Second Petition for Writ of Mandamus Filed with Ninth Circuit Court of Appeals in Arpaio Case

IS JUDGE SNOW TAKING ORDERS FROM SOMEONE?

by Sharon Rondeau

(Aug. 9, 2015) — On August 6, attorneys representing defendants Maricopa County, AZ and its sheriff, Joseph M. Arpaio in the case of Melendres, et al v. Arpaio, et al filed a Petition for a Writ of Mandamus to the Ninth Circuit Court of Appeals for the removal of U.S. District Court Judge G. Murray Snow.

The document and exhibits total 1,164 pages.

Melendres Arpaio Mandamus Recusal wo Exhibits wo Preliminary

Melendres Arpaio Mandamus Recusal wo Exhibits

On May 22, the legal team representing Arpaio, who was named as a defendant in his official capacity as sheriff, requested Snow’s “recusal or disqualification” under 28 U.S.C. § 144 and 28  U.S.C. 455.  Melendres Motion for Recusal or Disqualification of District Court Judge G. Murray Snow

Section 144 reads:

28 U.S. Code § 144 – Bias or prejudice of judge

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

(June 25, 1948, ch. 646, 62 Stat. 898; May 24, 1949, ch. 139, § 65, 63 Stat. 99.)

28 USC 455 states:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) Is a party to the proceeding, or an officer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) Is to the judge’s knowledge likely to be a material witness in the proceeding. (c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household. (d) For the purposes of this section the following words or phrases shall have the meaning indicated: (1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation; (2) the degree of relationship is calculated according to the civil law system; (3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian; (4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that: (i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund; (ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization; (iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest; (iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities. (e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification. (f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.

“By his own official inquiry, statements, and questions in open court on the record, one of the investigations into which Judge Snow unexpectedly inquired during recent contempt proceedings concerns his spouse, Sheri Snow. No reasonable person with knowledge of the facts can denied that Judge Snow is now investigating in presiding over issues involving his own family. This alone is sufficient to mandate recusal and disqualification. Furthermore, the fact that Judge Snow’s wife is now a material witness, while dispositive, is not the only appearance of bias and impropriety requiring recusal,” the defendants’ attorneys wrote of Snow in their May 22 brief.

In response, Snow canceled scheduled contempt trial hearing dates for the remainder of May and June “until the Motion is fully briefed and/or a ruling has been issued.”

On May 29, Atty. Michele Iafrate, for Arpaio, submitted a proposed briefing schedule on the Motion to Recuse submitted one week earlier.

Melendres May 29 2015 Proposed Briefing Schedule

On June 12, the Melendres plaintiffs filed an objection to the defendants’ request for Snow’s recusal.  Arpaio’s defense counsel responded on June 22, stating that several issues raised by Snow during hearings in April were unrelated to the civil contempt trial, indicating that Snow’s inquiry had extended beyond the boundaries of the issues in Melendres.

Melendres Arpaio Response to Plaintiffs Objection to Motion to Recuse

In early May, a confidential informant working for the Maricopa County Sheriff’s Office, Dennis Montgomery, asked Snow to recuse himself after Snow demanded that Montgomery hand over his work product to Snow’s appointed MCSO monitor, Robert Warshaw, whose role was stated to be “limited” by the Ninth Circuit to correcting constitutional violations found to have been committed by the MCSO in regard to a number of Latino plaintiffs.

Montgomery’s investigation allegedly contained evidence that the Central Intelligence Agency (CIA) or another government agency had breached more than 50,000 bank accounts of Maricopa County residents in addition to email accounts and telephone lines of MCSO attorneys and Snow himself.

The Ninth Circuit denied Montgomery’s motion to intervene and compel Snow’s recusal with the explanation that “Petitioner has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus. Accordingly, the emergency petition is denied. No further filings will be entertained in this closed case.”

On July 10, Snow stated on the court record that “…Sheriff Arpaio and Chief Deputy Sheridan’s Motion for Recusal/Disqualification (Doc. 1117 ) is DENIED.”

On July 24, local media reported that approximately 50 hard drives and other tangible items were “seized” in what was characterized as a “raid” by U.S. marshals ordered by Snow after Snow indicated that the MCSO had been uncooperative in turning them over previously.

On July 30, The Post & Email contacted MCSO spokeswoman Lisa Allen for clarification as to whether or not a “raid” had, in fact, been conducted by U.S. marshals.  Allen referred us to defendants’ attorneys Joseph Popolizio and John Masterson, both of whom were contacted but from whom we received no response.

In the briefs filed on Thursday, Masterson, Popolizio and several other attorneys working on behalf of the defendants contended that Snow raised “irrelevant subjects during the contempt hearing,” took part in an “extrajudicial investigation,” and in violation of the Ninth Circuit’s order, expanded the monitor’s responsibilities and powers beyond their defined scope.

The attorneys also objected to Snow’s demand to collect information from “internal investigations” which the MCSO is currently conducting, quoting Snow as having admitted that the information may or may not be “relevant” to the civil contempt case.

On page 22 of the brief, the attorneys stated that Snow’s “ex parte” communication with a then-unidentified source during the April hearings from which Snow quoted after a lunch break had, in fact, taken place with Warshaw, in whom Snow has previously expressed a great deal of confidence and “personal familiarity.”

“The district court’s refusal to recuse itself comes only after the court engaged in an ex parte conversation and then questioned witnesses regarding that ex parte information, refused to disclose the source of its information until much later, injected irrelevant yet very personal matters (personal to the court) into the contempt hearing, and gave the Monitor unbridled and unprecedented authority to investigate those matters…” the attorneys wrote on pages 38-39.

As The Post & Email has reported, invoices from Warshaw & Associates have totaled in the millions of dollars since the company’s assignment to the MCSO in January 2014.  According to Linda Bentley of The Sonoran News, the invoice totals may be close to exceeding the $2.2 million allotted by Maricopa County for the company’s court-ordered services for this year.

In May, Snow altered the way in which Warshaw’s invoices are reviewed without a change to the contract having been agreed by the parties.  Snow is now reviewing the invoice detail himself in his chambers and then ordering the bills paid by the county without its having the same benefit, which was stipulated in the January 2014 contract.

The attorneys also cited Snow’s brother-in-law’s employment with Covington & Burling, a law firm representing the plaintiffs along with the ACLU, as another source of conflict on Snow’s part.  Former Attorney General Eric Holder worked at Covington before his appointment to head the U.S. Department of Justice, and since leaving that post has returned to the law firm as a partner.  One of Holder’s former deputies, Lanny Breuer, also resumed his career at Covington in 2013.

During Arpaio’s and Sheridan’s respective April testimony, Snow questioned both men intensely about a “conspiracy theory” cited by The Phoenix New Times which Snow alleged Montgomery was attempting to prove involving “collusion” between the DOJ and himself in the Melendres case.