Sheriff Joe Arpaio's legal Lhasa Apso Tim Casey is either a past master of logical paradoxes, or he has a tin ear for irony. At least that's how his latest filing with the federal court in the ACLU's big civil rights case Melendres v. Arpaio reads.
Last Friday, the parties in Melendres submitted a joint report on areas of agreement and disagreement, regarding how Judge G. Murray Snow's order in the case should be implemented.
Arpaio lost the case in May, when Snow found Joe's office guilty of prejudiced policing toward Hispanics, and enjoined the MCSO from continuing its racial-profiling ways.
Since then, true to form, the sheriff's office has objected to nearly everything the plaintiffs have requested in Melendres, though lawyers for the plaintiffs proved during last summer's trial that Arpaio is a pathetic old bigot, and his office has a pattern and practice of discriminating against Latinos.
So this week, Judge Snow ordered both sides to submit their arguments regarding the various points of contention, the main one being whether an independent monitor is needed to ensure that Maricopa County's near-senile serial racist doesn't continue to violate the U.S. Constitution.
In his brief on the matter, Casey concedes that a federal judge has the power to tell an elected county sheriff what to do.
And he admits it's well-established that a district court can appoint an independent monitor.
But he argues that an "Article III judge," as in Article III of the U.S. Constitution, cannot appoint a federal monitor, who can tell an elected sheriff what to do.
The most a monitor can do, Casey claims, is suggest stuff to the sheriff, which the sheriff can either follow or not.
"Defendants acknowledge that an `Independent Monitor,' if one were to be ordered by the Court, can lawfully review, study, and observe MCSO operations and then advise and recommend to the Sheriff what he should or should not do. But, ultimately, it is the Sheriff's decision whether to follow the recommendations of the `Independent Monitor.' Only this Court can require, direct, or order the Sheriff to do or not to do something.
"For example, if an `Independent Monitor' believes the Sheriff must do subject `A' or refrain from doing activity `B' and the Sheriff disagrees, the Sheriff's decision carries the day unless otherwise ordered by the Court directly. However, if a monitor were to be appointed, the Sheriff submits that provisions or terms relating to such a monitor would need to make explicit that when there is disagreement between a monitor's recommended action or inaction and the Sheriff's decision, it is the exclusive province of the Court to resolve the disputed matter..."
What a crock. If the court can tell Joe what to do, and the court can appoint a monitor, then the court can assign that monitor certain duties so Snow himself doesn't have to watch over Joe's every move with ruler in hand.
Even that wouldn't be a guarantee. Remember, this is the same sheriff's office that was sanctioned for destroying evidence in this case, and which Snow dinged in his May ruling, when he observed that the MCSO had violated a previous order of the court.
I mean, jeez, in June, Snow himself signaled he was inclined to appoint a monitor. Weren't you listening, Tim?
Casey also warns ominously of what he calls "monitor creep," in which a monitor might keep his or her monitor-ship going in order to guarantee an inflow of income.
You know, kind of like a lawyer whose livelihood depends on him defending a sheriff for repeat violations of the Constitution. And being well paid to do so with the public's money, natch.
It gets better. Casey's other self-defeating argument is that the county should not be forced to pay for both the oversight of a monitor and the plaintiffs' attorneys keeping an eye on the MCSO.
If the MCSO is non-compliant, the ACLU can just drag the sheriff back into court, states Casey.
"If Plaintiffs are forced to pursue litigation in order to have Defendants comply with the Court's Orders," Casey sniffs, "the Court should decide on a case-by-case basis as to whether the Plaintiffs should be awarded any reasonable fees and costs in bringing such action."
He adds, oblivious to the irony: "In other words, the so-called English rule of `loser pays' is appropriate here."
Right-o, Timmy. And just who is the loser again? I'm tempted to send Casey a old copy of Beck's Mellow Gold. There's a song on there that'd be perfect for his ringtone.
What does Stanley Young of Covington and Burling, lead attorney for the plaintiffs, have to say about all this in his memo to the court?
Basically, that denial ain't just a river in Egypt.
"This Court has already found that Defendants' actions violate the Constitution and this Court's own prior injunction. Now the MCSO denies the need for a monitor to help the Court prevent future constitutional violations, opposes policy changes, training hours, critical data collection terms, greater accountability through supervisory and disciplinary procedures and other measures that are conventional in racial profiling cases, and refuses even to try to repair the community relationships that its prior violations have damaged."
And unless Casey's forgotten, the U.S. Constitution trumps the authority of a county sheriff, particularly when it comes to violations of that very document.
"The activities proposed by Plaintiffs for a monitor would not conflict with state law governing the Sheriff's powers and responsibilities," Young notes. "First, there is no state law that prohibits the imposition of a court-appointed monitor.
"Moreover, even if there were any conflict with Arizona law--and Plaintiffs emphasize there is not--in light of the record in this case the Court would still have the power to enforce the U.S. Constitution."
Young maintains that the plaintiffs' proposed order, "does not provide the monitor with the ability to unilaterally order the MCSO to take or to refrain from any action."
Indeed, the plaintiffs' proposed order reads that, "the ultimate arbiter of compliance is the Court." Which should be obvious to all but the dimmest of wits.
"But under Defendants' proposal," Young observes, "all of the numerous and detailed duties regarding approval of implementing policies, procedures, protocols and materials would fall entirely on the Court in the first instance, with no opportunity for the monitor to first try to achieve consensus among the Parties "
Casey can squeal and moan all he wants. I guess he has to, so as to give the appearance of earning the $1 million of the people's money paid to his firm so far to defend a serial racist.
He knows there will be a monitor, that the monitor will have some authority afforded it by the court, and that Arpaio must come to heel.
In fact, one of the best arguments for a monitor is an August 6 chest-thumping fundraising letter signed by Arpaio, which I wrote about this week (in a blog cited by Young).
The sheriff promises his supporters in that correspondence that he will "never back down" when it comes to combating illegal immigration.
Yet, Casey told Judge Snow in June that, "The MCSO is out of the federal immigration enforcement business."
Now, with a client like Casey's, who can't even keep his story in line with what his lawyer is telling the court, why would anyone think an independent monitor is needed?