Arpaio Wants Judge To Remove Himself From Racial Profiling Case

By Jude Joffe-Block
Published: Friday, May 22, 2015 - 7:36pm
Updated: Saturday, May 23, 2015 - 1:42pm
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(Photo courtesy of the Court of Appeals, Division 1)
Judge Murray Snow

Maricopa County Sheriff Joe Arpaio wants the judge who ruled against him in a racial profiling case and is overseeing contempt of court proceedings against him to be off the case.

Just minutes before U.S. District Court Judge Murray Snow was set to begin a Friday morning status conference to prepare for the next round of civil contempt hearings in June, lawyers for the sheriff and the chief deputy filed a motion for Snow to recuse himself.

The motion for recusal or disqualification argues Snow's impartiality is in question. It is largely based on Snow’s recent decision to examine whether the sheriff ever investigated Snow or his family.

In response to Snow’s direct questioning of the sheriff in court in April, it came out the sheriff’s lawyer had hired a private investigator to look into comments allegedly made by Snow’s wife.

The aim was to verify the credibility of a 2013 Facebook message sent to Arpaio by a woman named Karen Grissom. In that message Grissom said she heard Snow’s wife say her husband, “hates u [sic] and will do anything to get u [sic] out of office.”

Snow asked the sheriff to turn over documents related to that investigation and another probe by the sheriff’s office that used a confidential informant in Seattle named Dennis Montgomery.

In court last week, Snow said after reviewing 50 of the documents from Montgomery’s work, he believed they suggested the investigation’s aim was to reveal an alleged conspiracy between Snow and the U.S. Department of Justice against Arpaio. Snow characterized the alleged conspiracy as “bogus” and said he believed the intent was to discredit him.

The motion for recusal denies the sheriff’s office did investigate Snow. But it alleges that Snow’s own characterization of Montgomery’s work has caused a conflict.

“Judge Snow...has an interest that could be substantially affected by the outcome of the proceeding because his reputation is squarely at stake,” the motion reads.

It also says Snow’s inquiry into how the sheriff followed up on the Facebook tip about Snow’s wife’s alleged comments had the result of making Snow’s wife a material witness in the case.

“No reasonable person with knowledge of the facts can deny that Judge Snow is now investigating and presiding over issues involving his own family,” reads the motion.

Snow was appointed to the federal bench by President George W. Bush in 2008, and has overseen the racial profiling case against the sheriff since 2009. Two years ago he ruled the sheriff’s office racially profiled Latino motorists and ordered sweeping reforms at the sheriff’s office.

When it came to light the sheriff and his staff had repeatedly violated Snow’s orders, Snow initiated contempt of court proceedings that began this April. The contempt hearings were supposed to resume on June 16.

The sheriff has admitted to civil contempt and faces fines and mandatory reforms to his office. Snow had threatened he may refer the case to a criminal prosecutor after the civil hearing.

But now the timing for those contempt proceedings is in limbo.

Snow will not take any more action in this case until he rules on the motion for recusal. He has invited all of the parties to weigh in on the issue. In the event that Snow decides to stay on the case, Arpaio has asked him to refer the question to another judge to decide if Snow should be disqualified.

The plaintiffs in the racial profiling case disagree there is any basis for Snow to be taken off the case.

Cecillia Wang of the American Civil Liberties Union noted the 9th U.S. Circuit Court of Appeals recently upheld most of Snow’s 2013 racial profiling ruling.

“Frankly the timing of Arpaio’s motion is very suspect and indicates this is an effort to manipulate the judicial system and derail the contempt proceeding which was scheduled to continue on June 16,” Wang said.

But Arpaio’s criminal defense attorney, Mel McDonald, denied the motion was an attempt to delay the contempt proceedings.

“Those that know me and know the others working on the case, would know that that's bogus,” McDonald said. “There is no reason to delay. There is no advantage to delay the proceeding.”

Yet it is hard to imagine how this development will not delay or disrupt the contempt proceedings, since all pre-hearing business is now on hold.

As a result of this motion, Snow cancelled three status conferences that had been set to prepare for the next round of contempt hearings. He has asked the parties to continue to save the dates of June 16-19 and June 23-26, however, since even if the contempt hearing is delayed the time could be used for depositions and other matters.

Indiana University Maurer School of Law Professor Charles Geyh said Snow is in an “undeniably awkward situation.”

Geyh, who studies judicial ethics and recusal, said any judge facing a recusal motion is caught between two competing ethical obligations to either disqualify himself if it is necessary, or not to disqualify himself if it isn’t necessary.

But Geyh said this case is unusual because not only is the judge dealing with a defendant who is facing contempt charges for violating court orders, “Now out of the blue the judge discovers the sheriff may have been engaged in activities aimed at investigating the judge himself — which makes this personal.”

Geyh said it could be seen as a judge’s responsibility to stay on a case when a defendant is targeting the judge. But he also says judges need to let go if they are taking things personally and developing a bias.

If there is an automatic expectation that a judge should always remove himself in situations like this one it could be problematic, Geyh said.

Then “every litigant knows the easiest way to get rid of a judge is to embark on a campaign to threaten or intimidate the judge,” Geyh said. “Because the minute he does that he is able to get himself a new judge. Which doesn’t seem reasonable either.”

This is the second time the sheriff has moved for a judge to be recused from this racial profiling case. Snow was assigned to this case after another judge recused herself.

The racial profiling case was initially assigned to former U.S. District Court Judge Mary Murguia, before she joined the 9th U.S. Circuit Court of Appeals. When Arpaio's attorneys learned Murguia’s twin sister, Janet, was the head of the Latino civil rights organization, National Council de la Raza, he argued the judge’s sister has “ideological, political, social and activist interests” in the lawsuit.

In her ruling, Murguia acknowledged National Council de la Raza had posted articles on its website that disparaged Arpaio and accused the sheriff’s office of racial profiling.

Murguia decided to recuse herself, writing that, “No Court should tolerate even the slightest chance that its continued participation in a high profile lawsuit could taint the public’s perception of the fairness of the outcome.”

Later a question arose whether Snow should recuse himself because his brother-in-law works for the law firm, Covington & Burling, which represents plaintiffs in the suit along with the ACLU.

Arpaio waived that conflict in 2012. At the time he told the Arizona Republic, "I'm confident in this judge and the judicial system, and I'm not asking for the judge to be removed from this case.”

He added, "In my opinion, this is just a ploy by the plaintiffs to delay the trial."

However the motion filed Friday resurrects the issue of Snow’s brother-in-law as a conflict. The motion also suggests that Snow’s decision to issue his racial profiling ruling against the sheriff in May 2013 was a sign of Snow's bias, because it came just a week before a petition deadline for a failed campaign to recall the sheriff.

The motion also accuses Snow of investigating matters outside of court because of a comment he made about something he had learned during the lunch break.

The filing for recusal echoes many of the points made in an earlier motion by the conservative advocacy group Freedom Watch.

The organization had filed a motion for Snow to be removed from the case as it also tried to represent the paid informant, Dennis Montgomery, as an intervenor in the case.

Snow denied Freedom Watch attorney Jonathon Moseley’s application to join the case last week because he said there was a conflict of interest given that Freedom Watch represents Arpaio in another lawsuit. Moseley has appealed that decision.

McDonald denied coordinating with Freedom Watch, but said he and the other attorneys were influenced by that organization. The motion McDonald filed copied a declaration by Chapman University School of Law Professor Ronald Rotunda that originally appeared in Freedom Watch’s filing.

“We did look at some of their materials,” McDonald said. “I spoke to Professor Rotunda to verify myself about some of the issues.”

When Snow did not rule on Freedom Watch’s motion for recusal, the organization’s founder, Larry Klayman, filed an emergency petition with the 9th U.S. Circuit Court of Appeals.

The appeals court declined to intervene to get Snow removed from the case.

Updated 5/23/2015 8:00 a.m.

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