Note: Please see updates below.
One day after being formally charged with criminal contempt of federal Judge G. Murray Snow's orders in the civil-rights case Melendres v. Arpaio, Sheriff Joe Arpaio's new Washington, D.C.-based lawyers are asking Snow to recuse himself because — get this — Snow regularly communicates with the monitor he appointed to help ensure the sheriff's compliance with his orders.
That's the legal argument offered by attorneys for the D.C. firm Cooper & Kirk, PLLC, in motions filed Wednesday, demanding that Snow remove himself from Melendres and that monitor Robert Warshaw be ousted from his post because of what the motions refer to as improper ex parte conversations between Warshaw and Snow.
The firm's lead counsel, Charles J. Cooper — a Republican attorney perhaps best known for defending California's gay-marriage ban before the U.S. Supreme Court — also is seeking to have the court turn over the content of all communications between Snow and Warshaw.
Late Wednesday, the Maricopa County Sheriff's Office released a statement about the legal maneuver, quoting Cooper as saying the following:
"We fully understand and acknowledge the gravity of moving for recusal of a sitting judge. Nevertheless, both the facts of this case and the governing law make clear that Judge Snow and his Monitor may not continue to preside over the Melendres litigation."
Cooper concedes in his motion that Snow has been open about having one-on-one discussions with his monitor since Warshaw was hired in 2014 but insists that it is improper. The attorney cites an instance from a 2015 hearing when Snow overruled an objection from Arpaio's counsel on the issue. Snow stated at the time that such conversations were necessary for the court to supervise the monitor, saying, "I don't know how to do that without having some communication with the monitor."
Cooper also quotes numerous occasions when Snow characterized the monitor as "an arm and agent of the court" who acts with the complete authority of the court.
Indeed, Warshaw heads a team of monitors whose duty is to oversee the implementation of Snow's litany of reforms for the MCSO, issued in 2013 in the wake of the judge's ruling in Melendres that Arpaio and his law-enforcement agency were guilty of widespread racial profiling of Latinos in Maricopa County.
This is not the first bid Arpaio's attorneys have made to have Snow recuse himself from the case. In May 2015, they threw a legal wrench into the civil contempt trial of Arpaio, his chief deputy Jerry Sheridan, and three other current and former MCSO employees, asking that Snow recuse himself, in part because they said he could not be impartial, as Arpaio and Sheridan had investigated both Snow and his wife, albeit for bogus reasons.
Arpaio has used this tactic of investigating judges, prosecutors, and members of the board of supervisors, many times in the past in order to cause a conflict of interest that the subject of the investigation must address, often by removing him- or herself from a case involving Arpaio and his office.
But it didn't work in 2015. After pausing the civil-contempt hearings for several weeks to entertain dueling motions, Snow ruled against Arpaio's attorneys in July of last year, refusing to recuse himself and finding that the recusal motions were not timely under the rules of the court.
The trial then continued, with Snow ultimately finding Arpaio, Sheridan, and others guilty of civil contempt. In August of this year, Snow referred cases involving Arpaio, Sheridan, and two others for criminal prosecutions. On Tuesday, federal Judge Susan R. Bolton issued an order formally charging Arpaio with one misdemeanor count of criminal contempt — a charge Arpaio has blamed on a vendetta by President Obama and the U.S. Department of Justice.
This latest attempt to kick Snow off the Melendres case comes after Snow scheduled a status conference for November 3 that likely will address further foot-dragging by Arpaio and the MCSO in complying with Snow's orders. Recently, Arpaio's Arizona attorneys in Melendres, John Masterson and Joe Popolizio of the local firm Jones, Skelton, & Hochuli, have asked for an extension of deadlines Snow had set for the revision of MCSO policies and procedures to bring them in line with Snow's recent orders.
In their motion for a deadline extension, Masterson and Popolizio seemed to blame the need for more time on the monitor and attorneys for the ACLU, who represent the plaintiff class of all Latinos in Maricopa County. In a response to the defense's request, the ACLU stated, in polite legal parlance, that the plaintiffs "do not agree with the Defendants' characterization of events relating to compliance."
The November 3 hearing will occur just days before voters will decide Arpaio's fate at the polls on November 8. As such, the hearing is likely to garner the attention of local and national media, even more so in light of this most recent move by Arpaio's D.C. attorneys.
In early September, the Maricopa County Board of Supervisors rejected a request by the MCSO to hire Cooper's firm to, in the words of the agenda item, "defend the constitutional authority and statutory duties and responsibilities of the Maricopa County Sheriff’s Office in an amount not to exceed $1,000,000." The supervisors voted three-to-two not to hire the firm.
That request raises the question of how Cooper & Kirk is being paid. Chandler attorney Tom Ryan, who represents the ex-wife of Arpaio's Democratic challenger Paul Penzone on the issue of Arpaio's attack ads falsely painting Penzone as a wife-beater, tells New Times that he inquired about the MCSO's hiring of the firm after seeing Cooper's name added as an attorney for Arpaio on the Melendres docket.
Ryan says his public-records request to the office of Maricopa County Attorney Bill Montgomery for details of Cooper's contract has not yet been fulfilled. But Ryan says Doug Irish, the chief of the MCAO's civil-services division, informed him in a recent telephone conversation that Cooper & Kirk's fees will come out of the MCSO's budget.
"How the hell are they going to get $1 million out of the sheriff's budget?" Ryan asks rhetorically. "What they're going to make it look like is that [Arpaio's current civil attorneys] hired this law firm."
Ryan contends that the issues raised in Cooper's motion for recusal have already been litigated. Indeed, court-appointed monitors are standard in civil-rights cases involving law-enforcement agencies across the nation. And if a judge could only communicate with a monitor in open court or with attorneys for all parties present, it would make a monitor's duties difficult, to say the least.
"This is a bunch of smoke and mirrors, hoping that the average voter in Maricopa County will not recognize it as such," Ryan says. "It's the legal equivalent of a flash-bang grenade. It's intended to divert and distract attention."
Former U.S. Attorney for Arizona Paul Charlton, an unabashed critic of the sheriff, calls the motion for recusal "outrageous" and denounces Arpaio's hiring of an out-of-state law firm, adding an additional tab to a case that has cost the public $50 million to date in legal fees, unsuccessful appeals, and compliance.
"Whatever [Cooper & Kirk's] hourly rates are, they are not the hourly rates that you pay a Phoenix law firm," Charlton tells New Times. "Whether it's from the county board of supervisors or from Joe Arpaio's budget, it's we the taxpayers who are footing the bill."
Charlton says he believes the motion is intended to slow the process.
"This is at a point in time when any rational law-enforcement agency would be looking for ways to cooperate with the monitor and the court and put this terrible experience behind us," says Charlton, pointing out that the money spent on this new firm would be better spent on normal law-enforcement functions.
Requests for comment from the ACLU and the Maricopa County Attorney's Office have yet to be returned.
In an e-mail accompanying the MCSO's press release on the recusal motion, public information officer Chris Hegstrom wrote, "No other statements will be made at this time."
Update 9:56 a.m.: The ACLU issued the following statement from Cecillia Wang, Director of the ACLU Immigrants' Rights Project and one of the lead litigators in Melendres:
"Sheriff Arpaio lost on the merits, then was held in civil contempt. Now, a day after he was formally charged with criminal contempt, and at a time when he is years behind schedule in complying with the court's order protecting the community from racial profiling, he comes up with a last-ditch attempt to disqualify the court. This effort should meet the same fate as the first."
Update 4:46 p.m.: In response to a public records request, the MCAO just released a letter signed by Bill Montgomery and dated September 8 — one day after the BOS voted against this request — that approves the use of the DC firm Cooper & Kirk "to provide additional legal services in an appeal" in the Melendres case. The letter further states that "the source of funds to pay for this engagement needs to be worked out with, and approved by, the Maricopa County Office of Management and Budget, under the direction of Sandi Wilson, Deputy County Manager."
Read the motion requesting Judge G. Murray Snow's recusal in Melendres:
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Read the motion requesting all communications between Judge Snow and court monitor Robert Warshaw:
Read the letter from County Attorney Bill Montgomery approving the use of DC firm Cooper & Kirk: