We Are America v. Maricopa Cnty. Bd. of Supervisors

Decision Date18 August 2011
Docket NumberNo. CIV–06–2816–PHX–RCB.,CIV–06–2816–PHX–RCB.
Citation809 F.Supp.2d 1084
CourtU.S. District Court — District of Arizona


Antonio D. Bustamante, Law Office of Antonio D. Bustamante PC, Danilo Ballecer, Ballecer & Segal LLP, H. Michael Clyde, Perkins Coie LLP, Phoenix, AZ, Carlos Holguin, Peter Anthony Schey, Los Angeles, CA, Ray Velarde, Law Office of Ray Velarde, El Paso, TX, for Plaintiff.

Dennis Ira Wilenchik, Wilenchik & Bartness PC, Timothy James Casey, Schmitt Schneck Smyth & Herrod PC, Anne Cecile Longo, Sally Wolfgang Wells, Bruce P. White, Phoenix, AZ, for Defendant.


ROBERT C. BROOMFIELD, Senior District Judge.


This lawsuit challenges the constitutionality of the so-called “Maricopa Migrant Conspiracy Policy” (“MMCP” or “the Policy”). Am. Compl. (Doc. 45) at 3:9–10, ¶ 1. Pursuant to that Policy, allegedly “non-smuggler migrants” are “arrest[ed], detain[ed], and punish[ed] ... for conspiring to transport themselves through Maricopa County[ ] in violation of Ariz.Rev.Stat. § 13–2319, Arizona's human smuggling statute.1 Id. at 3:8–9, ¶ 1. Originally, in this putative class action, the plaintiffs were six Mexican nationals who had been arrested, detained, and charged with conspiracy to violate section 13–2319; four community-based organizations and five individual taxpayers. The defendants included Andrew Thomas, at the time, the Maricopa County Attorney. Thomas allegedly “devised” the MMCP and “persuaded” Joseph Arpaio, Maricopa County Sheriff, another defendant, “to implement” the “detention and arrests aspects of [that] [P]olicy.” Id. at 10:1, ¶ 18; and at 10:1–2, ¶ 18. The remaining defendants are the Maricopa County Board of Supervisors, and the individual members of that Board, Fulton Brock; Don Stapley; Andrew Kunasek; Max Wilson; and Mary Rose Wilcox (“collectively the Board”), sued in their official capacities only. See id. at 9, ¶¶ 16 and 17.

Assuming familiarity with the protracted history of this litigation, a few aspects bear mentioning to place defendants' pending motion to dismiss in context. 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 II ”), finding that “all four elements necessary for Younger abstention [we]re present[,] the court granted defendants' motion to dismiss on that basis. Id. at 1116 (citation omitted). While affirming this court's “determination that it lacked jurisdiction under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), to consider the claims of the six” Mexican national plaintiffs, the Ninth Circuit disagreed “that Younger abstention barred [this court] from considering the ... claims” of the organizational and taxpayer plaintiffs. We Are America/Somos America Coalition of Arizona v. Maricopa Co. Bd. of Supervisors, 386 Fed.Appx. 726, 727 (9th Cir.2010) (“ We Are America III ”) (citation omitted). Hence, the Ninth Circuit instructed this court on remand to “determine whether the organizational and taxpayer plaintiffs have standing to pursue their claims.” Id.

Thereafter, the Board and defendant Arpaio filed the pending motion to dismiss for lack of standing the claims of those two groups of plaintiffs. See Mot. (Doc. 68). Defendant William G. Montgomery, the current Maricopa County Attorney, expressly joins in that motion. Joinder (Doc. 72). Regardless of which group of plaintiffs the defense motion is addressing, the essence of their dismissal argument is the same; that is, the allegations by both are too broad and generalized to satisfy the injury in fact element of Article III standing. Plaintiffs, on the other hand, maintain that they have sufficiently alleged injury, and case law does not support the specificity which defendants are demanding herein.


The complaint asserts four separate claims. First, plaintiffs contend that the United States Constitution and the Immigration and Nationality Act preempt the MMCP. Second, allegedly the MMCP “violates the Fourteenth Amendment's protection against unreasonable searches and seizures [.] Am. Compl. (Doc. 45) at 26:27–28, ¶ 56. Third, allegedly the MMCP also denies plaintiffs and their class members due process of law under the Fourteenth Amendment by: (a) “failing to provide fair 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 [sic] [;] and (c) permitting and facilitating plaintiffs' and class members' removal from the United States before they can defend against defendants' conspiracy criminal charges.” Id. at 27:27–28:7, ¶¶ 58(a)–58(c). Fourth, plaintiffs assert a pendent state claim, alleging that the MMCP “conflicts with and is not authorized by” Arizona's human smuggling and conspiracy statutes, “which were not intended to and do not impose criminal penalties against migrants transported by smugglers for gain.” Id. at 28:13–16, ¶ 60.

Mirroring those substantive claims, plaintiffs are seeking, inter alia, a declaration “that the [MMCP] ... (a) constitutes an unconstitutional program of state regulation of international migration; (b) actually conflicts with the federal government's regulation of international migration; (c) violates plaintiffs' rights under the Fourth and Fourteenth Amendments to freedom from unreasonable searches and seizures; (d) violates plaintiffs' rights under the Fifth and Fourteenth Amendments to due process of law; and (e) is inconsistent with and violative of Ariz.Rev.Stat. §§ 13–2319 and 13–1003 2 [.] Id. at 28:25–29:9, ¶ 3 (footnote added). Plaintiffs also are seeking to preliminarily and permanently “restrain defendants, their agents, employees, and successors in office from further implementing the [MMCP], but only to the extent such injunctive relief does not interfere with state proceedings that were underway before initiation of this case or otherwise require abstention under Younger [.] Id. at 29:11–16, ¶ 4.

I. Mootness

Before addressing the merits of the parties' respective standing arguments, the court must address the issue of mootness. Partially due to the election in November, 2010 of a new Maricopa County Attorney, and partially because it had been roughly three and a half years since the filing of the amended complaint, 3 the court ordered supplemental briefing on that issue.

Because [u]nder Arizona law, the Board is neither charged with the legal authority to enforce the Arizona Criminal Code, including A.R.S. § 13–2319, ... nor with the authority and duty to make prosecutorial decisions as to whom to charge and what charges to actually prosecute against individual suspects[,] it is taking “no position” as to whether this action is moot. Supp. Br. (Doc. 74) at 1:23–28, ¶ 1.

On the other hand, defendant Joseph Arpaio, “in his official capacity as the duly elected Sheriff of Maricopa County, is charged with the legal authority and duty to enforce the Arizona Criminal Code, including A.R.S. § 13–2319[.] Id. at 2:1–3, ¶ 2 (emphasis added). What is more, defendant Arpaio avows that he “will continue” to enforce that statute “when probable cause exists for arresting persons engaged in human smuggling.” Id. at 2:4–5, ¶ 2. Acknowledging that he “lacks the legal authority and duty to make prosecutorial decisions as to whom to charge and what charges to actually prosecute against individual suspects,” Arpaio nonetheless “submits that this case does not appear to be moot.” Id. at 2:5–7, ¶ 2. More importantly, “from his communications with ... counsel for Defendant Montgomery,” Arpaio's counsel indicates that it is his “understand[ing][ ] ..., that the prosecution policy of the Maricopa County Attorney's Office regarding the potential for charging persons with conspiracy to violate A.R.S. § 13–2319 remains the same as on the date when Plaintiffs filed their suit.” Id. at 2:8–12, ¶ 3.

Defendant Montgomery's supplemental brief readily dispels any doubt as to whether this action has become moot. In his capacity as Maricopa County Attorney, Montgomery advises that his “enforcement policy has not changed from the previous County Attorney Defendants [sic].” Supp. Br. (Doc. 73) at 2:8–9, ¶ 3 (emphasis added). Therefore, defendant Montgomery unequivocally declares “that this matter is not moot.” Id. 2:10 ¶ 4. Plaintiffs agree. See Resp. (Doc. 75) at 4:1–2 ([D]efendants admit they continue to pursue the challenged policy and correctly affirm that this matter is not moot.”) Accordingly, despite the election of a new County attorney and the passage of time, undoubtedly this action is not moot. Thus, the court will proceed to the merits....

II. Article III Standing

Arguing that neither the organizations nor the taxpayers have standing, defendants are moving for dismissal of the complaint based upon Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Mot. (Doc. 68) at 1:23. The former Rule and not the latter is the proper procedural vehicle for this motion, however. Article III standing is a species of subject matter jurisdiction.” Cariajano v. Occidental Petroleum Corp., 626 F.3d 1137, 1143 (9th Cir.2010) (citation omitted). Thus, [b]ecause standing ... pertain [s] to federal court's subject matter jurisdiction,” that issue is “properly raised in a Rule 12(b)(1) motion to dismiss[,] Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir.2010), not in a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000) (citations omitted). Accordingly, the court deems defendants' motion to be brought solely pursuant to Rule 12(b)(1).

A jurisdictional attack under that Rule can be either facial or factual. Id. (citation omitted). Here, defendants are facially attacking the complaint due to lack of standing,4 i.e., “assert[ing] that the allegations [...

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