Arpaio, et al. v. Maricopa County Board of Supervisors, et al.

MOTION to Dismiss Case

D. Ariz.December 24, 2009

1 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 José De Jesus Rivera (SBN 004604) jrivera@hmpmlaw.com Stephen T. Portell (SBN 18567) sportell@hmpmlaw.com HARALSON, MILLER, PITT, FELDMAN & McANALLY, P.L.C. 2800 North Central Avenue, Suite 840 Phoenix, AZ 85004-1069 (602) 266-5557 • (602) 266-2223 Fax Attorneys for Hon. Anna Baca IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA Joseph M. Arpaio, in his official capacity as Maricopa County Sheriff, and Andrew P. Thomas, in his official capacity as Maricopa County Attorney, Plaintiffs, v. Maricopa County Board of Supervisors, a body politic and corporate; Fulton Brock, Supervisor, Maricopa County Board of Supervisors; Andrew Kunasek, Supervisor, Maricopa County Board of Supervisors; Donald T. Stapley, Jr. Supervisor, Maricopa County Board of Supervisors; Mary Rose Wilcox, Supervisor, Maricopa County Board of Supervisors; Max Wilson, Supervisor, Maricopa County Board of Supervisors; David Smith, County Manager; Sandi Wilson, Deputy County Manager; Wade Swanson, Office of General Litigation; Barbara R. Mundell, Judge of the Superior Court of Arizona, Anna Baca, Judge of the Superior Court of Arizona, Gary Donahoe, Judge of the Superior Court of Arizona, Kenneth Fields, Judge of the Superior Court of Arizona, in their official capacities; Thomas Irvine, attorney; Edward Novak, attorney; and Polsinelli Shughart P.C., Defendants. NO. 2:09-cv-02492-GMS HONORABLE ANNA BACA’S MOTION TO DISMISS (Oral Argument Requested) Case 2:09-cv-02492-GMS Document 19 Filed 12/24/09 Page 1 of 15 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 21 22 23 24 25 26 Pursuant to Federal Rules of Civil Procedure 8(a), 12(b)(1), and 12(b)(6), Defendant Hon. Anna Baca (“Judge Baca”) moves to dismiss the Complaint filed by Plaintiffs Joseph M. Arpaio, in his official capacity as Maricopa County Sheriff, and Andrew P. Thomas, in his official capacity as Maricopa County Attorney. Judge Baca joins The Polsinelli Defendants’ Motion to Dismiss filed on December 15, 2009 (“Polsinelli Motion”), as well as the motions to dismiss that will be filed by counsel for the other defendants in this matter. In addition, Judge Baca provides the following grounds for dismissal. MEMORANDUM OF POINTS AND AUTHORITIES I. Introduction The scorched-earth political battles of Andrew Thomas and Joseph Arpaio have no place in this court. In an act of recklessness and desperation, they have named four highly respected Arizona judges as racketeers pursuant to 18 U.S.C. § 1961, et seq. (“RICO”). Although the allegations against these judges are demonstrably false, protracted litigation is unwarranted. Arpaio and Thomas should not be allowed to maintain the present lawsuit and run roughshod over: (1) the well-settled doctrine of judicial immunity, (2) federal pleading standards, and (3) RICO itself. For the reasons stated below, the claims against Judge Baca and the other judges should be dismissed with prejudice. 10 II. Allegations Against Judge Baca Judge Baca, now retired from public service, is peripheral to Plaintiffs’ lawsuit. Allegations against her are limited to paragraphs 20, 33 and 38-42 of the Complaint. The allegations relate to a brief period of time, beginning in December 2008, when Judge Baca, as Presiding Criminal Judge in Maricopa County Superior Court, dealt with the assignment of Judge Fields to the prosecution of Donald Stapley and a subsequent motion from Andrew Thomas to disqualify Judge Fields, pursuant to Ariz. R. Crim. P. 20 -2- Case 2:09-cv-02492-GMS Document 19 Filed 12/24/09 Page 2 of 15 1 2 3 4 5 6 7 8 9 10 11 13 14 19 20 21 22 23 24 25 26 12 15 16 17 18 -3- 10.1.1 Judge Baca’s involvement ended approximately four months later, when Andrew Thomas filed a Notice of Substitution of Counsel to have the Yavapai County Attorney take over the prosecution.2 The Complaint alleges that Judge Baca knew of Judge Fields’ bias against Andrew Thomas, and, despite this knowledge, she “conspired to retain Fields” on the Stapley case and “refused to grant [Thomas] a hearing on the State’s motion to remove Fields for bias.” Complaint, ¶¶ 38, 41 & 42. Plaintiffs claim that this was done as part of a conspiracy to “facilitate the payment of public monies by the Board of the Superior Court to fund the Court Tower … in exchange for the hindering and providing prosecution [sic] from criminal investigation and prosecution” for Donald Stapley and unnamed “others”. Complaint, ¶33. III. ANALYSIS A. Judicial Immunity Shields Judge Baca from Plaintiffs’ RICO Claim. The United States Supreme Court has long recognized the doctrine of judicial immunity and its venerable history in English courts. Bradley v. Fisher, 13 Wall. 335, 347, 20 L. Ed. 646 (1872). Judicial immunity protects judicial independence “by insulating judges from vexatious actions prosecuted by disgruntled litigants.” Id., at 348. To promote judicial independence, the scope of the immunity will be broadly construed 1 Although it is irrelevant to deciding the present motion, the Court can take judicial notice of the minute entries in Maricopa County Superior Court Docket No. CR2008-009242 (hereinafter “the Stapley case”) to understand the limited timeframe and role of Judge Baca. Taking judicial notice of such public documents does not convert the present motion into a motion for summary judgment. Mack v. South Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) (district court's consideration of state’s public records did not convert defendant's 12(b)(6) motion to one for summary judgment); Shaw v. Hahn, 56 F.3d 1128, 1129, n.1 (9th Cir. 1995) (a district court can look beyond the plaintiff’s complaint to matters of public record when deciding a Rule 12(b)(6) motion). 2 Again, although it is irrelevant to the instant motion, the Court can take judicial notice of the minute entry in the Stapley case, dated April 7, 2009. Case 2:09-cv-02492-GMS Document 19 Filed 12/24/09 Page 3 of 15 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 2 3 4 5 6 7 -4- and technical distinctions avoided. Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (citations omitted). Judicial immunity applies even when a judge is accused of acting maliciously or corruptly, because it "is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of the consequences.'' Pierson v. Ray, 386 U.S. 547, 554 (1967) (quoting Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868)). A judge loses her absolute immunity in only two scenarios: (1) if her actions were performed in the "clear absence of all jurisdiction'' or (2) if her actions were not "judicial'' in nature. Bradley, 80 U.S. at 351; Stump v. Sparkman, 435 U.S. 349, 360 (1978). Under the first scenario, a “clear absence of all jurisdiction” means a lack of subject matter jurisdiction. Ashelman, 793 F.2d at 1076 (immunity is lost only if a judge was acting clearly beyond the scope of subject matter jurisdiction). The scope of a judge's jurisdiction should be construed broadly to effectuate the policies supporting immunity. Id. Under the second scenario, only “judicial” acts receive absolute immunity- administrative tasks (ex. hiring or firing court personnel) or legislative duties (ex. promulgating rules) fall outside the scope of absolute immunity. Forrester v. White, 484 U.S. 219, 227, 108 S. Ct. 538, 544 (1988). “Judicial” acts have been described as functions “normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.'' Stump, 435 U.S. at 362. “Judicial” acts usually involve the “function of resolving disputes between parties, or of authoritatively adjudicating private rights.” Atkinson-Baker & Associates, Inc. v. Kolts, 7 F.3d 1452, 1454 (9th Cir. 1993) (quoting Antoine v. Byers & Anderson, Inc., 113 S. Ct. 2167, 2171 (1993)). Case 2:09-cv-02492-GMS Document 19 Filed 12/24/09 Page 4 of 15 1 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 -5- 1. Judge Baca Acted within the Subject-Matter Jurisdiction of the Maricopa County Superior Court. Judges of the Superior Court are granted broad jurisdiction under Arizona law and the state constitution. The Superior Court of Arizona is a single unified trial court of general jurisdiction and has original jurisdiction over felony cases. State v. Marks, 186 Ariz. 139, 142, 920 P.2d 19, 22 (App. Div. 1 1996) rev. den.; Ariz. Const. Art. 6 § 14(4). As such, the Maricopa County Superior Court had not only original jurisdiction over the Stapley case, it also had “all powers and [could] issue all writs necessary to the complete exercise of its jurisdiction.” A.R.S. § 12-123(B). Again, jurisdiction is to be construed broadly to effectuate the policies supporting immunity. Ashelman, 793 F.2d at 1076. There can be no dispute that Judge Baca, as the Presiding Criminal Judge of the Maricopa County Superior Court, was well within the subject matter jurisdiction of the court when she presided over the Plaintiffs’ motion to disqualify Judge Fields. In fact, Judge Baca had considerable latitude in handling the motion. “[A]ny provision relating to disqualification of judges must be given strict construction to safeguard the judiciary from frivolous attacks on its dignity and integrity and to ensure orderly function of the judicial system.” State v. Perkins, 141 Ariz. 278, 286, 686 P.2d 1248, 1256 (1984), citing Rademacher v. City of Phoenix, 442 F. Supp. 27, 29 (D. Ariz. 1977). In addition, a presiding judge is not strictly required to hold a hearing on a motion to disqualify. State v. Eastlack, 180 Ariz. 243, 254, 883 P.2d 999, 1010 (1994) (holding that a presiding judge does not need to hold a hearing pursuant to Ariz. R. Crim. P. 10.1, if she determines that the motion fails to allege interest or prejudice on the part of the assigned judge). And, finally, while Arizona judges are encouraged to resolve disqualifications motions “as quickly as justice allows,” any delays in the proceedings are within the sound discretion of the court. State v. Myers, 117 Ariz. 79, 87, 570 P.2d 1252, 1260 (1977). Case 2:09-cv-02492-GMS Document 19 Filed 12/24/09 Page 5 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 23 24 25 26 15 16 17 18 19 20 21 22 -6- Therefore, judicial immunity cannot be defeated on the grounds that Judge Baca’s actions were beyond the subject matter jurisdiction of her court. In fact, her actions were well within the discretion granted to her under Arizona law. Plaintiffs’ allegations that Judge Baca and the other defendant judges violated Arizona law or procedural rules are irrelevant (and patently false). Judicial immunity applies "however erroneous the act may have been and however injurious its consequences may have proved to the plaintiff.'' Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985) (quoting Bradley, 80 U.S. at 347); Evans v. Copins, 26 Ariz. App. 96, 546 P.2d 365 (1976) (judge shielded by absolute immunity despite his wrongful incarceration of a citizen for a traffic violation). “If judicial immunity means anything, it means that a judge will not be deprived of immunity because the action he took was in error … or was in excess of his authority.” Stump, 435 U.S. at 356, 98 S. Ct. at 1105 (internal quotations omitted). 2. Judge Baca’s Activities were Judicial in Nature. Because Judge Baca acted within her jurisdiction, the only question that remains is whether her actions were “judicial” in nature. When making this determination, courts must look to the overall “function” or “nature” of the act, not the actor or the act itself. Forrester, 484 U.S. at 227, 108 S. Ct. at 544 (“immunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches”) (emphasis in original). We must first look to the act’s relationship to “a general function normally performed by a judge.” Mireles v. Waco, 502 U.S. 9, 12-13, 112 S. Ct. 286, 288-289 (1991). It is also helpful to assess whether the parties dealt with the judge in her judicial capacity. Barrett v. Harrington, 130 F.3d 246, 255 (6th Cir. 1997). In Mireles, the Supreme Court held that a judge was judicially immune from suit for ordering police officers to bring an attorney before him, even though the judge allegedly directed them to carry out the order with excessive force. Mireles, 502 U.S. at 13, 112 S. Ct. at 289. The court noted that, although directing the officers to use Case 2:09-cv-02492-GMS Document 19 Filed 12/24/09 Page 6 of 15 1 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 -7- excessive force was not a “function normally performed by a judge,” the particular act is not the focus of the analysis. Id. at 12-13, 112 S. Ct. at 288. “[I]f only the particular act in question were scrutinized, then any mistake a judge made that exceeded his authority would become a ‘nonjudicial’ act, because an improper or erroneous act cannot be said to be normally performed by a judge.” Id. In the end, the Supreme Court held that the “function of directing police officers to bring counsel in a pending case before the court” was a judicial act and deserved absolute immunity. Id. at 13, 112 S. Ct. at 288-289. In contrast to the unusual order of the trial judge in Mireles, Judge Baca’s activities were clearly judicial in nature. One needs look no further than the Complaint itself. Plaintiffs’ dispute with Judge Baca arose directly from her handling of the Stapley case in her official capacity as the Presiding Criminal Judge. Complaint, ¶¶ 20, 33 & 38- 42. Plaintiffs criticize her for allegedly refusing to grant a hearing in the Stapley case and to rule that Judge Fields was disqualified due to his bias. These alleged actions of Judge Baca are undeniably “judicial” in their nature and are, therefore, subject to absolute immunity. “The application of judicial immunity is simple and non- controversial when applied to ‘paradigmatic judicial acts,’ or acts of actual adjudication, i.e., acts involved in resolving disputes between parties who have invoked the jurisdiction of the court.” Barrett, 130 F.3d at 255, citing Forrester, 484 U.S. at 227, 108 S. Ct. at 544 (emphasis added). Even if Judge Baca had originally assigned Judge Fields to the Stapley case, the act of assigning the case would have been a judicial one that is shielded by absolute immunity. Martinez v. Winner, 771 F.2d 424, 434 (10th Cir. 1985) (holding that assignment of the case, even if improper, is a judicial act for which a judge is entitled to immunity); John v. Barron, 897 F.2d 1387, 1392 (7th Cir. 1990) (agreeing with Ashelman and stating “unlike a judge who fires a court employee, a judge who assigns a case, considers pretrial matters, and renders a decision, acts well within his or her judicial capacity”). Case 2:09-cv-02492-GMS Document 19 Filed 12/24/09 Page 7 of 15 1 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 -8- 3. Plaintiffs’ Vague Allegations of a Conspiracy Cannot Overcome Judicial Immunity. Plaintiffs’ allegation that Judge Baca and the other defendant judges were motivated by a conspiracy to hinder the prosecution of Donald Stapley cannot defeat judicial immunity. It is not uncommon for disgruntled litigants to allege conspiracies, bribery and corruption to attack judges. See, e.g. Stone v. Baum, 409 F. Supp. 2d 1164 (D. Ariz. 2005). Once immunity is established for the conduct in question, it “is not overcome by allegations of bad faith or malice.” Barrett, 130 F.3d at 255 (quoting Mireles, 502 U.S. at 11); Forrester, 484 U.S. at 227, 108 S. Ct. at 544 (a judicial act “does not become less judicial by virtue of an allegation of malice or corruption of motive”); Pierson, 386 U.S. at 554-555 (finding immunity despite the allegation of a conspiracy between the judge and law enforcement officers to arrest other Freedom Riders). For example, in Ashelman, a prisoner awaiting trial filed a civil rights action against the judge and prosecutor for an alleged conspiracy to deprive him of access to resources for the defense of his case. 793 F.2d at 1074. The Ninth Circuit upheld dismissal of the complaint and overruled contrary cases.3 793 F.2d at 1078. The court in Ashelman held that a plaintiff’s allegation of a conspiracy cannot pierce judicial immunity, even when the allegations describe a conspiracy to produce a certain outcome in court. Id. The Ninth Circuit held that conspiracy allegations “should no more pierce the actor’s immunity than allegations of bad faith, personal interest or outright 3 Rankin v. Howard, 633 F.2d 844, 848-49 (9th Cir. 1980) (an alleged conspiracy with a Kansas judge, who had no personal jurisdiction over the plaintiff but issued ex parte orders anyway to establish a guardianship over the plaintiff to allow his parents to “deprogram” him from his beliefs in the Unification Church); Beard v. Udall, 648 F.2d 1264 (9th Cir. 1981) (an alleged conspiracy between a judge and a prosecutor to deprive a defendant of his constitutional rights). Case 2:09-cv-02492-GMS Document 19 Filed 12/24/09 Page 8 of 15 1 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 -9- malevolence.” Id. A more extreme example is found in Martinez, where there was definitive proof that a judge had an ex parte meeting with prosecutors and law enforcement officials. 771 F.2d at 432-433. During the meeting, the judge suggested installing hidden cameras to capture the plaintiff’s suspected intimidation of jurors in a criminal trial and even worked with the prosecutor on the timing of a mistrial motion so that defense strategies would be revealed. Id. The Tenth Circuit upheld dismissal of the civil rights complaint against the judge and observed that “[a] judge who allegedly predetermines a case is still protected by judicial immunity.” Id. at 435. The court acknowledged that the ex parte meetings were a “gross impropriety” but held that the judge had absolute immunity to plaintiff’s claim for damages and that the overriding concern should be the potential harassment of courts from disappointed litigants. Id. at 436. The Tenth Circuit noted that the public has other remedies to address judicial misconduct, including impeachment and disciplinary proceedings. Id. In the present case, the allegations fall far short of those in Ashelman and Martinez. Plaintiffs allege that Judge Baca was aware of Judge Fields’ bias and that she conspired to “retain” him on the Stapley case. Judge Baca did no such thing. However, even if such an allegation enjoyed a presumption of truth, it would not be enough to defeat judicial immunity. The scope of immunity is to be broadly construed and exceptions should be narrow and technical distinctions avoided. Ashelman, 793 F.2d at 1078. “To foreclose immunity upon allegations that judicial and prosecutorial decisions were conditioned upon a conspiracy or bribery serves to defeat these policies.” Id. 4. Absolute Immunity Makes Amendment of the Complaint Futile. Issues of immunity should be resolved as early as possible in a lawsuit “in order to prevent the litigant from having to endure pretrial matters such as discovery.” Barrett, 130 F.3d at 252 (citations omitted). “‘Absolute immunity’ refers to the right to be free Case 2:09-cv-02492-GMS Document 19 Filed 12/24/09 Page 9 of 15 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 2 3 -10- not only from the consequences of the litigation’s results, but from the burden of defending oneself altogether.” Stone, 409 F. Supp. 2d at 1174, citing 46 Am. Jur. 2d, Judges § 68 (August 2005). Leave to amend pleadings is not proper when any of the following four factors are present: bad faith, undue delay, prejudice to the opposing party, and/or futility. Stone, 409 F. Supp. 2d at 1175, citing Griggs v. Pace American Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999) (internal citations omitted). In Stone, Judge David C. Bury held that amending the complaint was futile because judicial immunity had been found: The Complaint fails against all the named judges in this action because there is no question that subject matter jurisdiction existed in each instance. The alleged acts were judicial acts, taken within each court's subject matter jurisdiction, and as such the Defendant judges are immune from suit. Stone, 409 F. Supp. 2d at 1176, citing Ashelman, 793 F.2d at 1075. The Court should follow the example of Stone and dismiss Judge Baca and the other defendant judges from this lawsuit. B. No Plausible Facts are Alleged Against Judge Baca. Even if it could survive its obvious conflict with the doctrine of judicial immunity, the Complaint fails to state a claim against Judge Baca. In its 81 paragraphs, only a few mention Judge Baca, and even those few paragraphs contain nothing more than vague and conclusory allegations. These defects would have been problematic for Plaintiffs under the old, deferential pleading standards in federal court. However, for the reasons stated below, the defects are now fatal. As the Court already knows, federal pleading standards have undergone a sea change. When the sufficiency of a pleading is challenged now, it is subjected to closer scrutiny, and the presumption of truth is no longer automatic. Now, a pleading must contain factual allegations sufficient to “raise a right of relief above the speculative Case 2:09-cv-02492-GMS Document 19 Filed 12/24/09 Page 10 of 15 1 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 -11- level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Also, courts will not accept as true any unsupported conclusions and unwarranted inferences, couched as factual allegations. Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1950 (2009) (stating that pleadings which contain “no more than conclusions, [without any factual support], are not entitled to the assumption of truth”). In order to be “facially plausible” the facts, as pled, must allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (Quoting Twombly, 550 U.S. at 556). This new approach under Twombly/Iqbal is a two-step process. Id. First, the Court must examine the Complaint and “identify pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. This step calls for the Court to weed out and disregard conclusory statements. Second, the Court must look at what remains (the well-pleaded factual allegations) and “determine whether they plausibly give rise to an entitlement to relief.” Id. This step is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. When subjected to this two-step, the Complaints’ allegations against Judge Baca crumble. First, the Court must set aside all vague and conclusory statements in the Complaint, including, but not limited to, the following: • Paragraph 33 - all allegations; • Paragraph 38 - allegations about Judge Fields’ bias; • Paragraph 39 - the sentence “[t]he evidence of defendant Fields’ bias was extensive”, and the phrase “had taken other public actions to demonstrate bias, in addition to taking other private actions evidencing bias known to defendants Mundell and Baca but currently unknown to plaintiffs.” Case 2:09-cv-02492-GMS Document 19 Filed 12/24/09 Page 11 of 15 1 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 -12- • Paragraph 41 - the phrase “in violation of Arizona law, rules of court and the standard practices of the Maricopa County Superior Court.” • Paragraph 42 - the phrase “[t]his action violated Arizona’s rules of court, which require a prompt hearing upon the filing of such a motion.” Second, the Court must examine the remaining allegations and decide whether they plausibly state a claim against Judge Baca. Under this analysis, the Court should consider the context of the allegations and filter them through the Court’s considerable judicial experience and common sense. For example, Paragraph 33, if not disregarded as conclusory, alleges a wide-ranging conspiracy between the Board of Supervisors, members of the judiciary and a private law firm to steer public funds to a public construction project and to hinder the criminal prosecution of Donald Stapley and unnamed others. In its current form, Paragraph 33 is very similar to the “implausible” conspiracy allegations in Iqbal. 129 S. Ct. at 1951-1952 (government conspiracy to target and detain Arab Muslim men based upon their race, religion or national origin). In the present lawsuit, it is unreasonable to infer a wide-ranging conspiracy involving bribery of numerous public officials and state court judges. It is infinitely more plausible that the named defendants, including Judge Baca, were performing their various official duties and, in those capacities, had legitimate disagreements with the Plaintiffs. Under this “plausibility” analysis, the Court will find most, if not all, of the allegations in the Complaint describe political disputes, not racketeering. For the Court’s convenience, this motion is accompanied by a table that sets forth the paragraphs pertaining to Judge Baca and includes a model of the Twombly/Iqbal analysis for each one. See Appendix A. Case 2:09-cv-02492-GMS Document 19 Filed 12/24/09 Page 12 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 26 18 -13- C. Defects in Plaintiffs’ RICO Claim. Judge Baca joins in and adopts by reference the authority and analysis in the Polsinelli Motion, including, but not limited to, the following: • No predicate acts of bribery or extortion have been pled to satisfy Arizona’s definition of those crimes; • Plaintiffs lack standing; • Plaintiffs have failed to plead a valid Civil RICO claim under 18 U.S.C. § 1962(b), (c) or (d); • Plaintiffs have failed to identify the alleged RICO “enterprise”; and • Dismissal with prejudice is required. See, e.g., Swartz v. KPMG, LLP, 476 F.3d 756, 761 (9th Cir. 2007) (affirming district court’s dismissal of plaintiff’s RICO claim with prejudice because “under any internally consistent set of facts, it would be futile to amend the RICO claim”); Diessner v. Mortgage Elec. Registration Sys., 618 F. Supp. 2d 1184, 1189 (D. Ariz. 2009) (dismissing plaintiff’s RESPA claim where amendment would be futile). IV. CONCLUSION. Plaintiffs, frustrated by their previous defeats in state and federal courts, now accuse respected judges of accepting bribes and hindering justice. Arpaio and Thomas designed their Complaint to create a public relations firestorm for the Maricopa County Superior Court, to humiliate judges who have dared to rule against them and to intimidate judges who may deal with them in the future. It is nothing less than an attack on the independence of Arizona’s judiciary. Case 2:09-cv-02492-GMS Document 19 Filed 12/24/09 Page 13 of 15 1 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 -14- In words that are eerily prescient of this crisis, the Arizona Supreme Court has explained the need for judicial immunity: There are weighty reasons why judicial officers should be shielded in the proper discharge of their official duties from harassing litigation at the suit of those who think themselves wronged by their decisions and that injustice has been done. A defeated party to a litigation may not only think himself wronged, but may attribute wrong motives to the judge whom he holds responsible for his defeat. He may think that the judge has allowed passion or prejudice to control his decision. To allow a judge to be sued in a civil action on a complaint charging the judge's acts were the result of partiality, or malice, or corruption, would deprive the judges of the protection which is regarded as essential to judicial independence. It is not in the public interests that such a suit should be maintained; and it is a fundamental principle of English and American jurisdiction that such an action cannot be maintained. Davis v. Burris, 51 Ariz. 220, 225, 75 P.2d 689, 691 (1938) (emphasis supplied) (quotation and internal citations omitted). In light of the reckless accusations of Arpaio and Thomas, the need for judicial immunity is now greater than ever. For the reasons outlined in this motion, dismissal of the Complaint with prejudice is warranted under the doctrine of judicial immunity and the standards of Twombly/Iqball. It will be the first step toward repairing the damage done by Plaintiffs. RESPECTFULLY SUBMITTED this 24th day of December 2009. HARALSON, MILLER, PITT, FELDMAN & McANALLY, P.L.C. By: s/ Stephen T. Portell Stephen T. Portell Jose De Jesus Rivera Attorneys for Plaintiffs Case 2:09-cv-02492-GMS Document 19 Filed 12/24/09 Page 14 of 15 1 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 -15- CERTIFICATE OF SERVICE I hereby certify that on December 24, 2009, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Lisa M. Aubuchon Deputy County Attorney 100 West Washington, Suite 2100 Phoenix, Arizona 85003 aubuchon@mcao.maricopa.gov Attorney for Plaintiffs Stephen W. Tully John L. Condrey GORDON & REES, LLP 111 West Monroe Street, Suite 1111 Phoenix, AZ 85003 stully@gordonrees.com jcondrey@gordonrees.com Counsel for Defendants Maricopa County Board of Supervisors; Fulton Brock, Andrew Kunasek, Donald T. Stapley, Jr., Mary Rose Wilcox, Max Wilson, Supervisors; David Smith, County Manager; Sandi Wilson, Deputy County Manager; and, Wade Swanson, Office of General Litigation Michael L. Parrish STINSON, MORRISON, HECKER, LLP 1850 North Central Avenue, Suite 2100 Phoenix, AZ 85004 mparrish@stinson.com Counsel for Defendant the Honorable Barbara R. Mundell Gary L. Birnbaum MARISCAL, WEEKS, McINTYRE & FRIEDLANDER, P.A. 2901 North Central Avenue, Suite 200 Phoenix, AZ 85012 gary.birnbaum@mwmf.com Counsel for Defendant the Honorable Gary Donahoe James Belanger COPPERSMITH SCHERMER & BROCKELMAN, PLC 2800 North Central Avenue, Suite 1200 Phoenix, AZ 85004 jbelanger@csblaw.com Counsel for the Honorable Kenneth Fields Don P. Martin James A. Ryan Nicole France Stanton QUARLES & BRADY, LLP Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391 dmartin@quarles.com james.ryan@quarles.com Nicole.stanton@quarles.com Counsel for Defendants Polsinelli Shughart,P.C., Thomas Irvine, and Edward Novak s/ Arna Salazar Case 2:09-cv-02492-GMS Document 19 Filed 12/24/09 Page 15 of 15