pls.’ Resp. (Doc.

6 126) at 16:27-28, n. 5. The plaintiffs expressly seek voluntary

7 dismissal of these claims pursuant to Fed.R.Civ.P. 41(a)(2).

8 However, they do not specify whether they are seeking dismissal

9 with or without prejudice, “implicitly accepting either

10 determination by th[is] district court.” See Hargis v. Foster,

11 312 F.3d 404, 412 (9th Cir. 2002).

12

If an order granting voluntary dismissal in accordance with

13 Rule 41(2) is silent, that Rule presumes dismissal without

14 prejudice. Fed.R.Civ.P. 41(2) (“Unless the order states

15 otherwise, a dismissal under this paragraph (2) is without

16 prejudice.”) That said, “‘[t]he ‘broad grant of discretion’ that

17 Federal Rule of Civil Procedure 41(a)(2) vests in the district

18 court to dismiss ‘on terms that the court considers proper’

19 ‘does not contain a preference for one kind of dismissal or

20 another.’” Real Estate Disposition Corp. v. National Home

21 Auction Corp., 2009 WL 764529, at *1 (C.D.Cal. 2009) (quoting

22 Hargis, 312 F.3d at 412; and Fed.R.Civ.P. 41(a)(2)). “As such,

23 th[is] district court has discretion as to whether to grant a

24 voluntary dismissal pursuant to Federal Rule of Civil Procedure

25 41(a)(2) with or without prejudice.” See id. (citing Hargis,

26 312 F.3d at 412).

27

The defendants do not object to the dismissal of the three

28 claims just identified, but from their standpoint that dismissal

- 47 -

1 should be “with prejudice.” Defs.’ Reply (Doc. 132) at 1:27

2 (emphasis in original). As justification, the defendants point

3 out that the “[p]laintiffs have had sufficient time to develop

4 an evidentiary record to present genuine issues of material fact

5 precluding summary judgment and to substantively respond to”

6 defendants’ summary judgment motion on the three non-preemption

7 claims. Id. at 1:27-2:1.

8

The defendants’ position is well-taken. In addition, the

9 defendants should not have the cloud of future litigation over

10 the other claims when, apparently, the plaintiffs made a

11 deliberate choice to pursue only the preemption claim.

12 Moreover, the plaintiffs have not provided any reason for

13 granting their request without prejudice. Under these

14 circumstances, the court, in the exercise of its discretion,

15 dismisses with prejudice the FAC’s second, third and fourth

16 claims.

17 II. Class Certification

18

The plaintiffs are seeking to certify two classes. The

19 first they define as “[a]ll individuals who are - . . stopped,

20 detained, arrested, incarcerated, prosecuted, or penalized for

21 conspiring to transport themselves, and themselves only, in

22 violation of Ariz. Rev. Stat. § 13-2319[] [“the individual

23 class”][.]” Class Certification Motion (Doc. 122) at 5:26-28

24 (emphasis added). Alternatively, the plaintiffs are seeking to

25 certify a class of “[a]ll individuals who . . . pay taxes to

26 Maricopa County and object to the use of county tax revenues to

27 stop, detain, arrest, incarcerate, prosecute, or penalize

28 individuals for conspiring to transport themselves, and

- 48 -

1 themselves only, in violation of Ariz. Rev. Stat. § 13-2319

2 [“the taxpayer class”].” Id. at 5:26 and 6:2-3. The defendants

3 oppose certification of both.

4

Rule 23 “give[s] the district court broad discretion over

5 certification of class actions[.]” Stearns v. Ticketmaster

6 Corp., 655 F.3d 1013, 1019 (9th Cir. 2011). However, class

7 certification remains “‘an exception to the usual rule that

8 litigation is conducted by and on behalf of the individual named

9 parties only.’” Comcast Corp. v. Behrend, 569 U.S. ––––, 133

10 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013) (quoting Califano v.

11 Yamasaki, 442 U.S. 682, 700–701, 99 S.Ct. 2545, 61 L.Ed.2d 176

12 (1979)). “[T]o justify a departure from that rule, a class

13 representative must be part of the class and possess the same

14 interest and suffer the same injury as the class members.”

15 Wal–Mart Stores, Inc. v. Dukes, 564 U.S. ----, 131 S.Ct. 2541,

16 2550, 180 L.Ed.2d 374 (2011)(internal quotation marks and

17 citations omitted) (emphasis added).

18

Before delving into the parties’ contentions as to each of

19 the Rule 23 factors, there is a preliminary, dispositive issue

20 with respect to the first proposed class. Essentially, the

21 defendants contend that because none of the named plaintiffs

22 have been stopped, detained, arrested, prosecuted, etc. in

23 accordance with the Policy, they are not members of the proposed

24 first class, and so cannot serve as class representatives

25 thereof. The court agrees. See Juvera v. Salcido, 2013 WL

26 1367354, at *3 (D.Ariz. April 4, 2013) (citing Bailey v.

27 Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 7 L.Ed.2d 512

28 (1962)) (“[T]he named representative must be a member of the

- 49 -

1 class.”)

2

Although the defendants did not mention it, there is another

3 compelling reason for not certifying the first proposed class.

4 That is because, regardless of the class definition, the

5 requested relief here is identical. Basically, both classes are

6 seeking: (1) a declaration that federal law preempts the Policy;

7 and (2) an injunction permanently enjoining the defendants from

8 taking any further action under the Policy. In light of the

9 foregoing, if the court finds that class certification is proper

10 as to the proposed alternative class – the taxpayers – the

11 plaintiffs will recover complete relief, obviating the need for

12 certification of the first proposed class. The court will,

13 thus, proceed to the issue of whether the plaintiffs have met

14 their burden of “‘affirmatively demonstrat[ing] . . .

15 compliance’ with Rule 23.” See Comcast, 133 S.Ct., at 1432

16 (quoting Wal-Mart, 131 S.Ct., at 2551-2552).

17

“A party seeking class certification must satisfy the

18 requirements of Federal Rule of Civil Procedure 23(a) and the

19 requirements of at least one of the categories under Rule

20 23(b).” Wang v. Chinese Daily News, Inc., 2013 WL 4712728, at

21 *2 (Sept. 3, 2013). In the present case, the plaintiffs are

22 seeking class certification pursuant to Rule 23(b)(2) premised

23 on the defendants having “acted or refused to act on grounds

24 that apply generally to the class, so that final injunctive

25 relief or corresponding declaratory relief is appropriate

26 requesting the class as a whole[.]” Fed.R.Civ.P. 23(b)(2).

27

A. Rule 23(a)

28

“‘Rule 23(a) ensures that the named plaintiffs are

- 50 -

1 appropriate representatives of the class whose claims they wish

2 to litigate.’” Wang, 2013 WL 4712728, at *2 (quoting Wal–Mart

3 Stores, Inc. v. Dukes, 564 U.S. ----, 131 S.Ct. 2541, 2550, 180

4 L.Ed.2d 374 (2011)). Rule 23(a) provides:

5

One or more members of a class may sue or

be sued as representative parties on behalf

6

of all members only if:

7

(1) the class is so numerous that joinder

of all members is impracticable;

8

(2) there are questions of law or fact

9

common to the class;

10

(3) the claims or defenses of the

representative parties are typical of

11

the claims or defenses of the class; and

12

(4) the representative parties will

fairly and adequately protect the interests

13

of the class.

14 Fed.R.Civ.P. 23(a). Succinctly put, that Rule “requires a party

15 seeking class certification to satisfy four requirements:

16 numerosity, commonality, typicality, and adequacy of

17 representation.” Wang, 2013 WL 4712728, at *2 (citation

18 omitted).

19

The defendants readily agree, and the court so finds, that

20 the first two Rule 23(a) elements –- numerosity and commonality

21 –– are satisfied in this case. See Defs.’ Resp. (Doc. 127)

22 2:24-25 (“Based on research and review of Plaintiffs’ Motion,

23 Defendants agree that this case satisfied the numerosity and

24 impracticability element required for a class action.”); and at

25 3:8-10 (“Based on the foregoing authority and review of

26 Plaintiffs’ Motion, Defendants agree that this case raises

27 issues of both law and fact that are common to the members of

28 the proposed class.”) The parties are at odds, however, as to

- 51 -

1 whether the plaintiffs can satisfy Rule 23(a)’s typicality and

2 adequacy requirements.

3

a. Typicality

4

The plaintiffs assert that because they have satisfied the

5 commonality requirement, they have also satisfied the typicality

6 requirement. The defendants counter by repeating their argument

7 that the named taxpayer plaintiffs lack standing. The

8 defendants thus imply that that purported lack of standing means

9 that the claims of these plaintiffs are not typical of the

10 taxpayer class. This is the only reason the defendants offer as

11 to why the plaintiffs have not shown typicality as to the

12 proposed taxpayer class. Of course, the court has already found

13 that the taxpayer plaintiffs Haglund and Lujan do have standing

14 - a finding which undermines this defense argument. What is

15 more, “[i]n a class action, standing is satisfied if at least

16 one named plaintiff meets the requirements.” Haro, 2013 WL

17 4734032, at *4 (internal quotation marks and citation omitted).

18 Here, as this court has found, two of the named plaintiffs have

19 standing. Thus, the defendants’ lack of standing argument

20 simply has no place in deciding whether to grant class

21 certification.

22

Typicality, like commonality, “serve[s] as [a] guidepost[]

23 for determining whether under the particular circumstances

24 maintenance of a class action is economical and whether the

25 named plaintiff’s claim and the class claims are so interrelated

26 that the interests of the class members will be fairly and

27 adequately protected in their absence.” Wal-Mart, 131 S.Ct., at

28 2551, n. 5 (quoting General Telephone Co. of Southwest v.

- 52 -

1 Falcon, 457 U.S. 147, 157, n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740

2 (1982)). “The test of typicality is whether other members have

3 the same or similar injury, whether the action is based on

4 conduct which is not unique to the named plaintiffs, and whether

5 other class members have been injured by the same course of

6 conduct.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984

7 (2011) (internal citation and quotation marks omitted).

8

That test is easily met in the present case. Plaintiffs

9 Haglund and Lujan and the putative taxpayer class members claim

10 the same injury and object to the same conduct. The taxpayer

11 plaintiffs, and the class which they are seeking to represent,

12 allege misuse of their Maricopa County taxes to fund all aspects

13 of the Policy. Further, this action is based on conduct which

14 is not unique to the named taxpayer plaintiffs, i.e.,

15 enforcement of the Policy, which federal law preempts. And,

16 obviously other taxpayer class members have been injured by the

17 use of their Maricopa County taxes to fund the Policy. The

18 court thus finds that plaintiffs have met the “permissive

19 standards” of typicality. See Hanlon v. Chrysler Corp., 150

20 F.3d 1011, 1026 (9th Cir. 1998).

21

b. Adequacy

22

Rule 23(a)(4) “satisf[ies] due process concerns [ ]” in

23 that “absent class members must be afforded adequate

24 representation before entry of a judgment which binds them.”

25 Hanlon, 150 F.3d at 1020 (citing Hansberry v. Lee, 311 U.S. 32,

26 42–43, 61 S.Ct. 115, 85 L.Ed. 22 (1940)). This requirement thus

27 “raises concerns about the competency of class counsel and

28 conflicts of interest.” Wal-Mart, 131 S.Ct., at 2551 n. 5

- 53 -

1 (citation and internal quotation marks omitted). Therefore,

2 “[a]dequate representation depends on, among other factors, an

3 absence of antagonism between representatives and absentees, and

4 a sharing of interest between representatives and absentees.”

5 Ellis, 657 F.3d at 985 (citation omitted). Consequently, “[t]o

6 determine whether named plaintiffs will adequately represent a

7 class, courts must resolve two questions: ‘(1) do the named

8 plaintiffs and their counsel have any conflicts of interest with

9 other class members and (2) will the named plaintiffs and their

10 counsel prosecute the action vigorously on behalf of the

11 class?’” Id. (quoting Hanlon, 150 F.3d at 1020).

12

In addition to the foregoing, Rule 23(g) articulates four

13 criteria that a court must consider in evaluating the adequacy

14 of proposed class counsel. Those mandatory criteria are:

15

(i) the work counsel has done in identifying

or investigating potential claims in the action;

16

(ii) counsel’s experience in handling class actions,

17

other complex litigation, and the types of claims

asserted in the action;

18

(iii) counsel’s knowledge of the applicable law; and

19

(iv) the resources that counsel will commit to

20

representing the class[.]

21 Fed.R.Civ.P. 23(g)(1)(A)(i)-(iv) (emphasis added). In addition,

22 the court “may consider any other matter pertinent to counsel’s

23 ability to fairly and adequately represent the interests of the

24 class[.]” Fed.R.Civ.P.23(g)(1)(B). “No single factor should

25 necessarily be determinative in a given case.” Fed.R.Civ.P.

26 23(g) Advisory Committee note.

27

Here, the parties’ adequacy of representation arguments are

28 lacking, but for different reasons. The defendants did not

- 54 -

1 address the critical issue of potential conflicts and vigorous

2 prosecution. Instead, in reliance upon their typicality

3 argument, the defendants simply declare that “the named

4 Plaintiffs cannot fairly and adequately protect the interests of

5 either one of the two alternative proposed classes.” Defs.’

6 Resp. (Doc. 127) at 5:4-5.

7

To be sure, the typicality requirement does “tend to merge

8 with the adequacy-of-representation requirement[.]” Wal-Mart,

9 131 S.Ct., at 2551 n. 5 (citation and internal quotation marks

10 omitted). In the present case, however, because the defendants’

11 typicality argument attacked only the taxpayer plaintiffs’

12 standing, it has no bearing on the adequacy of representation.

13 Given this context, the defendants’ reliance upon their

14 typicality argument is misplaced. Furthermore, the plaintiffs’

15 discussion of the conflict of interest and vigorous prosecution

16 issues is perfunctory, to say the least, as is their discussion

17 of the Rule 23(g).

18

Despite these shortcomings, the court concludes that the

19 plaintiffs have satisfied the adequacy of representation

20 requirement. Not only have the defendants failed to point to

21 any claimed conflicts of interest, but the court can perceive of

22 none. As should be abundantly clear by now, the interests of

23 the named plaintiffs and their counsel are nearly identical in

24 every way to those of the putative taxpayer class members.

25 Furthermore, during the nearly seven year course of this

26 litigation, the vigorous prosecution of this lawsuit by

27 plaintiffs’ counsel is evident from, among other things, the

28 extensive discovery, motion practice, and an appeal to the Ninth

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1 Circuit. The decision by plaintiffs’ counsel to pursue only one

2 of the four claims in the FAC demonstrates that they have

3 seriously engaged in identifying and investigating potential

4 claims as well. See Fed.R.Civ.P. 23(g)(1)(A)(i).

5

The other three Rule 23(g) factors weigh heavily in favor

6 of appointing Peter A. Schey and Carlos Holguín of the Center

7 for Human Rights and Constitutional Law Foundation (“the

8 Foundation”) as lead counsel for the plaintiffs. This non-

9 profit, public interest foundation routinely litigates on behalf

10 of immigrants and refugees raising constitutional and civil

11 rights issues. Attorney Schey is the President and Executive of

12 the Foundation, and has been from 1980 to the present.

13 Http:/centerforhumanrights.org/staff (last visited Sept. 15,

14 2013); see also Schey Decl’n (Doc. 21-1) at 8, ¶ 1. Attorney

15 Holguín has served as General Counsel with the Foundation since

16 1984. Id. The depth of their collective experience in handling

17 class actions and immigration issues can be discerned from a

18 representative sampling of lawsuits where they have successfully

19 litigated in this area. See, e.g., Immigration Assistance

20 Project of the Los Angeles Fed’n of Labor v. I.N.S., 306 F.3d

21 842 (9th Cir. 2002) (summary judgment granted in favor of an

22 immigrant class challenging provisions of the Immigration Reform

23 and Control Act of 1986, where attorney Schey served as co-lead

24 counsel); Catholic Social Services, Inc. v. I.N.S., 232 F.3d

25 1139 (9th Cir. 2000) (affirming grant of preliminary injunction

26 to alien class qualified to challenge advance parole policy);

27 and Perez-Olano v. Gonzalez, 248 F.R.D. 248 (C.D.Cal. 2008)

28 (certifying a nation-wide class and granting permanent

- 56 -

1 injunctive and declaratory relief where defendants’ application

2 of a specific consent requirement deprived immigrant migrants in

3 federal custody of the special immigration juvenile provisions

4 of the INA).

5

Through their extensive experience litigating immigration

6 issues, attorneys Schey and Holguín certainly are knowledgeable

7 in the applicable law. Finally, there is no reason to doubt

8 that they, and the Foundation in particular, have the necessary

9 resources to devote to representing the plaintiff class.

10 Therefore, the court finds that Peter Schey and Carlos Holguín

11 satisfy the Rule 23(g) criteria and can adequately represent the

12 plaintiff class certified herein.

13

B. Rule 23(b)(2)

14

Here, where the plaintiffs are seeking an injunction and

15 declaratory relief which would “provide relief to each member of

16 the class[,]” and no compensatory damages, they are properly 17 invoking Rule 23(b)(2).18 See Wal-Mart, 131 S.Ct., at 2557.

18 As the Wal-Mart Court instructed, “[t]he key to the (b)(2) class

19 is the indivisible nature of the injunctive or declaratory

20 remedy warranted — the notion that the conduct is such that it

21 can be enjoined or declared unlawful only as to all of the class

22 members or as to none of them.” Id. (internal quotation marks

23 and citation omitted). The equitable relief which the

24 plaintiffs herein are seeking fits that description. Thus,

25 because the plaintiffs have met their burden of satisfying each

26
18 Because their response does not even mention this aspect of
27 plaintiffs’ class certification motion, the court assumes that the
defendants concede that the plaintiffs are properly relying upon Rule
28 23(b)(2).

- 57 -

1 of the Rule 23(a) requirements, and that of Rule 23(b)(2), the

2 court grants their motion for class certification as to the

3 taxpayer plaintiffs.

4

Conclusion

5

In light of the foregoing, the court hereby ORDERS that:

6

(1) Defendants’ Motion for Summary Judgment (Doc. 119) is

7 DENIED;

8

(2) Plaintiffs’ Motion for Summary Judgment (Doc. 121) is

9 GRANTED as to their first claim (“Federal Preemption”);

10

(3) Plaintiffs’ second claim for relief (“Unlawful Search

11 and Seizure; violation of 42 U.S.C. § 1983"), third claim for

12 relief (“Denial of Due Process; violation of 42 U.S.C. § 1983");

13 and fourth claim for relief (“Pendent State Claim: Violation of

14 Ariz. Rev. Stat. §§ 13-2319 and 13-1003") are DISMISSED WITH

15 PREJUDICE pursuant to Fed.R.Civ.P. 41(a)(2);

16

(4) Plaintiffs’ Motion for Class Certification pursuant to

17 Fed.R.Civ. 23(b)(2) (Doc. 122) is GRANTED in part and DENIED in

18 part. The court certifies a class defined as: “All individuals

19 who pay taxes to Maricopa County and object to the use of county

20 tax revenues to stop, detain, arrest, incarcerate, prosecute, or

21 penalize individuals for conspiring to transport themselves, and

22 themselves only, in violation of Ariz. Rev. Stat. § 13-2319.”

23

IT IS FURTHER ORDERED that:

24

(5) Carlos Holguín and Peter A. Schey of the Center for

25 Human Rights and Constitutional Law, 256 S. Occidental Blvd.,

26 Los Angeles, CA 90057; telephone: (213) 388-8693; facsimile:

27 (213) 386-9484; e-mail: crholguin@centerforhumanrights.org, and

28 pschey@centerforhumanrights.org, are appointed as lead class

- 58 -

1 counsel for the class certified herein;

2

(6) Plaintiffs are entitled to a declaration that federal

3 law preempts and renders invalid the Maricopa County Migrant

4 Policy;

5

(7) Defendants Maricopa County Sheriff Joseph M. Arpaio and

6 Maricopa County Attorney William G. Montgomery, and their

7 agents, employees, successors in office, and all other persons

8 who are in active concert or participation with the Maricopa

9 County Sheriff’s Office and the Maricopa County Attorney’s

10 Office, are permanently enjoined from further implementing the

11 Maricopa Migrant Conspiracy Policy including detaining,

12 arresting, and prosecuting persons for conspiring to transport

13 themselves, and no one else, in violation of Ariz. Rev. Stat.

14 § 13-2319;

15

(8) Defendants shall promptly serve Class Counsel with

16 copies of any instructions or guidelines they issue to implement

17 this Order;

18

(9) Prior to bringing any motion or application to clarify,

19 modify or enforce this injunction, the parties, through counsel,

20 shall meet and confer in good faith to resolve their differences;

21 and

22

(10) The court shall retain continuing jurisdiction to

23 enforce the terms of this Order and Permanent Injunction.

24

Dated this 27th day of September, 2013.

25

26

27 28

- 59 -

1 Copies to all counsel of record 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
- 60 -

 
 We Are America/Somos America Coalition of Arizona v...., Not Reported in... 2007 WL 2775134

2007 WL 2775134 Only the Westlaw citation is currently available.
United States District Court, D. Arizona.
WE ARE AMERICA/SOMOS AMERICA COALITION OF ARIZONA, et al., Plaintiffs,
v. MARICOPA COUNTY BOARD OF SUPERVISORS, et al., Defendants.
No. CIV 06–2816 PHX RCB. |
Sept. 21, 2007.
Attorneys and Law Firms
Antonio D. Bustamante, Law Office of Antonio D. Bustamante PC, Phoenix, AZ, Carlos Holguin, Peter Anthony Schey, Center for Human Rights & Constitutional Law, Los Angeles, CA, Danilo Ballecer, Ballecer & Segal, LLP, H. Michael Clyde, Perkins, Coie, Brown & Bain PA, Phoenix, AZ, Ray Velarde, Law Office of Ray Velarde, El Paso, TX, for Plaintiffs.
Dennis Ira Wilenchik, Wilenchik & Bartness PC, Timothy James Casey, Schmitt, Schneck, Smyth & Herrod PC, Phoenix, AZ, for Defendants.
ORDER
ROBERT C. BLOOMFIELD, Senior United States District Judge.
*1 On November 21, 2006, Plaintiffs filed this action against Maricopa County Attorney Andrew Thomas, Maricopa County Sheriff Joseph Arpaio, the Maricopa County Board of Supervisors and its individual members, challenging the County Attorney and Sheriff’s policy of prosecuting individual undocumented immigrants for conspiring to smuggle themselves in violation of Ariz.Rev.Stat. § 13–2319. Compl. (doc. # 1). Plaintiffs include five individual taxpayers who challenge Defendants’ policy as an illegal diversion of taxpayer funds; six Mexican nationals who have been arrested, detained, and charged for conspiracy to violate
1

Ariz.Rev.Stat. § 13–2319 pursuant to Defendants’ policy; and four different community-based organizations. Id. ¶¶ 5–15.
Currently before the Court are Plaintiffs’ motion for class certification (doc. # 20) and Defendants’ motion to dismiss (doc. # 32). The motions have been fully briefed, and the Court finds the matter suitable for decision without oral argument. Having carefully considered the arguments raised, the Court now rules.
I. BACKGROUND In review of a motion to dismiss, all allegations of material fact in the complaint are accepted as true, with all reasonable inferences drawn in favor of the nonmoving party. Keams v. Tempe Technical Inst., Inc., 39 F.3d 222, 224 (9th Cir.1994); Everest & Jennings, Inc. v. Am. Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir.1994). The relevant facts for purposes of Defendants’ motion to dismiss are as follows:
Under Arizona law enacted in 2005 it is a felony to engage in human trafficking that involves the smuggling of aliens. The relevant statute provides in pertinent part as follows:
A. It is unlawful for a person to intentionally engage in the smuggling of human beings for profit or commercial purpose.
...
...
D. For purposes of this section:
...
2. “Smuggling of human beings” means the transportation or procurement of transportation by a person or an entity that knows or has reason to know that the person or persons transported or to be transported are not United States citizens, permanent resident aliens or persons otherwise lawfully in this state.
Ariz.Rev.Stat. § 13–2319.1 Defendant Thomas has issued a statement declaring that, in his view, section 13–2319 applies not only to the conduct of actual smugglers and human traffickers accepting payment for transport, but

We Are America/Somos America Coalition of Arizona v...., Not Reported in... 2007 WL 2775134

also to individual undocumented immigrants agreeing to pay for transport or on whose behalf others have agreed to pay for transport. Compl. (doc. # 1) ¶ 40. Defendant Thomas has declared a policy that, as the Maricopa County Attorney, he will prosecute individual undocumented immigrants for conspiring to violate section 13–2319 if they have been transported for gain by a third party. Id. This policy is the subject of Plaintiffs’ action for declaratory and injunctive relief. Id.
In Plaintiffs’ view, drawn from the legislative history and subsequent public remarks by lawmakers, section 13– 2319 was intended only to criminalize the exploitative conduct of actual smugglers, often referred to as “coyotes,” and was not intended to apply to individual undocumented immigrants paying for transport. See id. ¶¶ 42–43. Plaintiffs seek to enjoin the continued implementation of Defendants’ policy, and assert four different claims for relief: (1) Defendants’ policy is preempted by the Immigration and Naturalization Act, 8 U.S.C. §§ 1101, et seq. (the “Act”), (2) Defendants’ policy violates their Fourth Amendment rights to be free from unreasonable searches and seizures, (3) Defendants’ policy violates their Fourteenth Amendment right to due process of law, and (4) Defendants’ policy conflicts with Ariz.Rev.Stat. § 13–2319. Compl. (doc. # 1) ¶¶ 56–64.
II. STANDARD OF REVIEW *2 Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to seek dismissal of a claim if the claimant failed to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Under Rule 12(b)(6), “dismissal for failure to state a claim is improper unless ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ “ Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1332 (9th Cir.1987) (quoting Conley v. Gibson, 355 U.S. 41, 45–46 (1957)). Factual argument is inappropriate in a Rule 12(b)(6) motion, which tests only the legal sufficiency of the complaint. Thus, in undertaking its analysis, the Court must limit its “review to the contents of the complaint, accepting the material factual allegations as true and construing them in the light most favorable to the [non-movant].” Id.
III. DISCUSSION Defendants argue that this case should be dismissed on
2

the basis that Plaintiffs lack Article III standing, and, in the alternative, urge the Court to refrain from hearing this matter under the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971). Although the Younger abstention inquiry is prudential in nature, it is appropriately considered as a basis for decision prior to any determination regarding Article III standing. Ruhrgas Ag v. Marathon Oil Co., 526 U.S. 574, 585 (1999).
Born out of principles of federalism and comity, the Younger abstention doctrine is a jurisdictional issue requiring federal courts to abstain from exercising jurisdiction over certain actions when proceedings are pending in state court. See Gartrell Constr. Inc. v. Aubry, 940 F.2d 437, 441 (9th Cir.1991); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 100 n. 3 (1998). Younger abstention is appropriate when “(1) there are ongoing state judicial proceedings; (2) the proceedings implicate important state interests; and (3) the state proceedings provide the plaintiff with an adequate opportunity to raise federal claims.” Meredith v. Oregon, 321 F.3d 807, 816– 17 (9th Cir.2003) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)); accord Gartrell Constr. Inc., 940 F.2d at 441.
Plaintiffs argue that the Younger abstention doctrine is not appropriate in this case, because (1) they do not seek to enjoin preexisting state prosecutions, (2) the proceedings brought pursuant to Defendants’ policy do not further vital state interests, and (3) Plaintiffs do not have an adequate opportunity to raise their federal defenses in the state proceedings. Resp. (doc. # 38) at 9–15. Plaintiffs also claim that Younger abstention should not apply, because the prosecutions brought pursuant to Defendants’ policy are undertaken in bad faith. Id. at 15. The Court does not find any indication that the state’s prosecutions have been brought in bad faith or for purposes of harassment. Accordingly, the Court will focus the balance of its inquiry on the three elements required for Younger abstention.
A. Ongoing Judicial Proceedings *3 The critical question for purposes of Younger abstention is “whether the state proceedings were underway before initiation of the federal proceedings.” Kitchens v. Bowen, 825 F.2d 1337, 1341 (9th Cir.1987) (internal quotation and citation omitted). Although Plaintiffs now claim that the Court could fashion its relief in such a way that would not require enjoining any currently pending criminal cases, Defendants rightly point out that Plaintiffs made no such distinction in their

We Are America/Somos America Coalition of Arizona v...., Not Reported in... 2007 WL 2775134

complaint. See Resp. (doc. # 38) at 10–11; Reply (doc. # 42) at 6–8; see also Compl. (doc. # 1) ¶ 55 (“If the relief prayed for is not granted, plaintiffs ... will continue to be ... prosecuted pursuant to an unconstitutional and unlawful policy.”). Plaintiffs’ assertion that most of the putative class members were not subject to ongoing state proceedings at the start of this litigation is similarly unavailing. See Resp. (doc. # 38) at 10. It is evident from the complaint that at least six of the individual plaintiffs had been charged with violation of Ariz.Rev.Stat. § 13– 2319 prior to the initiation of this action. See Compl. (doc. # 1) ¶¶ 9–10. Moreover, the prospective class that Plaintiffs seek to have certified includes “[a]ll individuals stopped, detained, arrested, incarcerated, prosecuted, or penalized for conspiring to transport themselves, and themselves only, in violation of Ariz.Rev.Stat. § 13– 2319.” Id. ¶ 25 (emphasis added). As currently pled, the relief sought by Plaintiffs will by necessity interfere with prosecutions already underway at the time this action was filed.
B. Important State Interest Implicated There can be little question that a state has a vital interest in the enforcement of its criminal laws. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13 (1987). Nevertheless, Plaintiffs maintain that there are no important state interests served by Defendants’ manner of interpreting and enforcing section 13–2319, arguing that the policy of prosecuting individual migrants as conspirators under the statute is both contrary to the legislative intent of its sponsors and preempted by federal law in a manner that is readily apparent.
1. Ultra Vires Interpretation of State Law Plaintiffs maintain that Defendants’ policy of prosecuting migrants as conspirators under section 13–2319 constitutes an ultra vires interpretation and enforcement of the state’s alien smuggling law. See Resp. (doc. # 38) at 11–13. In support of this argument, Plaintiffs cite to legislative history suggesting that the bill’s sponsor intended for the law to provide an avenue for state prosecutions of actual smugglers as distinguished from the persons whom they transport. Id. at 11–12. Plaintiffs believe that their view is also vindicated by the fact that Defendants are apparently the only state law enforcement officers prosecuting migrants for conspiracy to smuggle themselves in violation of Ariz.Rev.Stat. § 13–2319.
3

*4 While these arguments would be appropriately received in adjudicating the merits of some of Plaintiffs’ claims, they do not demonstrate such an abuse of prosecutorial discretion that would impel the Court to conclude at this juncture that the state lacks an important interest in Defendants’ enforcement of its alien smuggling law. As Defendants point out, the actions of other state law enforcement officials may be attributable to any number of factors such as the availability of resources, and do not exclusively lend themselves to the inferences Plaintiffs would draw regarding the legality of Defendants’ policies. See Reply (doc. # 42) at 9 n. 3. Moreover, as the Ninth Circuit has observed, arguments such as those asserted by Plaintiffs could easily be raised “in any federal litigation in which a plaintiff seeks to enjoin allegedly unconstitutional state proceedings, and, if accepted, would render Younger a nullity.” See Worldwide Church of God, Inc. v. California, 623 F.2d 613, 616 (9th Cir.1980). Accordingly, the Court approaches Plaintiffs’ claim regarding Defendants’ allegedly ultra vires interpretation and enforcement of Ariz.Rev.Stat. § 13–2319 with the same measured skepticism, and finds it to be an insufficient basis to decline abstention.
2. Federal Preemption that is Readily Apparent Plaintiffs also argue that Defendants’ policy cannot serve an important state interest, because it “intrude[s] into an area reserved to the federal government by the United States Constitution .” Id. at 13. The Ninth Circuit has emphasized that no significant state interest is served, and therefore Younger abstention is unnecessary, where the state law at issue is preempted by federal law in a manner that is “readily apparent.” Woodfeathers, Inc. v. Washington County, 180 F.3d 1017, 1021 (9th Cir.1999); Gartrell Constr. Inc., 940 F.2d at 441. However, because questions of federal preemption frequently abound in cases where Younger abstention is sought, it is important for a court to refuse to abstain only when the preemptive force of the federal law at issue is readily discernable from the pleadings. See Fresh Int’l Corp. v. Agric. Labor Relations Bd., 805 F.2d 1353, 1361 (9th Cir.1986) (citation omitted).
Defendants believe that Plaintiffs’ “charge of preemption is attenuated at best,” and are quick to point out that neither the United States Department of Justice nor any federal agency has sought intervention. Reply (doc. # 42) at 9. Much like Plaintiffs’ effort to portray Defendants’ policies as being unlawful by comparison to the conduct

We Are America/Somos America Coalition of Arizona v...., Not Reported in... 2007 WL 2775134

of other state law enforcement officials, the Court does not see any significant inferences that may be drawn from the apparent inaction of the federal government to intervene in this case. The decision of any federal agency not to intervene in this case may be attributable to a lack of resources—just as Defendants have said in response to Plaintiffs’ argument regarding the conduct of other state law enforcement officials—or may simply reflect other political motivations that are not relevant here. But it does not bear upon the question of federal preemption that the Court must address in deciding whether it may decline to exercise jurisdiction under the Younger abstention doctrine.
*5 The supremacy of federal power in the field of immigration is made clear by the Constitution and has been repeatedly recognized by the Supreme Court. See U.S. Const., art. I, § 8, cl. 4 and art. II, cl. 6; De Canas v. Bica, 424 U.S. 351, 354 (1976); Hines v. Davidowitz, 312 U.S. 52, 62 (1941). However, it is equally well settled that, “standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration” that is “per se preempted by th[e] [federal] constitutional power, whether latent or exercised.” De Canas, 424 U.S. at 355.
Pursuant to the Supreme Court’s decision in De Canas, federal preemption of immigration-related state statutes and policies may be shown in three ways. First, federal law preempts any state statute or policy that constitutes a regulation of immigration, “which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain....” Id. Second, even if the state law or policy does not regulate immigration, it may be preempted if Congress intended to “occupy the field” the state has attempted to regulate, i.e., if it was “the clear and manifest purpose of Congress” to effect a “complete ouster of state power” that would “preclude even harmonious state regulation touching on aliens in general.” Id. at 357. Third, a state law or policy is preempted if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. at 363.
I. First De Canas Test Plaintiffs maintain that Defendants, through their policy of charging and prosecuting individual migrants for conspiring to smuggle themselves in violation of section 13–2319, “ha[ve] intruded into an area reserved to the federal government by the United States Constitution.”
4

Resp. (doc. # 38) at 13. As an initial matter, it should be repeated that the Constitution does not of its own force require the preemption of all state laws dealing with aliens. See De Canas, 424 U.S. at 355. The thrust of Plaintiffs’ argument appears to be that Defendants’ manner of enforcing the state’s alien smuggling law constitutes an impermissible regulation of immigration. To support this position, Plaintiffs cite to statements allegedly made by Defendants to the media, expressing “frustrat[ion] ... [with the] problem of illegal immigration that the government [of Mexico] is directly fomenting,” and presenting the view that “[t]here are many illegals trying to make it into [Maricopa] [C]ounty.” Resp. (doc. # 38) at 9; Compl. (doc. # 1) ¶ 48. Regardless of Defendants’ subjective views, their opinions alone do not transform their policies and official conduct into an impermissible regulatory scheme for “determin[ing] ... who should or should not be admitted into the country.” See De Canas, 424 U.S. at 355. Therefore, under the first De Canas test, the Court cannot conclude that the preemption of Defendants’ policies is so readily apparent as to render abstention under Younger improper.
ii. Second De Canas Test *6 Under the second De Canas test, Defendants’ policies may still be preempted if Congress intended to occupy the field that the state has attempted to regulate. See De Canas, 424 U.S. at 357. Congressional intent to preclude state action may be inferred “where the system of federal regulation is so pervasive that no opportunity for state activity remains.” Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir.1983), overruled on other grounds by Hodgers–Durgin v. De La Vina, 199 F.3d 1037 (9th Cir.1999) (en banc); De Canas, 424 U.S. at 357.
In the present case, preemption under the second De Canas test should be considered in the context of the statute Defendants’ policy is intended to enforce. It is evident from the plain language of section 13–2319 that the ambit of the state regulation in question relates solely to the smuggling of aliens.2 Therefore, the decisive inquiry is whether Congress intended to occupy the field of regulating criminal activities involving the smuggling of aliens. This question should be distinguished from the issue decided in Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir.1983). In that case the Ninth Circuit held that state law enforcement officers in Peoria, Arizona could enforce federal criminal immigration statutes, provided they had the authority to make such arrests under relevant state law. Gonzales, 722 F.2d at 474–75. The court concluded that Congress did not intend to occupy the field

We Are America/Somos America Coalition of Arizona v...., Not Reported in... 2007 WL 2775134

of criminal immigration enforcement, relying on the general rule that local police are not precluded from enforcing federal crimes. Id. at 474. Moreover, it was clear from the language and legislative history of the relevant federal statutes that Congress did not intend to preclude state law enforcement officers from enforcing federal criminal immigration statutes. Id. at 475. By contrast, in the present case, the state is not attempting to enforce any federal criminal immigration statutes— instead, it has enacted its own criminal immigration statute, which Defendants are enforcing pursuant to the policy challenged by Plaintiffs.
In briefing the issue of federal preemption, the parties have not addressed the important question raised by the second De Canas test. Accordingly, the Court will retain Defendants’ motion to dismiss under advisement pending the parties’ decision to submit supplemental briefing on the issue as permitted by this Order.

ineligible for those favorable status determinations. Generally, the commission of an “aggravated felony” renders an alien ineligible for the withholding or cancellation of removal pursuant to a status determination by the Attorney General. See, e.g., 8 U.S.C. §§ 1229(b)(2)(A)(iii)-(iv) and (C), 1231(b)(3)(B)(ii). For purposes of the Immigration and Naturalization act, Congress has defined specific categories of offenses that qualify as “aggravated felonies,” including
[the] offense described in [8 USCS § 1324(a)(1)(A) or (2) ] (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this Act.

iii. Third De Canas Test Plaintiffs argue that Defendants’ policy “is also preempted because it actually conflicts with federal law and policy.” Resp. (doc. # 38) at 13 n. 21. Under the third De Canas test, preemption is readily apparent if a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. at 363.
As Plaintiffs have noted, federal immigration law permits multiple categories of migrants to remain in the United States while applying for lawful status although they may have entered without inspection or documentation. For example, aliens seeking refugee or asylee status, see 8 U.S.C. §§ 1101(a)(42), 1157, 1158, may not be removed from the country if the United States Attorney General determines that such removal would threaten the life or freedom of that alien. See 8 U.S.C. § 1231(b)(3). Similarly, the Attorney General may adjust certain battered spouses and children to lawful status and cancel their removal. See 8 U.S.C. §§ 1154, 1229b(b)(2).
*7 In Plaintiffs’ view, Defendants’ policy of charging and prosecuting migrants for conspiracy to smuggle themselves in violation of Ariz.Rev.Stat. § 13–2319, without regard to the possibility of such status determinations, impedes the Attorney General’s accomplishment and execution of the objectives set out by Congress in the Immigration and Naturalization Act. To better evaluate the merits of this argument it is necessary to elaborate on the process by which an alien may become
5

8 U.S.C. § 1101(a)(43)(N) (emphasis added).
Although Ariz.Rev.Stat. § 13–2319, particularly as enforced pursuant to Defendants’ policy, provides no such exception to the imposition of state felony liability, the Court is not convinced that the state law stands as an obstacle to the accomplishment of the full purposes of the federal immigration laws. For the special purpose of deciding whether an applicant has committed a disqualifying “aggravated felony,” there is no reason that the Attorney General’s status determination cannot take into account the same exception set forth at 8 U.S.C. § 1101(a)(43)(N), which is merely a definitional statute, with respect to any alien smuggling convictions under Ariz.Rev.Stat. § 13–2319. Therefore, the Court cannot find that Defendants’ policy is preempted in a manner that is readily apparent on account of these perceived conflicts with federal law and policy.
Although Plaintiffs have not succeeded in establishing federal preemption under either the first or third De Canas tests, the Court will retain the motion under advisement, as indicated above, pending the parties’ decision to submit supplemental briefing on the second De Canas test for federal preemption in the area of immigration....

We Are America/Somos America Coalition of Arizona v...., Not Reported in... 2007 WL 2775134

C. Opportunity to Raise Federal Defenses in State Proceedings Plaintiffs argue that Younger abstention is also inappropriate, because they believe that state proceedings will not provide an adequate opportunity to raise their federal defenses. Resp. (doc. # 38) at 14–15.
Plaintiffs fail to explain why the state courts would be incompetent to adjudicate the merits of their federal defenses. They suggest that in the context of a putative class action such as this the Court should be more willing to find the state proceedings inadequate to eliminate the threat to the entire class. See id. at 14 (citing Riley v. Nev.Super. Ct., 763 F.Supp. 446, 451 (D .Nev.1991)). However, the holding of the case on which Plaintiffs rely was not predicated on the class action context. Rather, it was based on unique circumstances, not applicable here, in which the plaintiff class was challenging the rules of the Nevada courts. Riley, 763 F.Supp. at 451. In the instant case, Plaintiffs do not challenge any rules of the Arizona courts that would render them an inadequate forum for the resolution of their federal defenses.
*8 Plaintiffs also complain that the possibility of inconsistent lower court rulings somehow denies them an adequate safeguard for their federal constitutional rights. Resp. (doc. # 38) at 14. Plaintiffs have simply observed one reason that many judicial systems have developed higher courts of review. It does not, however, render the state courts inadequate or incompetent to hear their federal defenses.
Finally, Plaintiffs maintain that, as a practical matter, many members of the putative class may enter guilty pleas to end their incarceration as they await trial. Id. at 15. The fact that Plaintiffs may choose not to avail themselves of their federal defenses in the state courts does not render them an inadequate forum. In sum, Plaintiffs have failed to demonstrate any reason why they could not adequately present their federal claims in the

state proceedings.
IV. CONCLUSION Because it appears that Younger abstention may be required, pending the parties’ decision to submit supplemental briefing on federal preemption under the second De Canas test, the Court need not address questions of Article III standing at this time.3 For the same reason, it may prove unnecessary to resolve the issues of class of certification that have been raised by Plaintiffs. Therefore,
IT IS ORDERED that Defendants’ motion to dismiss (doc. # 32) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED permitting Plaintiffs, if they choose, to file within 15 (fifteen) days from the date of entry of this Order a brief addressing the applicability of the second De Canas test, discussed at Part III.B.2.ii, supra, to the issue of federal preemption. If Plaintiffs file a supplemental brief on the second De Canas test, Defendants may file a brief addressing the same issue within 10(ten) days from the date of filing of Plaintiffs’ supplemental brief. Further briefing is not permitted unless hereafter allowed by the court.
IT IS FURTHER ORDERED that Plaintiffs’ motion for class certification (doc. # 20) is DENIED without prejudice.
All Citations
Not Reported in F.Supp.2d, 2007 WL 2775134

Footnotes

1

The federal criminal offense of alien smuggling is defined in more detailed terms at 8 U.S.C. § 1824.

2

Under the statute, it is a felony “for a person to intentionally engage in the smuggling of human beings for profit or commercial

purpose.” Ariz.Rev.Stat. § 13–2319(A)–(C). For purposes of the statute, the “[s]muggling of human beings” is defined as “the

transportation or procurement of transportation by a person or an entity that knows or has reason to know that the person or

persons transported or to be transported are not United States citizens, permanent resident aliens or persons otherwise lawfully

in this state.” Ariz.Rev.Stat. § 13–2319(D)(2).

3

The Court notes that the case could not be dismissed in its entirety solely on the basis of standing. For instance, the municipal

taxpayer plaintiffs have sufficiently pled the injury of improper expenditures of municipal funds. See Cammack v. Waihee,

932F.2d 765, 770 (9th Cir.1991) (concluding “that municipal taxpayer standing simply requires the ‘injury’ of an allegedly

6

We Are America/Somos America Coalition of Arizona v...., Not Reported in... 2007 WL 2775134
improper expenditure of municipal funds.”). Plaintiffs have alleged that they object to Defendant Maricopa County’s use of tax funds for the arrest, detainment, prosecution, and imprisonment of migrants for conspiracy to smuggle themselves in violation of Ariz.Rev.Stat. § 13–2319. Compl. (doc. # 1) ¶¶ 11, 13–15. While Defendants may be correct that arrests, detainments, and prosecutions will not increase the fixed salary expenditures for the employees carrying out those duties, the same cannot be said for the additional incremental costs of housing and feeding individuals in the county jails. Therefore, Plaintiffs have pled sufficient facts to demonstrate their standing as municipal taxpayers. End of Document
7

 
 Case: 09-15281, 07/12/2010, ID: 7400603, DktEntry: 43-1, Page 1 of 2
FILED

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS

JUL 12 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WE ARE AMERICA/SOMOS AMERICA COALITION OF ARIZONA et al.,
Plaintiffs - Appellants,
v.
MARICOPA COUNTY BOARD OF SUPERVISORS et al.,
Defendants - Appellees.

No. 09-15281 D.C. No. 2:06-cv-02816-RCB MEMORANDUM*

Appeal from the United States District Court for the District of Arizona
Robert C. Broomfield, Senior District Judge, Presiding
Argued and Submitted February 9, 2010 San Francisco, California
Before: KOZINSKI, Chief Judge, GOODWIN and IKUTA, Circuit Judges.
The district court correctly determined that it lacked jurisdiction under
Younger v. Harris, 401 U.S. 37 (1971), to consider the claims of the six plaintiffs
who are Mexican nationals: A federal court decision would improperly interfere
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Case: 09-15281, 07/12/2010, ID: 7400603, DktEntry: 43-1, Page 2 of 2
page 2 with the state criminal proceedings that had already begun against them. See Woodfeathers, Inc. v. Wash. County, 180 F.3d 1017, 1020 (9th Cir. 1999). Arizona has an important interest in enforcing its criminal statutes, and it’s not “readily apparent” that federal law preempts Ariz. Rev. Stat. § 13-2319 or Maricopa County’s enforcement policy. See id. at 1021. The Mexican national plaintiffs also have an adequate opportunity to litigate their constitutional claims in the state court proceedings. See id. at 1020–21.
The district court erred, however, in concluding that Younger abstention barred it from considering the organizational and taxpayer claims. Those plaintiffs weren’t parties to the state court proceedings, and they’re not sufficiently intertwined with the plaintiffs who were parties to trigger Younger. See Doran v. Salem Inn, Inc., 422 U.S. 922, 928–29 (1975); Green v. City of Tuscon, 255 F.3d 1086, 1099–1100 (9th Cir. 2001) (en banc), limited on other grounds, Gilbertson v. Albright, 381 F.3d 965, 968–69 (9th Cir. 2004) (en banc). On remand, the district court must still determine whether the organizational and taxpayer plaintiffs have standing to pursue their claims.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED. No costs.

Case: 09-15281, 07/12/2010, ID: 7400603, DktEntry: 43-2, Page 1 of 5

United States Court of Appeals for the Ninth Circuit

Office of the Clerk 95 Seventh Street San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings (December 2009)

Judgment • This Court has filed and entered the attached judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2) • The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1) Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. •
•

Purpose (Panel Rehearing): A party should seek panel rehearing only if one or more of the following grounds exist: ► A material point of fact or law was overlooked in the decision; ► A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or ► An apparent conflict with another decision of the Court was not
addressed in the opinion. Do not file a petition for panel rehearing merely to reargue the case.

B. Purpose (Rehearing En Banc) • A party should seek en banc rehearing only if one or more of the following
grounds exist:

Post Judgment Form - Rev. 12/2009

1

Case: 09-15281, 07/12/2010, ID: 7400603, DktEntry: 43-2, Page 2 of 5
► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or ► The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
(2) Deadlines for Filing: • A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. • See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date). • An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.
(3) Statement of Counsel • A petition should contain an introduction stating that, in counsel’s judgment, one or more of the situations described in the “purpose” section above exist. The points to be raised must be stated clearly.
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2)) • The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. • The petition must be accompanied by a copy of the panel’s decision being challenged. • An answer, when ordered by the Court, shall comply with the same length limitations as the petition. • If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.

Post Judgment Form - Rev. 12/2009

2

Case: 09-15281, 07/12/2010, ID: 7400603, DktEntry: 43-2, Page 3 of 5
• The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at under Forms.
• You may file a petition electronically via the appellate ECF system. No paper copies are required unless the Court orders otherwise. If you are a pro se litigant or an attorney exempted from using the appellate ECF system, file one original petition on paper. No additional paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1) • The Bill of Costs must be filed within 14 days after entry of judgment. • See Form 10 for additional information, available on our website at under Forms.
Attorneys Fees • Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees applications. • All relevant forms are available on our website at under Forms or by telephoning (415) 355-7806.
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Post Judgment Form - Rev. 12/2009

3

Case: 09-15281, 07/12/2010, ID: 7400603, DktEntry: 43-2, Page 4 of 5 Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

United States Court of Appeals for the Ninth Circuit

BILL OF COSTS

Note:

If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.

v.

9th Cir. No.

The Clerk is requested to tax the following costs against:

Cost Taxable under FRAP 39, 28 U.S.C. § 1920, 9th Cir. R. 39-1
Excerpt of Record Opening Brief Answering Brief

REQUESTED Each Column Must Be Completed

ALLOWED To Be Completed by the Clerk

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

Reply Brief

$

$

$

$

Other**

$

$

$

$

TOTAL: $

TOTAL: $

* Costs per page may not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered.

Attorneys' fees cannot be requested on this form.

Continue to next page.

Case: 09-15281, 07/12/2010, ID: 7400603, DktEntry: 43-2, Page 5 of 5 Form 10. Bill of Costs - Continued

I,

, swear under penalty of perjury that the services for which costs are taxed

were actually and necessarily performed, and that the requested costs were actually expended as listed.

Signature ("s/" plus attorney's name if submitted electronically) Date
Name of Counsel:

Attorney for:

(To Be Completed by the Clerk) Date

Costs are taxed in the amount of $ Clerk of Court By:

, Deputy Clerk

We Are America/Somos America C, et al v. Maricopa County Board of Super, et al, Docket No. 09-15281 (9th Cir. Feb 17, 2009),
General Information

Court
Federal Nature of Suit Docket Number Status

United States Court of Appeals for the Ninth Circuit; United States Court of Appeals for the Ninth Circuit
Constitutionality of State Statutes[3950]
09-15281
Closed

© 2016 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 8

 
 Case 2:06-cv-02816-DJH Document 169 Filed 11/04/14 Page 1 of 11

1 CENTER FOR HUMAN RIGHTS & CONSTITUTIONAL LAW

Peter A. Schey (Cal. Bar No. 58232) 2 Carlos Holguin (Cal. Bar No. 90754)

3 256 S. Occidental Blvd. Los Angels, CA 90057

4 Telephone: 213.388.8693 ext.s 304 & 309

Facsimile: 213.386.9484 5 Email: pshey@centerforhumanrights.org

6

crholguin@centerforhumanrights.org

7 H. Michael Clyde (009647)

8

MClyde@perkinscoie.com PERKINS COIE BROWN & BAIN P.A.

9 2901 N. Central Avenue, Suite 2000 Phoenix, AZ 85012-2788
10 Telephone: 602.351.8000

11 Facsimile: 602.648.7000

12 Attorneys for plaintiffs

13 (Plaintiffs' attorneys continued on page 2)

14

UNITED STATES DISTRICT COURT

15

DISTRICT OF ARIZONA

16 WE ARE AMERICA/SOMOS AMERICA 17 COALITION OF ARIZONA; et al.,

18

Plaintiffs,

19 - vs -

20 MARICOPA COUNTY BOARD OF 21 SUPERVISORS; et al.,

22

Defendants.

No. CV06-2816-PHX-DJH
PLAINTIFFS’ STATEMENT AND NOTICE OF FILING OF SETTLEMENT IN LIEU OF STIPULATION OF DISMISSAL.
Assigned to Hon. Diane J. Humetewa

23

24

25

26

27

28

Case 2:06-cv-02816-DJH Document 169 Filed 11/04/14 Page 2 of 11

1 Plaintiffs’ counsel continued:

2 Ray Velarde (TX Bar #20539950) 3 LULAC National Legal Adviser
1216 Montana 4 El Paso, TX 79902
Telephone: (915) 373-6003 5 Email:rayvelarde2003@yahoo.com

6 Dan Ballecer (AZ Bar #15616)

7 1095 E. Indian School Road

Phoenix, AZ 85014 8 Telephone: (602) 277-0044

9

Facsimile: (602) 277-1097 Email: dballecer@cox.net

10

Antonio Bustamante (AZ Bar #7256) 11 1001 N. Central Avenue Suite 660

12

Phoenix, AZ 85014 Telephone: (602) 277-0044

13 Facsimile: (602) 277-1097

Email: antonio_b@quest.net 14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Statement and Notice of Filing in Lieu of Dismissal

- 2 -

Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

Case 2:06-cv-02816-DJH Document 169 Filed 11/04/14 Page 3 of 11

1

On August 28, 2014, the parties concluded a settlement pursuant to which they

2 would dismiss their respective appeals from this Court’s summary judgment and permanent

3 injunction of September 27, 2013, Dkt. No. 137, reported at We Are America/Somos Am. v.

4 Maricopa County Bd. of Supervisors, 297 F.R.D. 373 (D. Ariz. 2013). The parties also

5 agreed to settle plaintiffs’ claims for attorney’s fees and non-taxable costs. The parties’

6 final agreement is filed herewith as Exhibit A.

7

By order dated October 21, 2014, the Court directed the parties to submit a

8 stipulation voluntarily dismissing this action in its entirety in light of defendants’ having

9 formally executed the settlement. Dkt. No. 168.

10

Although the dismissal of the parties’ appeals and the settlement of plaintiffs’

11 attorney’s fees claim brings this case to a close, the parties ultimately agreed that this

12 Court’s September 27, 2013, judgment should remain undisturbed. Plaintiffs respectfully

13 submit that the Court’s judgment is now final and concludes this matter without need for a

14 further order of dismissal.

15

Recital 2 of the parties’ agreement accurately states: On September 27, 2013, the

16 Court granted plaintiffs’ motion for summary judgment on the grounds that defendants’

17 challenged policy was preempted by federal law. The Court thereupon permanently

18 enjoined defendants from further arresting or prosecuting non-smuggler migrants for

19 conspiring to transport themselves in violation of Ariz. Rev. Stat. § 13-2319. The Court

20 then dismissed plaintiffs’ remaining claims with prejudice. 297 F.R.D. at 399. The Court

21 “retain[ed] continuing jurisdiction to enforce the terms of this Order and Permanent

22 Injunction.” Id. at 400.

23 Both defendants and plaintiffs appealed from that judgment, and plaintiffs moved

24 this Court for an award of attorney’s fees and not-taxable costs. See Dkt. No. 141. The

25 parties thereafter mediated a settlement of the only issues remaining in this litigation:

26 namely, dismissal of their respective appeals and settlement of plaintiffs’ claim for

27 attorney’s fees.

28

Statement and Notice of Filing in Lieu of Dismissal

- 3 -

Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

Case 2:06-cv-02816-DJH Document 169 Filed 11/04/14 Page 4 of 11

1

As concerns this Court’s judgment, ¶ 1 of the settlement provides, “Plaintiffs and

2 Defendants will not challenge or seek to alter, amend, revise, change, or otherwise overturn

3 the Permanent Injunction or any other ruling of the United States District Court for the

4 District of Arizona” in this case.

5

Pursuant to the parties’ agreement, therefore, this Court’s judgment remains in place

6 and the Court retains continuing jurisdiction to enforce the order and permanent injunction

7 of September 27, 2013. A further order of dismissal is accordingly unnecessary.1

8 November 4, 2014.
9
10
11

CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holguin 256 S. Occidental Blvd. Los Angeles, CA 90057

12

By s/ Carlos Holguin

13

PERKINS COIE BROWN & BAIN P.A.

H. Michael Clyde

14

2901 N. Central Avenue, Suite 2000

Phoenix, AZ 85012-2788 15

LULAC National Legal Adviser

16

Ray Velarde

17

1216 Montana

El Paso, TX 79902

18

Dan Ballecer

19

1095 E. Indian School Road

20

Phoenix, AZ 85014

21

Antonio Bustamante

1001 N. Central Avenue Suite 660

22

Phoenix, AZ 85014

23

Attorneys for plaintiffs

24

25

26 1 Plaintiffs acknowledge that the parties’ Stipulation to Enlarge Time to File Memorandum

27 and Documentation In Support of Motion for Attorney’s Fees, etc., (Dkt. No. 164), advised that this action would be dismissed upon the parties’ concluding a settlement. But as has

28 been seen, the parties’ final agreement makes dismissal unnecessary. Plaintiffs apologize

for any confusion or inconvenience the stipulation has caused.

Statement and Notice of Filing in Lieu of Dismissal

- 4 -

Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

Case 2:06-cv-02816-DJH Document 169 Filed 11/04/14 Page 5 of 11
Exhibit A

Case 2:06-cv-02816-DJH Document 169 Filed 11/04/14 Page 6 of 11

Case 2:06-cv-02816-DJH Document 169 Filed 11/04/14 Page 7 of 11

Case 2:06-cv-02816-DJH Document 169 Filed 11/04/14 Page 8 of 11

Case 2:06-cv-02816-DJH Document 169 Filed 11/04/14 Page 9 of 11

Case 2:06-cv-02816-DJH Document 169 Filed 11/04/14 Page 10 of 11

Case 2:06-cv-02816-DJH Document 169 Filed 11/04/14 Page 11 of 11

1
CERTIFICATE OF SERVICE

2
I hereby certify that on November 4, 2014, I electronically transmitted the attached

3
documents to the Clerk’s Office using the CM/ECF System.

4

s/Carlos Holguin

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Submission and Notice of Filing in Lieu of Dismissal

- 5 -

Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

 
 Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 1 of 27
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:06−cv−02816−DJH

CLOSED,STD

We Are America/Somos America Coalition of Arizona et al v.Maricopa County Board of Supervisors, et al. Assigned to: Judge Diane J Humetewa Case in other court: Ninth Circuit, 09−15281
Ninth Circuit, 13−17193
Ninth Circuit, 13−17264 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 11/21/2006 Date Terminated: 10/04/2013 Jury Demand: Defendant Nature of Suit: 950 Other Statutes: Constitutionality of State Statutes Jurisdiction: Federal Question

We Are America/Somos America Coalition of Arizona

represented by Antonio D Bustamante Law Office of Antonio D Bustamante PC 1001 N Central Ave Ste 660 Phoenix, AZ 85004−1961 602−495−1414 Fax: 602−253−7724 Email: antonio@bustamantelawaz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlos Holguin Center for Human Rights &Constitutional Law 256 S Occidental Blvd. Los Angeles, CA 90057 213−388−8693 Fax: 213−386−9484 Email: crholguin@centerforhumanrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danilo Ballecer Ballecer &Segal LLP 1095 E Indian School Rd Ste 600 Phoenix, AZ 85014 602−277−0044 Fax: 602−277−1097 Email: dballecer2@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey Center for Human Rights &Constitutional Law 256 S Occidental Blvd. Los Angeles, CA 90057 213−388−8693 Fax: 213−386−9484 Email: pschey@centerforhumanrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ray Velarde Law Office Of Ray Velarde 1216 Montana Ave El Paso, TX 79902

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 2 of 27

915−532−6003 Fax: 915−542−2341 Email: velardelaw2005@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Michael Clyde Perkins Coie LLP PO Box 400 Phoenix, AZ 85001−0400 602−351−8000 Fax: 602−648−7035 Email: MClyde@perkinscoie.com ATTORNEY TO BE NOTICED

Plaintiff Arizona Hispanic Community Forum

represented by Antonio D Bustamante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danilo Ballecer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ray Velarde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Michael Clyde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
League of United Latin American Citizens Arizona TERMINATED: 08/18/2011

represented by Antonio D Bustamante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danilo Ballecer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 3 of 27

ATTORNEY TO BE NOTICED

Ray Velarde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Michael Clyde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Friendly House TERMINATED: 05/03/2012

represented by Antonio D Bustamante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danilo Ballecer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ray Velarde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Michael Clyde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Raul Vixtha Bomaye

represented by Antonio D Bustamante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danilo Ballecer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ray Velarde (See above for address)

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 4 of 27

LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Michael Clyde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Javier Romero Encino

represented by Antonio D Bustamante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danilo Ballecer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ray Velarde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Michael Clyde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rosa Flor Diaz Godines

represented by Antonio D Bustamante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danilo Ballecer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ray Velarde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Michael Clyde

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 5 of 27

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff Adriana Rodriguez Espiritu

represented by Antonio D Bustamante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danilo Ballecer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ray Velarde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Michael Clyde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Juan Manuel Cortez Cuellar

represented by Antonio D Bustamante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danilo Ballecer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ray Velarde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Michael Clyde (See above for address) ATTORNEY TO BE NOTICED

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 6 of 27

Plaintiff Hugo Enrique Sanchez Diego

represented by Antonio D Bustamante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danilo Ballecer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ray Velarde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Michael Clyde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Krysten Sinema State Representative TERMINATED: 05/03/2012

represented by Antonio D Bustamante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danilo Ballecer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ray Velarde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Michael Clyde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Steve Gallardo State Representative

represented by Antonio D Bustamante (See above for address)

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 7 of 27

TERMINATED: 08/18/2011

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danilo Ballecer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ray Velarde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Michael Clyde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
David Lujan State Representative

represented by Antonio D Bustamante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danilo Ballecer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ray Velarde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Michael Clyde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Cecilia Menjivar Professor TERMINATED: 05/03/2012

represented by Antonio D Bustamante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlos Holguin

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 8 of 27

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danilo Ballecer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ray Velarde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Michael Clyde (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
LaDawn Haglund Professor

represented by Antonio D Bustamante (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danilo Ballecer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Anthony Schey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ray Velarde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Michael Clyde (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Andrew P Thomas Maricopa County Attorney TERMINATED: 07/20/2010

represented by Dennis Ira Wilenchik Wilenchik &Bartness PC 2810 N 3rd St., Ste. 103 Phoenix, AZ 85004 602−606−2810 Fax: 602−606−2811 Email: diw@wb−law.com

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 9 of 27

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy James Casey Schmitt Schneck Smyth Casey &Even PC 1221 E Osborn Rd., Ste. 105 Phoenix, AZ 85014−5540 602−277−7000 Fax: 602−277−8663 Email: timcasey@azbarristers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce P White Maricopa County Attorney's Office Division of County Counsel 222 N Central Ave Ste 1100 Phoenix, AZ 85004 602−506−6173 Fax: 602−506−8567 Email: whiteb@mcao.maricopa.gov ATTORNEY TO BE NOTICED

Defendant
Joseph M Arpaio Maricopa County Sheriff

represented by Dennis Ira Wilenchik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy James Casey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Maricopa County Board of Supervisors governing body for Maricopa County, a political subdivision of the State of Arizona

represented by Dennis Ira Wilenchik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy James Casey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Fulton Brock Member of the Maricopa County Board of Supervisors

represented by Dennis Ira Wilenchik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy James Casey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Don Stapley Member of the Maricopa County Board of Supervisors

represented by Dennis Ira Wilenchik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 10 of 27

Defendant Andrew W Kunasek Member of the Maricopa County Board of Supervisors
Defendant Max W Wilson Member of the Maricopa County Board of Supervisors
Defendant Mary Rose Wilcox Member of the Maricopa County Board of Supervisors
Defendant Richard M Romley Maricopa County Attorney

Timothy James Casey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis Ira Wilenchik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy James Casey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis Ira Wilenchik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy James Casey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sally Wolfgang Wells Maricopa County Attorneys Office 301 W Jefferson St 8th Floor Phoenix, AZ 85003 602−506−3411 Fax: 602−506−8102 Email: wells@mcao.maricopa.gov TERMINATED: 07/20/2010
represented by Dennis Ira Wilenchik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy James Casey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne Cecile Longo MCAO Division of County Counsel − 222 N Central Ave Ste 1100 Phoenix, AZ 85004−2926 602−506−5269 Fax: 602−506−6083 Email: longoa@mcao.maricopa.gov ATTORNEY TO BE NOTICED
Bruce P White

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 11 of 27

(See above for address) ATTORNEY TO BE NOTICED

Dennis Ira Wilenchik (See above for address) TERMINATED: 07/27/2010 ATTORNEY TO BE NOTICED

Sally Wolfgang Wells (See above for address) TERMINATED: 07/27/2010

Timothy James Casey (See above for address) TERMINATED: 07/27/2010 ATTORNEY TO BE NOTICED

Defendant William G Montgomery

represented by Timothy James Casey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anne Cecile Longo (See above for address) TERMINATED: 10/18/2011 ATTORNEY TO BE NOTICED

Bruce P White (See above for address) TERMINATED: 10/18/2011 ATTORNEY TO BE NOTICED

Laurence G Tinsley , Jr. Maricopa County Attorneys Office − Civil Services Division 222 N Central Ave., Ste. 1100 Phoenix, AZ 85004 602−506−8541 Fax: 602−506−8567 Email: tinsleyl@mcao.maricopa.gov TERMINATED: 10/18/2011 ATTORNEY TO BE NOTICED

Date Filed 11/21/2006
11/21/2006
11/21/2006

# Docket Text
1 COMPLAINT, filed by Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu.(Clyde, Hal) (Entered: 11/21/2006)
2 Notice re of Claim of Unconstitutionality by Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu (Clyde, Hal) (Entered: 11/21/2006)
3 Filing fee paid 11/22/06, receipt number PHX051169. This case has been assigned to the Honorable Robert C. Broomfield. All future pleadings or documents should bear the correct case number: CV06−2816−PHX−RCB. Notice of Availability of

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 12 of 27

11/28/2006 12/04/2006
12/04/2006 12/04/2006
12/04/2006 12/07/2006 12/07/2006 12/07/2006 12/07/2006
12/07/2006

Magistrate Judge to Exercise Jurisdiction form attached. (ESL) (Entered: 11/28/2006)
4 Summons Issued as to Andrew Thomas, Joseph M Arpaio, Fulton Brock, Don Stapley, Andrew Kunasek, Max W Wilson, Mary Rose Wilcox. (Attachments: # 1 Fulton# 2 Don# 3 Andrew# 4 Max# 5 Mary Rose# 6 Andrew Thomas# 7 Joseph)(ESL, ) (Entered: 11/28/2006)
5 MOTION for Admission Pro Hac Vice as to attorney Carlos Holguin on behalf of plaintiffs Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, and Adriana Rodriguez Espiritu. (BAS, ) (Entered: 12/04/2006)
6 ORDER pursuant to General Order 05−25 granting 5 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/04/2006)
7 MOTION for Admission Pro Hac Vice as to attorney Peter A Schey pn behalf of plaintiffs Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, and Adriana Rodriguez Espiritu. (BAS, ) (Entered: 12/04/2006)
8 ORDER pursuant to General Order 05−25 granting 7 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/04/2006)
9 SUMMONS Returned Executed by We aRe America/Somos America Coalition of AZ. Joseph M Arpaio served on 11/28/2006, answer due 12/18/2006. (Clyde, Hal) Modified on 12/8/2006 DOCKET TEXT MODIFIED TO IDENTIFY CORRECT FILER, (LSP). (Entered: 12/07/2006)
10 SUMMONS Returned Executed by We Are America/Somos America Coalition of ARizona. Fulton Brock served on 11/28/2006, answer due 12/18/2006. (Clyde, Hal) (Entered: 12/07/2006)
11 SUMMONS Returned Executed by We Are America/Somos America Coalition of ARizona. Andrew Kunasek served on 11/28/2006, answer due 12/18/2006. (Clyde, Hal) (Entered: 12/07/2006)
12 SUMMONS Returned Executed by Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu. Maricopa County Board of Super served on 11/28/2006, answer due 12/18/2006. (Clyde, Hal) (Entered: 12/07/2006)
13 SUMMONS Returned Executed by Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu. Don Stapley served on 11/28/2006, answer due 12/18/2006. (Clyde, Hal) (Entered: 12/07/2006)

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 13 of 27

12/07/2006 12/07/2006 12/07/2006 12/08/2006 12/08/2006 12/11/2006 12/13/2006 12/13/2006
12/13/2006

14 SUMMONS Returned Executed by Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu. Mary Rose Wilcox served on 11/28/2006, answer due 12/18/2006. (Clyde, Hal) (Entered: 12/07/2006)
15 SUMMONS Returned Executed by Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu. Max W Wilson served on 11/28/2006, answer due 12/18/2006. (Clyde, Hal) (Entered: 12/07/2006)
16 SUMMONS Returned Executed by Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu. Andrew Thomas served on 11/28/2006, answer due 12/18/2006. (Clyde, Hal) (Entered: 12/07/2006)
17 NOTICE TO FILER OF DEFICIENCY re 9 Summons Returned Executed − Complaint/Habeas Petition Only filed by Joseph M Arpaio. Description of deficiency: Document reflects incorrect filer. (LSP) (Entered: 12/08/2006)
18 MOTION for Admission Pro Hac Vice as to attorney Ray Velarde on behalf of plaintiffs Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, and Adriana Rodriguez Espiritu. (BAS, ) (Entered: 12/11/2006)
19 ORDER pursuant to General Order 05−25 granting 18 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/11/2006)
20 MOTION to Certify Class by Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu. (Clyde, Hal) (Entered: 12/13/2006)
21 Memorandum in Support of Motion for Class Certification by Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu. (Attachments: # 1 Exhibit 1 − 5)(Clyde, Hal) Modified on 1/19/2007, INCORRECT EVENT SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM "Motion" TO "Memorandum", (LSP). (Entered: 12/13/2006)
22 DECLARATION re 20 MOTION to Certify Class Declaration of H. Michael Clyde in Support of Motion for Class Certification by Plaintiffs Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu.

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 14 of 27

12/14/2006
12/18/2006 12/18/2006
12/19/2006 12/22/2006 01/03/2007 01/09/2007 01/09/2007 01/18/2007 01/18/2007 01/19/2007 01/29/2007

(Clyde, Hal) (Entered: 12/13/2006)
23 Notice re Notice of Lodging Amended Proposed Order Certifying Class Action by Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu re 20 MOTION to Certify Class (Attachments: # 1 Text of Proposed Order Amended Proposed Order Certifying Class Action)(Clyde, Hal) (Entered: 12/14/2006)
24 STIPULATION FOR EXTENSION OF TIME TO ANSWER COMPLAINT by Andrew Thomas, Joseph M Arpaio, Maricopa County Board of Super, Fulton Brock, Don Stapley, Andrew Kunasek, Max W Wilson, Mary Rose Wilcox. (Casey, Timothy) (Entered: 12/18/2006)
25 Lodged Proposed Order Extending Time for Defendants to Answer Complaint by Andrew Thomas, Joseph M Arpaio, Maricopa County Board of Super, Fulton Brock, Don Stapley, Andrew Kunasek, Max W Wilson, Mary Rose Wilcox re 24 Stipulation For Extension of Time To Answer Complaint (Casey, Timothy) Modified on 12/19/2006, INCORRECT EVENT SELCETED. THIS ENTRY HAS BEENMODIFIED FROM "Notice re" TO "Lodged Proposed", (LSP). (Entered: 12/18/2006)
26 NOTICE TO FILER OF DEFICIENCY re 25 Other Notice, filed by Don Stapley, Joseph M Arpaio, Andrew Kunasek, Mary Rose Wilcox, Andrew Thomas, Fulton Brock, Maricopa County Board of Super, Max W Wilson. Description of deficiency: Incorrect document type selected. (LSP) (Entered: 12/19/2006)
27 ORDER granting 24 Stipulation For Extension Of Time To Answer Complaint. Defendants shall have an extension until and including 1/18/2007 to answer, move and/or responsively plead to plaintiffs' Complaint. Signed by Judge Robert C Broomfield on 12/20/06.(RCB)(.pdf document is attached) (Entered: 12/22/2006)
28 STIPULATION re 20 MOTION to Certify Class The Parties Stipulation to Extend Time for Defendants to Respond to Plaintiffs' Motion for Class Certification by Maricopa County Board of Super. (Attachments: # 1 Text of Proposed Order Order Extending Time for Defendants to Respond to Plaintiffs' Motion for Class Certification)(Casey, Timothy) (Entered: 01/03/2007)
29 STIPULATION re 28 Stipulation, (Second Request) The Parties' Stipulation to Extend Time for Defendants to Respond to Plaintiffs' Motion for Class Certification by Maricopa County Board of Super. (Attachments: # 1 Text of Proposed Order Order Extending Time for Defendants to Respond to Paintiffs' Motion for Class Certification)(Casey, Timothy) (Entered: 01/09/2007)
30 ORDER re 28 STIPULATION re 20 MOTION to Certify Class. The parties stipulate to extend time for defendants to respond to plaintiffs' Motion for Class Certification. Defendants shall have an extension of time to respond to plaintiffs' Motion for Class Certification until and including 1/9/07. Signed by Judge Robert C Broomfield on 1/8/07.(RCB)(.pdf document is attached) (Entered: 01/09/2007)
31 RESPONSE in Opposition re 21 MOTION to Certify Class Memorandum in Support of Motion for Class Certification, 20 MOTION to Certify Class filed by Max W Wilson. (Wells, Sally) (Entered: 01/18/2007)
32 First MOTION to Dismiss Case by Max W Wilson. (Wells, Sally) (Entered: 01/18/2007)
33 ORDER granting 29 STIPULATION to Extend Time for Defendants to Respond to Plaintiffs' Motion for Class Certification. Defendants are granted an extension of time to respond to plaintiffs' Motion for Class Certification until and including 1/18/07. Signed by Judge Robert C Broomfield on 1/18/07.(RCB)(.pdf document is attached) (Entered: 01/19/2007)
34 REPLY to Response to Motion re 21 MOTION to Certify Class Memorandum in Support of Motion for Class Certification, 20 MOTION to Certify Class Reply in

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 15 of 27

02/26/2007
02/27/2007
03/08/2007 03/15/2007 03/23/2007 03/26/2007 04/03/2007 04/04/2007 09/21/2007 10/09/2007

Support of Plaintiffs' Motion for Class Certification filed by Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu. (Attachments: # 1 Exhibit Declaration of Carlos Holguin)(Clyde, Hal) (Entered: 01/29/2007)
35 First MOTION for Extension of Time To Respond to Defendants' Motion to Dismiss by Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu. (Attachments: # 1 Text of Proposed Order (Proposed) Order Granting Extension on Time for Plaintiffs to Respond ot Defendants' Motion to Dismiss)(Clyde, H) (Entered: 02/26/2007)
36 ORDER granting 35 First Motion for Extension of Time To Respond to Defendants' Motion to Dismiss. Plaintiffs shall have an extension through and including 3/8/07 to respond to defendants' Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)6 of the Federal Rules of Civil Procedure. Signed by Judge Robert C Broomfield on 2/26/07. (RCB)(.pdf document is attached) (Entered: 02/27/2007)
37 Second MOTION for Extension of Time PLAINTIFFS TO RESPOND TO DEFENDANTS MOTION TO DISMISS by We Are America/Somos America Coalition of ARizona. (Schey, Peter) (Entered: 03/08/2007)
38 RESPONSE in Opposition re 32 First MOTION to Dismiss Case filed by We Are America/Somos America Coalition of ARizona. (Schey, Peter) (Entered: 03/15/2007)
39 ORDERED granting 37 the Parties' Stipulation to Extend Time for Plaintiffs to Respond to Defendants' Motion to Dismiss. Plaintiffs shall have through and including 3/15/07 to respond. Signed by Judge Robert C Broomfield on 3/22/07. (RCB)(.pdf document is attached) (Entered: 03/23/2007)
40 REPLY to Response to Motion re 32 First MOTION to Dismiss Case filed by Andrew Thomas, Joseph M. Arpaio, Maricopa County Board of Super, Fulton Brock, Don Stapley, Andrew Kunasek, Max W Wilson, Mary Rose Wilcox. (Wells, Sally) DOCUMENT IS UNSIGNED, ATTORNEY NOTICED TO REFILE. modified on 4/3/2007 (ESL, ). (Entered: 03/26/2007)
41 NOTICE TO FILER OF DEFICIENCY re 40 Reply to Response to Motion filed by Don Stapley, Joseph M. Arpaio, Andrew Kunasek, Mary Rose Wilcox, Andrew Thomas, Maricopa County Board of Super, Fulton Brock, Max W Wilson. Description of deficiency: Document does not contain a signature. (ESL) (Entered: 04/03/2007)
42 REPLY in Support re 32 First MOTION to Dismiss Case Corrected with /s/ filed by Andrew Thomas, Joseph M. Arpaio, Maricopa County Board of Super, Fulton Brock, Don Stapley, Andrew Kunasek, Max W Wilson, Mary Rose Wilcox. (Wells, Sally) (Entered: 04/04/2007)
43 ORDER granting in part and denying in part 32 Dfts' Motion to Dismiss Case and denying 20 Plas' Motion to Certify Class. Signed by Judge Robert C Broomfield on 9/20/07.(LSP) (Entered: 09/21/2007)
44 SUPPLEMENT Plaintiffs' Supplemental Briefing on Field Preemption by Plaintiffs Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu. (Clyde, H) (Entered: 10/09/2007)

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 16 of 27

10/12/2007 10/12/2007
10/24/2007 11/09/2007
11/26/2007 07/17/2008
09/30/2008
10/14/2008 11/10/2008 11/20/2008
01/13/2009 01/13/2009

45 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against all defendants, filed by We Are America/Somos America Coalition of ARizona.(Schey, Peter) (Entered: 10/12/2007)
46 MOTION for Scheduling of Preliminary Scheduling Conference by We Are America/Somos America Coalition of ARizona. (Attachments: # 1 Supplement Memorandum of Points and Authorities in Support of Motion for Preliminary Scheduling Conference)(Schey, Peter) Modified on 10/15/2007, INCORRECT MOTION TYPE SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM "Miscellaneous Relief" TO "Hearing or Conference", (LSP). (Entered: 10/12/2007)
47 SUPPLEMENT of Defendants' Supplemental Brief Regarding the Absence of Field Preemption by Defendants Andrew Thomas, Joseph M. Arpaio, Maricopa County Supervisors, Board of, Don Stapley, Andrew Kunasek, Max W Wilson, Mary Rose Wilcox. (Casey, Timothy) (Entered: 10/24/2007)
48 ORDER. Defendants are ordered to advise the court within 15 days of the date hereof as to whether the filing of the amended complaint moots the issue pertaining to the second DeCanas test. Alternatively, defendants may elect to move with respect to the amended complaint. FURTHER ORDERED that any such defense motion shall be filed and served no later than 5:00 p.m. Monday, 11/26/07. Signed by Judge Robert C Broomfield on 11/9/07. (RCB)(.pdf document is attached) (Entered: 11/09/2007)
49 RESPONSE re 48 Order, Defendants' Response Required by the Court's Order dated November 9, 2007 by Defendants Andrew Thomas, Joseph M. Arpaio, Maricopa County Supervisors, Board of, Fulton Brock, Don Stapley, Andrew Kunasek, Max W Wilson, Mary Rose Wilcox. (Casey, Timothy) (Entered: 11/26/2007)
50 Notice re Defendants' Notice of Supplemental Authority in Support of Their Motion to Dismiss and the Response Required by the Court's Order Dated November 9, 2007 by Andrew Thomas, Joseph M. Arpaio, Maricopa County Supervisors, Board of, Fulton Brock, Don Stapley, Andrew Kunasek, Max W Wilson, Mary Rose Wilcox re 49 Response, (Attachments: # 1 Exhibit)(Casey, Timothy) (Entered: 07/17/2008)
51 ORDER that Pla's 46 Motion is granted in part, to the extent they are seeking a pre−trial conference, and denied in part, to the extent they are seeking "complex track" designation pursuant to LRCiv 16.2(b)(4); Pla shall file a supplemental brief within 15 days of the date of entry of this order addressing the impact, if any, of dfts' supplemental authority (doc. 50) upon the outstanding DeCanas issue. Signed by Judge Robert C Broomfield on 09/29/08. (ESL) (Entered: 10/03/2008)
52 SUPPLEMENT of Memorandum of Points and Authorities re: Preemption by Plaintiff We Are America/Somos America Coalition of ARizona. (Holguin, Carlos) (Entered: 10/14/2008)
53 ORDERED that defendants file and serve, within 10 days from the date of entry of this Order, a response to plaintiffs' supplemental memorandum as more fully described in the attached Order. Signed by Judge Robert C Broomfield on 11/10/08. (RCB)(.pdf document is attached) (Entered: 11/10/2008)
54 RESPONSE to Order 53 and Supplement Defendants' Supplemental Authority in Support of Their Motion to Dismiss and the Response Required by the Court's Order Dated November 10. 2008 by Andrew Thomas, Joseph M. Arpaio, Maricopa County Supervisors, Board of, Fulton Brock, Don Stapley, Andrew Kunasek, Max W Wilson, Mary Rose Wilcox. (Casey, Timothy) Modified on 11/21/2008 (TLJ). INCORRECT EVENT SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM MOTION TO RESPONSE. (Entered: 11/20/2008)
55 ORDER granting in its entirety dfts' 32 MOTION to Dismiss. Signed by Judge Robert C Broomfield on 1/12/2009. (LAD) (Entered: 01/13/2009)
56 CLERK'S JUDGMENT: IT IS THEREFORE ORDERED AND ADJUDGED that the Court having granted Defendants' Motion to Dismiss in its entirety, this action is hereby dismissed. (LAD) (Entered: 01/13/2009)

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 17 of 27

02/06/2009 02/09/2009
02/12/2009 02/17/2009 03/12/2009 03/13/2009
02/18/2010

57 NOTICE OF APPEAL to 9th Circuit, as to 56 Judgment and 55 Order by Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu. Filing fee received: $ 455.00, receipt number 09700000000002559154. (Attachments: # 1 Representation Statement)(Holguin, Carlos) Modified on 2/9/2009 TO ADD DOCUMENT LINKAGE (KMG). (Entered: 02/06/2009)
58 APPEAL PROCESSED to Ninth Circuit re: 57 Notice of Appeal,, filed by League of United Latin American Citizens Arizona, Friendly House, Steve Gallardo, Cecilia Menjivar, David Lujan, Juan Manuel Cortez Cuellar, Raul Vixtha Bomaye, LaDawn Haglund, Hugo Enrique Sanchez Diego, Adriana Rodriguez Espiritu, Rosa Flor Diaz Godines, Arizona Hispanic Community Forum, Javier Romero Encino, We Are America/Somos America Coalition of ARizona, Krysten Sinema. Filed dates for: Notice of Appeal *2/6/2009*, *Complaint* *11/21/2006*, Appealed Order *1/13/09*, Appealed Judgment *1/13/09*.** Fee Status: *Paid on 2/6/2009 in the amount of $455.00*. Hearing Dates of *NONE***********. Appellant Attorney: *Carlos Holguin* *(ret)* *crholguin@centerforhumanrights.org*. Appellee Attorney: *Timothy James Casey* *(ret)* *timcasey@azbarristers.com***. Copies sent to all parties and 9th Circuit. (Attachments: # 1 Certificate of Record) (KMG) (Entered: 02/09/2009)
59 TRANSCRIPT DESIGNATION AND ORDER FORM by Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu re 57 Notice of Appeal,, 58 Appeal Processed to USCA,,, (Holguin, Carlos) (Entered: 02/12/2009)
60 Ninth Circuit Case Number 09−15281 for 57 Notice of Appeal. (REW, ) (Entered: 02/17/2009)
61 AMENDED NOTICE OF APPEAL to 9th Circuit as to 43 ORDER, 55 ORDER 56 Clerk's Judgment by Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Krysten Sinema, Steve Gallardo, David Lujan, Cecilia Menjivar, LaDawn Haglund, We Are America/Somos America Coalition of ARizona, Arizona Hispanic Community Forum, League of United Latin American Citizens Arizona, Friendly House, Raul Vixtha Bomaye, Javier Romero Encino, Rosa Flor Diaz Godines, Adriana Rodriguez Espiritu. (Holguin, Carlos) Modified on 3/13/2009 TO ADD DOCUMENT LINKAGE TO 43, and 55 (DMT, ). (Entered: 03/12/2009)
62 APPEAL PROCESSED to Ninth Circuit re: 57 Amended Notice of Appeal,, filed by League of United Latin American Citizens Arizona, Friendly House, Steve Gallardo, Cecilia Menjivar, David Lujan, Juan Manuel Cortez Cuellar, Raul Vixtha Bomaye, LaDawn Haglund, Hugo Enrique Sanchez Diego, Adriana Rodriguez Espiritu, Rosa Flor Diaz Godines, Arizona Hispanic Community Forum, Javier Romero Encino, We Are America/Somos America Coalition of ARizona, Krysten Sinema. Filed dates for: Notice of Appeal *3/12/2009*, *Complaint* *11/21/2006*, Appealed Order *9/21/07, 1/13/09*, Appealed Judgment *1/13/09*. Court Reporter *None* Fee Status: *Paid on 2/6/2009 in the amount of $455.00*.************. Appellant Attorney: *Carlos Holguin* *(retained)* *crholguin@centerforhumanrights.org*. Appellee Attorney: *Dennis Ira Wilenchik* *(retained)* *diw@wb−law.com***. Copies sent to all parties and 9th Circuit. (Attachments: # 1 Certificate of Record) (DMT, ) (Entered: 03/13/2009)
63 ORDER of 9th Circuit: The parties are ordered to file supplemental briefs addressing certain questions. Defendants−appellees' brief shall be filed no later than 30 days from the filing of this order. Plaintiffs−appellants' brief shall be filed within 21 days thereafter. Defendants−appellees may file a reply brief within 14 days after the filing of plaintiffs−appellants' brief. Principal briefs may not exceed 10,000 words, and the optional reply brief may not exceed 5,000 words, appeal

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 18 of 27

07/20/2010 07/27/2010
08/05/2010 08/19/2010 11/08/2010 11/22/2010
12/16/2010 04/11/2011
04/20/2011

case number 09−15281, as to 57 Notice of Appeal and 61 Notice of Appeal − Amended. (DTN) (Entered: 02/18/2010)
64 MOTION to Substitute Attorney: for substitution of Bruce P. White, Anne C. Longo in place of Sally Wolfgang Wells, Timothy J. Casey, Dennis I. Wilenchik by Andrew Thomas. (Attachments: # 1 Text of Proposed Order)(White, Bruce) (Entered: 07/20/2010)
65 ORDER granting 64 Motion to Substitute Attorney. IT IS ORDERED pursuant to Local Rule 83.3 of the Federal Rules of CivilProcedure the Court grants Defendant Richard M. Romley's Motion for Substitution of Counsel. Bruce P. White and Anne C. Longo, Deputy County Attorneys, may be substituted in place and stead of the Deputy County Attorney Sally Wolfgang Wells, and Timothy J. Casey (Schmidt, Schneck, Smyth &Herrod, P.C.) and Dennis I. Wilenchik (Wilenchik &Bartness, P.C.) as attorneys for Defendant Richard M. Romley, Maricopa County Attorney, in the above−captioned action. Signed by Judge Robert C Broomfield on 7/25/10.(LAD) (Entered: 07/27/2010)
66 MANDATE of USCA (certified copy), affirming in part, reversing in part and remanding back to the District Court; on remand, the District court must still determine whether the organizational and taxpayer plaintiffs have standing to pursue their claims, re: 09−15821 57 , 61 Notices of Appeal (Attachments: # 1 Memorandum, # 2 NDA)(REW) (Entered: 08/05/2010)
67 ORDERED that any motions directed to the standing issue shall be filed no later than 11/8/10. Responsive memoranda, if any, as well as reply memoranda, if any, shall be filed and served and in all ways comply with the Rules of Practice of the United States District Court for the District Court of Arizona. Signed by Judge Robert C Broomfield on 8/19/10. (RCB)(.pdf document is attached) (Entered: 08/19/2010)
68 MOTION to Dismiss Case by Joseph M Arpaio, Andrew Kunasek, Maricopa County Board of Supervisors, Don Stapley, Andrew Thomas, Mary Rose Wilcox, Max W Wilson. (Attachments: # 1 Text of Proposed Order)(Casey, Timothy). Added MOTION to Dismiss for Lack of Jurisdiction on 11/9/2010 (LAD). (Entered: 11/08/2010)
69 RESPONSE to Motion re 68 MOTION to Dismiss Case MOTION to Dismiss for Lack of Jurisdiction, RESPONSE in Opposition re 68 MOTION to Dismiss Case MOTION to Dismiss for Lack of Jurisdiction filed by Arizona Hispanic Community Forum, Raul Vixtha Bomaye, Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Javier Romero Encino, Adriana Rodriguez Espiritu, Friendly House, Steve Gallardo, Rosa Flor Diaz Godines, LaDawn Haglund, League of United Latin American Citizens Arizona, David Lujan, Cecilia Menjivar, Krysten Sinema, We Are America/Somos America Coalition of Arizona. (Holguin, Carlos) (Entered: 11/22/2010)
70 NOTICE re of Name Change and Substitution of Maricopa County Attorney by Richard Romley. (White, Bruce) (Entered: 12/16/2010)
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) (Entered: 04/11/2011)
72 Joinder re 68 MOTION to Dismiss Case MOTION to Dismiss for Lack of Jurisdiction by William G Montgomery. (White, Bruce) Modified on 4/20/2011 (LAD). * Incorrect event selected. Docket text modified from Motion to Joinder. (Entered: 04/20/2011)

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 19 of 27

04/28/2011 04/28/2011 05/02/2011
08/18/2011
08/23/2011 08/23/2011 08/23/2011 08/23/2011 08/23/2011 09/01/2011 09/01/2011 09/19/2011 10/07/2011
10/12/2011

73 SUPPLEMENT of Brief RE: Mootness by Defendant William G Montgomery. (Longo, Anne) (Entered: 04/28/2011)
74 SUPPLEMENT of Brief re Mootness by Defendants Joseph M Arpaio, Fulton Brock, Andrew Kunasek, Maricopa County Board of Supervisors, Don Stapley, Mary Rose Wilcox, Max W Wilson. (Casey, Timothy) (Entered: 04/28/2011)
75 RESPONSE re 71 Order,,, re mootness by Plaintiffs Arizona Hispanic Community Forum, Friendly House, Steve Gallardo, LaDawn Haglund, League of United Latin American Citizens Arizona, David Lujan, Cecilia Menjivar, Krysten Sinema, We Are America/Somos America Coalition of Arizona. (Holguin, Carlos) (Entered: 05/02/2011)
76 ORDER that the motion by defendants 68 , in which Maricopa County Attorney, William G. Montgomery, joins 72 , to dismiss the claims of the plaintiffs We Are America/Somos America Coalition of Arizona; Arizona Hispanic Community Forum; Friendly House; Kyrsten Sinema; Steve Lujan; Cecilia Menjivar; an LaDawn Haglund is denied; but defendants' motion to dismiss 68 , in which Maricopa County Attorney, William G. Montgomery, joins 72 is granted as to plaintiffs League of United Latin American Citizens ("LULAC") and Steve Gallardo. Signed by Judge Robert C Broomfield on 8/17/11.(TLJ) (Entered: 08/18/2011)
77 ANSWER to 45 Amended Complaint by Joseph M Arpaio.(Casey, Timothy) (Entered: 08/23/2011)
78 ANSWER to 45 Amended Complaint by Andrew W Kunasek, Maricopa County Board of Supervisors, Don Stapley, Mary Rose Wilcox, Max W Wilson.(Casey, Timothy) (Entered: 08/23/2011)
79 MOTION for Hearing or Conference re: Rule 16 Scheduling Conference by Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, Don Stapley, Mary Rose Wilcox, Max W Wilson. (Attachments: # 1 Text of Proposed Order)(Casey, Timothy) (Entered: 08/23/2011)
80 NOTICE re Notice of Service of Defendant Maricopa County Board of Supervisors' First Set of Discovery to Plaintiffs by Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, Don Stapley, Mary Rose Wilcox, Max W Wilson. (Casey, Timothy) (Entered: 08/23/2011)
81 NOTICE re Notice of Service of Defendant Joseph M. Arpaio's First Set of Discovery to Plaintiffs by Joseph M Arpaio. (Casey, Timothy) (Entered: 08/23/2011)
82 NOTICE of Appearance by Laurence G Tinsley, Jr on behalf of William G Montgomery (Tinsley, Laurence) (Entered: 09/01/2011)
83 ANSWER to 45 Amended Complaint ANSWER OF DEFENDANT BILL MONTGOMERY TO PLAINTIFFS AMENDED COMPLAINT by William G Montgomery.(Tinsley, Laurence) (Entered: 09/01/2011)
84 ORDER SETTINT RULE 16 SCHEDULING CONFERENCE granting 79 Motion for Hearing. Scheduling Conference set for 10/17/2011 at 10:30 AM before Judge Robert C Broomfield. (See document for further details). Signed by Judge Robert C Broomfield on 9/19/11.(LAD) (Entered: 09/19/2011)
85 REPORT of Rule 26(f) Planning Meeting by Arizona Hispanic Community Forum, Joseph M Arpaio, Raul Vixtha Bomaye, Fulton Brock, Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Javier Romero Encino, Adriana Rodriguez Espiritu, Friendly House, Rosa Flor Diaz Godines, LaDawn Haglund, Andrew W Kunasek, David Lujan, Maricopa County Board of Supervisors, Cecilia Menjivar, William G Montgomery, Richard Romley, Krysten Sinema, Don Stapley, We Are America/Somos America Coalition of Arizona, Mary Rose Wilcox, Max W Wilson. (Holguin, Carlos) (Entered: 10/07/2011)
86 MOTION to Substitute Attorney DFENDANT WILLIAM MONTGOMERYS APPLICATION FOR SUBSTITUTION OF COUNSEL AND CLIENT CONSENT by William G Montgomery. (Attachments: # 1 Text of Proposed Order)(Tinsley,

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 20 of 27

10/13/2011 10/17/2011 10/17/2011
10/18/2011
10/21/2011 11/14/2011 11/16/2011 11/21/2011 11/23/2011 12/16/2011 12/16/2011 01/09/2012

Laurence) (Entered: 10/12/2011)
87 AMENDED MOTION to Substitute Attorney DFENDANT WILLIAM MONTGOMERYS AMENDED APPLICATION FOR SUBSTITUTION OF COUNSEL AND CLIENT CONSENT by William G Montgomery. (Attachments: # 1 Text of Proposed Order)(Tinsley, Laurence) (Entered: 10/13/2011)
88 NOTICE re of service of supplemental discovery by Arizona Hispanic Community Forum, Friendly House, Steve Gallardo, Rosa Flor Diaz Godines, LaDawn Haglund, David Lujan, Cecilia Menjivar, Krysten Sinema, We Are America/Somos America Coalition of Arizona . (Holguin, Carlos) (Entered: 10/17/2011)
89 Minute Entry. Proceedings held before Judge Robert C Broomfield. Appearances: Carlos Holguin for the plaintiffs. Timothy Casey for defendants. Scheduling Conference held on 10/17/2011. The Court and counsel discuss the proposed deadlines. Order to follow. The Court grants Amended Motion to Substitute Attorney at doc. 87. Order to follow.(ECRO Vicki Reger.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (VAR) (Entered: 10/18/2011)
90 ORDER granting 87 Motion to Substitute Attorney. Attorney Timothy J. Casey of the law firm of Schmitt Schneck Smyth Casey &Even, P.C. shall be substituted in place of Deputy County Attorneys Laurence G. Tinsley, Jr., Bruce White and Anne Longo, Civil Services Division, Office of the Maricopa County Attorney as counsel for Defendant Maricopa County Attorney William Montgomery. Signed by Judge Robert C Broomfield on 10/17/11.(DMT) (Entered: 10/18/2011)
91 RULE 16 SCHEDULING ORDER: Discovery due by 9/15/2012. Dispositive motions due by 10/1/2012. Proposed Pretrial Order due by 10/15/2012. Pretrial Conference set for 2/4/2013 at 10:30 AM before Judge Robert C Broomfield. Signed by Judge Robert C Broomfield on 10/21/11. (TLJ) (Entered: 10/21/2011)
92 STIPULATION to Extend Time for Parties to Respond to Discovery by Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, We Are America/Somos America Coalition of Arizona, Mary Rose Wilcox, Max W Wilson. (Attachments: # 1 Text of Proposed Order)(Casey, Timothy) (Entered: 11/14/2011)
93 ORDER pursuant to 92 Stipulation: IT IS HEREBY ORDERED granting an extension of time for the parties to respond to discovery requests until and including December 16, 2011. Signed by Judge Robert C Broomfield on 11/16/11. (LAD) (Entered: 11/16/2011)
94 NOTICE re Notice of Service of Defendants' Initial Disclosure Statement by Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, Mary Rose Wilcox, Max W Wilson . (Casey, Timothy) (Entered: 11/21/2011)
95 NOTICE re initial disclosure by Arizona Hispanic Community Forum, Friendly House, Steve Gallardo, LaDawn Haglund, David Lujan, Cecilia Menjivar, Krysten Sinema, We Are America/Somos America Coalition of Arizona re 91 Scheduling Order, . (Holguin, Carlos) (Entered: 11/23/2011)
96 NOTICE re Notice of Service of Defendants' Responses to Plaintiffs' First Request for Admission, Production of Documents and Interrogatories by Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, Don Stapley, Mary Rose Wilcox, Max W Wilson . (Casey, Timothy) (Entered: 12/16/2011)
97 NOTICE re Notice of Service of Defendants' Responses to Plaintiffs' Supplemental Request for Admissions, Production of Documents and Interrogatories by Joseph M Arpaio, Fulton Brock, Maricopa County Board of Supervisors, Don Stapley, Mary Rose Wilcox, Max W Wilson . (Casey, Timothy) (Entered: 12/16/2011)
98 NOTICE re Notice of Service of Defendant Montgomery's Responses to Plaintiffs' First Set of Discovery and Plaintiffs' Supplemental Request for Admissions, Production of Documents and Interrogatories by William G Montgomery . (Casey, Timothy) (Entered: 01/09/2012)

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 21 of 27

01/09/2012 01/09/2012 01/09/2012 01/09/2012 01/09/2012 01/09/2012 01/09/2012 04/30/2012 04/30/2012 05/01/2012
05/03/2012
05/03/2012 05/14/2012 06/18/2012

99 NOTICE re of Service of Response to Request for Production of Documents by Arizona Hispanic Community Forum re 81 Notice (Other) . (Holguin, Carlos) (Entered: 01/09/2012)
100 NOTICE re Service of Response to Interrogatories by Arizona Hispanic Community Forum re 81 Notice (Other) . (Holguin, Carlos) (Entered: 01/09/2012)
101 NOTICE re Service of Responses to Request for Production of Documents by LaDawn Haglund re 81 Notice (Other) . (Holguin, Carlos) (Entered: 01/09/2012)
102 NOTICE re Service of Answers to Interrogatories by LaDawn Haglund re 81 Notice (Other) . (Holguin, Carlos) (Entered: 01/09/2012)
103 NOTICE re Service of Response to Request for Admissions by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona re 80 Notice (Other), . (Holguin, Carlos) (Entered: 01/09/2012)
104 NOTICE re Service of Response to Request for Production of Documents by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona re 80 Notice (Other), . (Holguin, Carlos) (Entered: 01/09/2012)
105 NOTICE re Service of Respone to Interrogatories by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona re 80 Notice (Other), . (Holguin, Carlos) (Entered: 01/09/2012)
106 STIPULATION TO DISMISS PARTIES by Friendly House, Cecilia Menjivar, Krysten Sinema. (Attachments: # 1 Text of Proposed Order dismissing plaintiffs Friendly House, Menjivar, and Sinema)(Holguin, Carlos) (Entered: 04/30/2012)
107 NOTICE of Deposition of Joseph Arpaio, et al., filed by Arizona Hispanic Community Forum, Steve Gallardo, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Holguin, Carlos) (Entered: 04/30/2012)
108 STIPULATION to Extend Time for Depositions of Non−Expert Witnesses by Arizona Hispanic Community Forum, Joseph M Arpaio, Raul Vixtha Bomaye, Fulton Brock, Juan Manuel Cortez Cuellar, Hugo Enrique Sanchez Diego, Javier Romero Encino, Adriana Rodriguez Espiritu, Friendly House, Rosa Flor Diaz Godines, LaDawn Haglund, Andrew W Kunasek, David Lujan, Maricopa County Board of Supervisors, Cecilia Menjivar, William G Montgomery, Richard M Romley, Krysten Sinema, Don Stapley, We Are America/Somos America Coalition of Arizona, Mary Rose Wilcox, Max W Wilson. (Attachments: # 1 Text of Proposed Order)(Casey, Timothy) (Entered: 05/01/2012)
109 ORDER pursuant to 106 Stipulation: IT IS HEREBY ORDERED that the claims of plaintiffs Friendly House, Cecilia Menjivar, and Kyrsten Sinema be dismissed pursuant to Fed.R.Civ.Proc. 41(a)(1)(A)(ii) with prejudice; that Friendly House, Cecilia Menjivar, and Kyrsten Sinema be dismissed as parties to this action; each side to bear its own costs. Signed by Senior Judge Robert C Broomfield on 5/3/12. (LAD) (Entered: 05/03/2012)
110 ORDER granting 108 Stipulation: IT IS HEREBY ORDERED granting an extension of time for the parties to depose non−expert witnesses until and including June 30, 2012. Signed by Senior Judge Robert C Broomfield on 5/3/12. (LAD) (Entered: 05/03/2012)
111 NOTICE of Deposition of Joseph Arpaio, et al., filed by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Holguin, Carlos) (Entered: 05/14/2012)
112 NOTICE re Notice of Service of Defendant Arpaio's First Supplemental Responses to Plaintiffs' First Request for Production of Documents by Joseph M Arpaio . (Casey, Timothy) (Entered: 06/18/2012)

Case: 2:06-cv-2816 As of: 10/06/2015 03:26 PM MST 22 of 27

06/18/2012 06/18/2012
06/21/2012 07/30/2012 07/30/2012 08/22/2012 09/28/2012 09/28/2012 10/01/2012 10/01/2012 10/05/2012
10/16/2012

113 NOTICE re Notice of Service of Defendant Montgomery's First Supplemental Responses to Plaintiffs' First Set of Requests for Production of Documents by William G Montgomery . (Casey, Timothy) (Entered: 06/18/2012)
114 STIPULATION to extend time for depositions by Arizona Hispanic Community Forum, Joseph M Arpaio, Fulton Brock, Steve Gallardo, LaDawn Haglund, Andrew W Kunasek, David Lujan, Maricopa County Board of Supervisors, William G Montgomery, Richard M Romley, Don Stapley, We Are America/Somos America Coalition of Arizona, Mary Rose Wilcox, Max W Wilson. (Attachments: # 1 Text of Proposed Order)(Holguin, Carlos) (Entered: 06/18/2012)
115 ORDER granting 114 Stipulation: IT IS HEREBY ORDERED granting an extension of time for the parties to depose non−expert witnesses until and including August 31, 2012, and for the filing of dispositive motions until and including October 1, 2012. Signed by Senior Judge Robert C Broomfield on 6/20/12. (LAD) (Entered: 06/21/2012)
116 NOTICE of Deposition of Sharon Zapata, filed by Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, Mary Rose Wilcox, Max W Wilson. (Casey, Timothy) (Entered: 07/30/2012)
117 NOTICE of Deposition of LaDawn Haglund, filed by Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, Mary Rose Wilcox, Max W Wilson. (Casey, Timothy) (Entered: 07/30/2012)
118 NOTICE of Deposition of Lydia Guzman, filed by Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, Mary Rose Wilcox, Max W Wilson. (Casey, Timothy) (Entered: 08/22/2012)
119 MOTION for Summary Judgment by Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, Mary Rose Wilcox, Max W Wilson. (Attachments: # 1 Text of Proposed Order)(Casey, Timothy) (Entered: 09/28/2012)
120 STATEMENT of Facts re 119 MOTION for Summary Judgment by Defendants Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, Mary Rose Wilcox, Max W Wilson. (Attachments: # 1 Exhibit)(Casey, Timothy) (Entered: 09/28/2012)
121 First MOTION for Summary Judgment by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Attachments: # 1 Statement of Facts, # 2 Exhibit Plaintiffs' Exhibits)(Holguin, Carlos) (Entered: 10/01/2012)
122 Second MOTION to Certify Class by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Attachments: # 1 Text of Proposed Order Certifying Class)(Holguin, Carlos) (Entered: 10/01/2012)
123 *ADDITIONAL ATTACHMENT TO MAIN DOCUMENT re Proposed Order Granting Summary Judgment, etc. re: 121 First MOTION for Summary Judgment . Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Holguin, Carlos) *Modified to correct event type on 10/9/2012 (TLJ). (Entered: 10/05/2012)
124 STIPULATION The Parties' Stipulation To Extend Time For Defendants To Respond To Plaintiffs' Motion For Class Certification by Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, Mary Rose Wilcox, Max W Wilson. (Attachments: # 1 Text of Proposed Order [Proposed] Order Re The Parties' Stipulation To Extend Time For Defendants To Respond To Plaintiffs' Motion For Class Certification)(Casey, Timothy) (Entered: 10/16/2012)

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10/18/2012 10/29/2012
10/30/2012 10/30/2012 10/30/2012
10/31/2012 11/01/2012
11/19/2012 11/19/2012 11/19/2012 01/25/2013 05/20/2013

125 ORDER that Defendants shall have until, and including, 10/30/12, to file their Response to Plaintiffs' Motion for Class Certification 122 re Stipulation 124 . Signed by Senior Judge Robert C Broomfield on 10/18/12. (TLJ) (Entered: 10/18/2012)
126 RESPONSE to Motion re 119 MOTION for Summary Judgment filed by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Attachments: # 1 Statement of Facts, # 2 Exhibit Supplemental Exhibits Re: Cross−motions for Summary Judgment pt1, # 3 Exhibit Supplemental Exhibits Re: Cross−motions for Summary Judgment pt2)(Holguin, Carlos) (Entered: 10/29/2012)
127 RESPONSE in Opposition re 122 Second MOTION to Certify Class filed by Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, Mary Rose Wilcox, Max W Wilson. (Casey, Timothy) (Entered: 10/30/2012)
128 RESPONSE to Motion re 121 First MOTION for Summary Judgment filed by Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, Mary Rose Wilcox, Max W Wilson. (Casey, Timothy) (Entered: 10/30/2012)
129 *RESPONSE of Defendants' Response to Plaintiffs' Statement of Facts and Controverting Statement of Facts re 121 First MOTION for Summary Judgment by Defendants Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, Mary Rose Wilcox, Max W Wilson. (Casey, Timothy) *Modified to correct event type on 10/30/2012 (TLJ). (Entered: 10/30/2012)
130 STIPULATION re 119 MOTION for Summary Judgment , 122 Second MOTION to Certify Class , 121 First MOTION for Summary Judgment by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Attachments: # 1 Text of Proposed Order)(Holguin, Carlos) (Entered: 10/31/2012)
131 ORDER ON STIPULATION TO ENLARGE TIME TO FILE REPLY BRIEFS RE: CROSS−MOTIONS FOR SUMMARY JUDGMENT AND CLASS CERTIFICATION that the parties shall have until, and including, 11/19/12, to serve and file their reply briefs on their pending cross−motions for summary judgment 119 and 121 and plaintiffs' motion for class certification 122 . Signed by Senior Judge Robert C Broomfield on 11/1/12. (TLJ) (Entered: 11/01/2012)
132 REPLY to Response to Motion re 119 MOTION for Summary Judgment filed by Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, Mary Rose Wilcox, Max W Wilson. (Casey, Timothy) (Entered: 11/19/2012)
133 REPLY to Response to Motion re 122 Second MOTION to Certify Class filed by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Holguin, Carlos) (Entered: 11/19/2012)
134 REPLY to Response to Motion re 121 First MOTION for Summary Judgment filed by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Holguin, Carlos) (Entered: 11/19/2012)
135 ORDER − Dispositive motions having been filed, IT IS HEREBY ORDERED vacating the Pretrial Conference set 2/4/13, to be reset, if necessary, after the Court's ruling on the pending motions. Signed by Senior Judge Robert C Broomfield on 1/25/13. (LAD) (Entered: 01/25/2013)
136 NOTICE re motions pending 180 days (LR 7.2(l)) by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona re 122 Second MOTION to Certify Class , 121 First MOTION for Summary Judgment . (Holguin, Carlos) (Entered: 05/20/2013)

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09/27/2013
10/04/2013
10/15/2013 10/18/2013 10/18/2013 10/21/2013 10/21/2013 10/21/2013

137 ORDER: Defendants' Motion for Summary Judgment 119 is DENIED; Plaintiffs' Motion for Summary Judgment 121 is GRANTED as to their first claim ("Federal Preemption"); Plaintiffs' second claim for relief ("Unlawful Search and Seizure; violation of 42 U.S.C. § 1983"), third claim for relief (Denial of Due Process; violation of 42 U.S.C. § 1983"); and fourth claim for relief ("Pendent State Claim: Violation of Ariz. Rev. Stat. §§ 13−2319 and 13−1003") are DISMISSED WITH PREJUDICE pursuant to Fed.R.Civ.P. 41(a)(2); Plaintiffs' Motion for Class Certification pursuant to Fed.R.Civ. 23(b)(2) 122 is GRANTED in part and DENIED in part. The court certifies a class defined as: "All individuals who pay taxes to Maricopa County and object to the use of county tax revenues to stop, detain, arrest, incarcerate, prosecute, or penalize individuals for conspiring to transport themselves, and themselves only, in violation of Ariz. Rev. Stat. § 13−2319." FURTHER ORDERED that Carlos Holguin and Peter A. Schey of the Center for Human Rights and Constitutional Law are appointed as lead class counsel. Plaintiffs are entitled to a declaration that federal law preempts and renders invalid the Maricopa County Migrant Policy. Defendants Maricopa County Sheriff Joseph M. Arpaio and Maricopa County Attorney William G. Montgomery, and their agents, employees, successors in office, and all other persons who are in active concert or participation with the Maricopa County Sheriff's Office and the Maricopa County Attorney's Office, are permanently enjoined from further implementing the Maricopa Migrant Conspiracy Policy including detaining, arresting, and prosecuting persons for conspiring to transport themselves, and no one else, in violation of Ariz. Rev. Stat. § 13−2319. See Order for further details. Signed by Senior Judge Robert C Broomfield on 9/27/13.(SJF) (Entered: 09/27/2013)
138 CLERK'S JUDGMENT − Pursuant to the Court's order, Plaintiffs are entitled to a declaration that federal law preempts and renders invalid the Maricopa County Migrant Policy. Defendants Maricopa County Sheriff Joseph M. Arpaio and Maricopa County Attorney William G. Montgomery, and their agents, employees, successors in office, and all other persons who are in active concert or participation with the Maricopa County Sheriff's Office and the Maricopa County Attorney's Office, are permanently enjoined from further implementing the Maricopa Migrant Conspiracy Policy including detaining, arresting, and prosecuting persons for conspiring to transport themselves, and no one else, in violation of Ariz. Rev. Stat. § 13−2319. Pursuant to the Order filed Septembe r 27, 2013, the court shall retain continuing jurisdiction to enforce the terms of the Order and Permanent Injunction. This matter is hereby dismissed. (LAD) (Entered: 10/04/2013)
139 STIPULATION by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Attachments: # 1 Text of Proposed Order extending time to move for attorney's fees and costs)(Holguin, Carlos) (Entered: 10/15/2013)
140 BILL OF COSTS by We Are America/Somos America Coalition of Arizona. (Holguin, Carlos) (Entered: 10/18/2013)
141 ** WITHDRAWN PER DOCUMENT 166 ** First MOTION for Attorney Fees by We Are America/Somos America Coalition of Arizona. (Holguin, Carlos) Modified on 9/11/2014 (LAD). (Entered: 10/18/2013)
142 ORDER pursuant to 139 Stipulation. ORDERED that plaintiffs shall have until and including 10/29/2013 to serve and file their motion for attorney's fees and statement of costs. Signed by Senior Judge Robert C Broomfield on 10/21/2013. (TLB) (Entered: 10/21/2013)
143 RESPONSE in Opposition re 141 First MOTION for Attorney Fees filed by Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, Mary Rose Wilcox, Max W Wilson. (Casey, Timothy) (Entered: 10/21/2013)
144 RESPONSE re 140 Bill of Costs by Defendants Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, Mary Rose Wilcox, Max W Wilson. (Casey, Timothy) (Entered: 10/21/2013)

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10/22/2013 10/25/2013
10/29/2013 11/04/2013 11/04/2013
11/05/2013 11/05/2013 12/02/2013
12/03/2013 01/30/2014
02/03/2014 02/20/2014 04/02/2014 04/07/2014

145 MOTION for Clarification re 137 Order by William G Montgomery. (Attachments: # 1 Text of Proposed Order)(Casey, Timothy) (Entered: 10/22/2013)
146 * NOTICE OF APPEAL to 9th Circuit Court of Appeals re: 137 Order on Motion for Summary Judgment, Order on Motion to Certify Class and Judgment 138 by Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, Mary Rose Wilcox, Max W Wilson. Filing fee received: $ 455.00, receipt number 0970−9761871. (Attachments: # 1 Representation Statement)(Casey, Timothy) * Modified to add additional document linkage on 10/28/2013 (LAD). (Entered: 10/25/2013)
147 USCA Case Number re: 146 Notice of Appeal. Case number 13−17193, Ninth Circuit. (copies sent by the Ninth Circuit) (REW) (Entered: 10/29/2013)
148 RESPONSE in Opposition re 145 MOTION for Clarification re 137 Order, 121 First MOTION for Summary Judgment filed by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Schey, Peter) (Entered: 11/04/2013)
149 * NOTICE OF CROSS APPEAL to 9th Circuit Court of Appeals re: 137 Order and 138 Clerks Judgment by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. Filing fee $ 455.00, receipt number 0970−9792881. (Attachments: # 1 Representation Statement)(Schey, Peter) * Modified to add document linkage to order 137 on 11/5/2013 (LAD). (Entered: 11/04/2013)
150 Taxation Judgment in amount of $ 2,228.12 against defendants. Signed by Chief Deputy Clerk Michael O'Brien on 11/5/13. (CSL) (Entered: 11/05/2013)
151 USCA Case Number re: 149 Notice of Cross Appeal. Ninth Circuit Case Number 13−17264. (LFIG) (Entered: 11/05/2013)
152 STIPULATION RE: 141 First MOTION for Attorney Fees extending time to file supporting memorandum and documentation by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Attachments: # 1 Text of Proposed Order extending time)(Holguin, Carlos) (Entered: 12/02/2013)
153 ORDER pursuant to 152 Stipulation. ORDERED that plaintiff shall have until, and including, 2/3/2014, to serve and file a memorandum and documentation in support of their motion for attorney's fees and non−taxable costs (Doc. 141 ). Signed by Senior Judge Robert C Broomfield on 12/3/2013. (TLB) (Entered: 12/03/2013)
154 STIPULATION re: 141 First MOTION for Attorney Fees enlarging time to file documents supporting fee award by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Attachments: # 1 Text of Proposed Order enlarging time to file documents supporting fees award)(Holguin, Carlos) (Entered: 01/30/2014)
155 ORDER pursuant to 154 Stipulation, ORDERED that plaintiff shall have until and including 4/7/2014 to serve and file memorandum and documentation in support of their Motion for Attorney's Fees and Non−Taxable Costs (Doc. 141 ). Signed by Senior Judge Robert C Broomfield on 2/3/2014. (TLB) (Entered: 02/03/2014)
156 SATISFACTION OF JUDGMENT by We Are America/Somos America Coalition of Arizona. (Holguin, Carlos) (Entered: 02/20/2014)
157 STIPULATION re: 141 First MOTION for Attorney Fees extending time by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Attachments: # 1 Text of Proposed Order)(Holguin, Carlos) (Entered: 04/02/2014)
158 ORDER pursuant to 157 Stipulation. Plaintiff shall have until, and including, 6/9/2014, to serve and file a memorandum and documentation in support of their motion for attorney's fees and non−taxable costs (Doc. No. 141). Signed by Senior Judge Robert C Broomfield on 4/5/2014. (TLB) Modified on 4/8/2014 to correct typographical errors (TLB). (Entered: 04/07/2014)

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06/05/2014 06/06/2014 07/02/2014
07/21/2014 07/22/2014 08/22/2014 08/25/2014 09/11/2014 09/15/2014 10/21/2014
11/04/2014 11/04/2014

159 STIPULATION re: 141 First MOTION for Attorney Fees by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Attachments: # 1 Text of Proposed Order extending time to file memorandum supporting motion for attorney's fees, etc.)(Holguin, Carlos) (Entered: 06/05/2014)
160 ORDER granting 159 Stipulation: Plaintiffs shall have until 7/28/2014 to serve and file a memorandum and documentation in support of their motion for attorney's fees. See attached order. Signed by Senior Judge Stephen M McNamee on 6/6/2014. (LMR) (Entered: 06/06/2014)
161 Minute Order: NOTICE OF REASSIGNMENT. This matter is reassigned to Judge Diane J Humetewa for all further proceedings. All documents filed in this action should bear the initials DJH as part of the complete case number (see revised case number above). All pending deadlines and hearings are AFFIRMED unless reset by separate order. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (KAR) (Entered: 07/02/2014)
162 STIPULATION re: 141 First MOTION for Attorney Fees enlarging time to file memo, etc., re: attorney's fees by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Attachments: # 1 Text of Proposed Order enlarging time to file memo, etc., re: attorney's fees)(Holguin, Carlos) (Entered: 07/21/2014)
163 ORDER granting 162 Stipulation. Plaintiffs shall have until, and including, 8/25/2014 to serve and file a memorandum and documentation in support of their motion for attorney's fees and non−taxable costs 141 . Signed by Judge Diane J Humetewa on 7/22/2014. (VPB) (Entered: 07/22/2014)
164 STIPULATION re: 141 First MOTION for Attorney Fees extending time to file brief, etc. by Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Attachments: # 1 Text of Proposed Order extending time to file brief, etc.)(Holguin, Carlos) (Entered: 08/22/2014)
165 ORDER granting 164 Stipulation. Plaintiffs shall have until, and including, 9/15/2014, to serve and file a memorandum and documentation in support of their motion for attorney's fees and non−taxable costs 141 . Signed by Judge Diane J Humetewa on 8/25/2014. (VPB) (Entered: 08/25/2014)
166 WITHDRAWAL OF DOCUMENT re: 141 First MOTION for Attorney Fees by Plaintiffs Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Holguin, Carlos) (Entered: 09/11/2014)
167 MANDATE of USCA: Pursuant to the stipulation of the parties, these appeals are voluntarily dismissed re: 13−17193, 13−17264 149 Notice of Cross Appeal, 146 Notice of Appeal. (Attachments: # 1 NDA) (Copies sent by Ninth Circuit)(ALS) (Entered: 09/15/2014)
168 ORDER: On August 22, 2014, the parties advised the Court that they would be dismissing this action upon Defendants' formal execution of the settlement (Doc. 164). To date, no such stipulation has been provided, and the mandate has issued from the Ninth Circuit Court of Appeals. Therefore, within fourteen (14) days from the date of this entry IT IS HEREBY ORDERED that the parties shall submit a stipulation to voluntarily dismiss this action in its entirety. SO ORDERED by Judge Diane J Humetewa on 10/20/2014. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (VPB) (Entered: 10/21/2014)
169 STATEMENT of plaintiffs re: 168 Order in lieu of stipulation of dismissal by Plaintiffs Arizona Hispanic Community Forum, LaDawn Haglund, David Lujan, We Are America/Somos America Coalition of Arizona. (Holguin, Carlos) (Entered: 11/04/2014)
170 NOTICE re: Notice of Agreement by Joseph M Arpaio, Fulton Brock, Andrew W Kunasek, Maricopa County Board of Supervisors, William G Montgomery, Don Stapley, Mary Rose Wilcox, Max W Wilson re: 169 Statement . (Casey, Timothy) (Entered: 11/04/2014)

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11/05/2014

171 ORDER denying as moot 145 Defendant William Montgomery's Motion for Clarification. Signed by Judge Diane J Humetewa on 11/5/2014.(VPB) (Entered: 11/05/2014)

 
 PRESS STATEMENT
MARICOPA COUNTY IMMIGRANT CRIMINAL CONSPIRACY POLICY SUBJECT TO FEDERAL COURT CHALLENGE

Embargo for release to November 22, 2006 2 PM PST, 11AM MST, 10 AM PST Press Conference: Wednesday, November 22, 2006, 11 AM Location: Senate Lawn, 1700 W. Washington Phoenix 85007

Contacts:

Roberto Reveles (We Are America Coalition/Arizona) (480) 983-8611 Marianne Gunko (Friendly House) (602) 257-1870, ext. 230 Peter Schey, Esq. (Center for Human Rights & Constitutional Law) (323) 251-3223
Ray Velarde, Esq. (LULAC) (915) 373-6003.

A coalition of organizations in Maricopa County, joined by several State Representatives and other Arizona taxpayers, and a group of immigrants facing felony charges for “conspiring” to have themselves transported through Maricopa County, today announced the filing of a federal class action challenge to the controversial migrant conspiracy policy.
Plaintiffs in the lawsuit include We Are America/Somos America Coalition of Arizona, Arizona Hispanic Community Forum, League of United Latin American Citizens, Friendly House, Arizona State Representatives Kyrsten Sinema, Steve Gallardo, and Steve Lujan, Arizona State University Associate Professors Cecilia Menjivar and LaDawn Haglund, and six immigrants charged with felony conspiracy under the Maricopa County policy.
The lawsuit is brought as a class action on behalf of “all individuals stopped, detained, arrested, incarcerated, prosecuted, or penalized for conspiring to transport themselves” in Maricopa County.
Maricopa County is the only local government in the United States to initiate a program to charge all suspected undocumented migrants being transported through the county with felony crimes. To date, over 300 immigrants have been arrested, jailed, and charged under the policy. According to the lawsuit, most plead guilty in order to avoid lengthy stays in Maricopa’s notoriously harsh jails.
In March 2006 Maricopa County started to arrest large numbers of suspected undocumented immigrants and charging them with conspiracy to transport themselves with the aid of a smuggler. County officials base their policy on a State anti-coyote law passed in 2005 that makes it a crime to smuggle undocumented immigrants for gain in Arizona. However, legislators who proposed and supported the state law, have publicly criticized the Maricopa County policy saying they never intended it to be used against migrants being smuggled.
The Maricopa County policy is one of hundreds of local initiatives that have recently

Maricopa County Conspiracy Lawsuit Page 2.
been enacted in response to what local officials see as a failure of the Congress to adequately grapple with national immigration reform. Defenders of immigrant communities view the Maricopa County policy as the harshest and most discriminatory measure initiated in the country.
The plaintiffs are represented by a team of lawyers, including three firms based in Phoenix, the Center for Human Rights and Constitutional Law based in Los Angeles, California, and the LULAC National Legal Advisor based in El Paso, Texas.
Roberto Reveles, Executive Director of the We Are America Coalition of Arizona, issued the following statement: “The legality of the Maricopa County conspiracy policy should be ruled upon by the federal courts before more lives are destroyed, people needlessly jailed for months at a time, and tax-payers billed for a program that may be unconstitutional and has no measurable impact on the immigration crisis.”
Rosa Rosales, National President of LULAC, issued the following statement: “As the oldest and largest Hispanic civil rights organization in the country, we are appalled at the short-term political gains certain Maricopa County officials have sought to make by charging immigrants with serious felonies. The vast majority of these immigrants come to the United States to satisfy the demand for labor here and to join their families. They are hard working and in no way a threat to national security. Treating them like serious criminals is not only irrational, it is shameful and disgraceful.”
Peter Schey, President of the Center for Human Rights and Constitutional Law and counsel for the plaintiffs, issued the following statement on behalf of the plaintiffs: “Instead of participating in the on-going national debate over immigration reform, as many other counties are doing, Maricopa County has spoken with a voice of intolerance and divisiveness. It has all but shut itself out of the national debate. The Maricopa County policy is a far more serious violation of the law than anything the jailed migrants have engaged in. It appears to be a conspiracy to violate the federal constitution and laws, unwittingly underwritten by Arizona taxpayers. We have little doubt that in the end the policy will be declared illegal and enjoined from further implementation by the federal courts. If that is the outcome, the Arizona taxpayers may then face hundreds of lawsuits for false arrest and imprisonment. Maricopa County would be well advised to at least temporarily suspend its policy while the courts decide its legality. That would be the prudent course for the county to adopt in light of the serious claims raised in this litigation.”
Marianna Gonko, Immigration Director of Friendly House, a Phoenix non-profit serving low-income families, issued the following statement: “The Maricopa County conspiracy policy not only has a devastating impact on the lives of immigrants, it also forces nonprofit organizations to divert their limited resources to serving this jailed population. The migrants we have interviewed in jail wanted nothing more than to come to this country to engage in hard work, to support their families, and to be reunited with their families. Keeping them in jail for many months and charging them with serious felonies does absolutely nothing to address the underlying causes of undocumented migration.”
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