09/13/2017 -- 233 -- [Melendres Plaintiffs' Proposed Amici Brief
] MOTION to File Amicus Brief as to attorney Kathleen E. Brody by Ortega Melendres Plaintiffs as to Joseph M Arpaio. (Attachments: # 1 Proposed Amici Curiae Brief, # 2 Text of Proposed Order)(Brody, Kathleen) (Entered: 09/13/2017)
The defendant in this criminal action, Joseph M. Arpaio (“Defendant” or “Arpaio”), has moved for vacatur of this Court’s verdict of conviction for criminal contempt of court, the Court’s findings of fact and conclusions of law, and “all verdicts, orders and rulings,” following his acceptance of a presidential pardon. See Proposed Order, Doc. 220-1. Arpaio seeks to erase the past record of his criminal conduct in the litigation before this Court. This is an extraordinary request and the Court should deny it.
Arpaio argues that this case is now moot and that all of the Court’s orders should therefore be vacated. But to the extent this case is now moot, it is solely because he accepted the President’s pardon—an action that, as set forth below, acknowledges guilt. As Arpaio has been found guilty of criminal contempt by this Court, based on the trial record, and has now admitted his guilt by acceptance of the pardon, there is no reason to vacate the Court’s findings and other orders. Those orders constitute the record of Arpaio’s criminal conduct, which violated the order of the U.S. District Court in Ortega Melendres v. Arpaio,1 Case No. 2:07-cv-02513-GMS (D. Ariz.), Doc. 494, and the Fourth Amendment rights of amici, the Plaintiff class in that civil case. Under these circumstances, Arpaio has set forth no valid grounds for the extraordinary equitable remedy of vacatur, and such an order would fundamentally impair the public’s interest in ensuring a full and accurate record in the instant case. Arpaio’s requested vacatur would gravely harm the principle of rule of law which the court in Ortega Melendres sought to protect when it recommended criminal prosecution for Defendant’s contempt. Ortega Melendres v. Arpaio, Case No. 2:07- cv-02513-GMS (D. Ariz.), Doc. 1792, September 19, 2016 Order re Criminal Contempt. Criminal prosecution is an important safeguard against lawless disobedience of court orders. This Court’s July 31, 2017 findings therefore should not be vacated. Rather, this Court’s findings should remain in place and citable as the plain record of the instant litigation, as a rebuke to Defendant’s contempt-of-court in continuing an unconstitutional detention policy, and as a deterrent to others in the future who might defy lawful court orders in pursuit of personal gain. As the Ortega Melendres court noted, “The Sheriff’s defiance has been at the expense of the Plaintiff class” in that case. Id. at 11:11-12. As victims of that defiance and Defendant’s trampling on the Constitution, the Ortega Melendres Plaintiff class requests that this Court deny Arpaio’s vacatur request.
A litigant seeking vacatur of a district court judgment based on mootness bears the burden of showing “equitable entitlement to the extraordinary remedy of vacatur.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994); see also Cammermeyer v. Perry, 97 F.3d 1235, 1239 (9th Cir. 1996) (a court’s decision to vacate a judgment “is not to be made mechanically, but should be based on equitable considerations”); Dilley v. Gunn, 64 F.3d 1365, 1370 (9th Cir. 1995) (“U.S. Bancorp makes clear that the touchstone of vacatur is equity.”). Courts must “take account of the public interest” in evaluating the equities. U.S. Bancorp Mortg. Co., 513 U.S. at 26. As the Ninth Circuit observed in United States v. Tapia-Marquez, 361 F.3d 535, 537-38 (9th Cir. 2004), the Supreme Court has never applied the vacatur doctrine, which was developed in the context of civil appeals, in a criminal case like this one. However, even assuming that vacatur is permissible in a criminal case, it is not appropriate here.
The Court Should Not Vacate Its Orders in Light of Defendant’s Pardon.
A. Any Mootness Is the Result of Defendant’s Voluntary Action
B. Vacatur Would Fundamentally Impair the Public Interest.