The Ninth Circuit on Monday affirmed an Arizona federal judge’s
delegation of decision-making authority to a court-appointed monitor in a
nearly two-decade class action over racial profiling by the Maricopa County Sheriff’s Office. 

In
his third injunctive order since finding that then-county Sheriff Joe
Arpaio implemented racist policies of “immigration sweeps” in which
Latinos were disproportionately detained on suspicion of
non-citizenship, U.S. District Judge G. Murray Snow vested authority in a
third-party monitor to decide when and how to intake and route
misconduct complaints in an effort to catch up with a growing backlog of complaint investigations. 

In a 31-page opinion
published Monday morning, a three-judge panel rejected the sheriff’s
contention that Snow violated the U.S. Constitution’s separation of
powers principle and Civil Rules of Procedure 53 and 65, the former of
which limits the authority of a court-appointed monitor to an advisory
role.

Because the George W. Bush appointee relied on his “inherent
equitable powers” as a federal judge rather than rule 53, the limits
imposed by rule 53 don’t apply, the panel found.

“Rule 53 does not
apply to the third order for several reasons,” U.S. Circuit Judge
Clifford Wallace wrote for the panel. “First, neither the first order
nor the order appointing the monitor relies upon it. With no indication
that the court relied on the authority conferred by Rule 53 to appoint
the monitor in the first place, the sheriff’s remaining arguments fall
flat.”

Rule 53 applies to the role of a “special master,” which
differs from a court-appointed monitor in that a special master is
tasked only with “quasi-judicial” functions and has more limited
authority than a monitor. If Snow were to delegate decision-making power
to a special master under Rule 53, then the sheriff’s office would have
a stronger case. 

“That the district court did not direct the
monitor to carry out many of the functions authorized by Rule 53
reinforces our conclusion that the rule was not the source of the
monitor’s authority at any juncture,” wrote Wallace, a Richard Nixon
appointee.

Even if the monitor was appointed under Rule 53, the
panel found, Snow has the authority to order additional remedies using
his inherent equitable powers. 

In the November 2022 injunctive order, Snow found then-Sheriff Paul Penzone in civil contempt
for failing to take proper steps to catch up on a backlog of misconduct
complaints stemming from the reign of his predecessor Arpaio. Arpaio
was found in civil contempt in 2016 and convicted of criminal contempt in 2017, but he was pardoned by then-President Donald Trump just weeks before his sentencing. 

When
Penzone took over for Arpaio in 2017, he was tasked with filling seven
vacant internal investigator positions and decreasing the average time
it took to complete an investigation from more than 600 days down to 85
or fewer. By 2023, the list of uninvestigated complaints — including
accusations of violence and sexual assault by sheriff’s deputies and
correctional officers — remained at more than 2,000. 

Snow
appointed former chief of the Rochester Police Department Robert
Warshaw as a third-party monitor in 2013 to ensure the sheriff’s office
complied with Snow’s orders. Warshaw, a former associate director of the
White House Office of National Drug Control Policy, had previously been
appointed as a monitor over the Oakland Police Department in 2010. Snow
appointed him on recommendation from the American Civil Liberties Union
of Arizona. 

After 11 years of monitoring, the situation hasn’t improved. Snow floated stricter sanctions against the sheriff’s office, now led by Russ Skinner, in July, but hasn’t yet finalized an order.

The sheriff’s office opposed Warshaw’s appointment and the administrative power Snow gave him in 2022, telling the panel in March
that Warshaw’s role should be reduced to simply offering advice rather
than making decisions. But the judges seemed unsympathetic to their
arguments, reminding the sheriff’s attorney any decision the monitor
makes is still subject to judicial review if the defendants ask for it. 

The
third order not specifically authorizing judicial review served as one
of the sheriff’s main points in his claim that the appointment violates
separation of powers. But the panel found the third order works in
tandem with the first two, which do specifically call for judicial
review. 

Lastly, the panel rejected claims that the appointment of
the monitor violates Civil Rule of Procedure 65, which requires
injunctions to state their terms specifically to avoid accidental
noncompliance. 

“The supplemental injunctions’ terms in this case
are a far cry from the enigmatic,” Wallace wrote. “Taking into account
the specificity of the previous supplemental injunctions’ terms and
MCSO’s history of noncompliance with those terms, the paragraphs at
issue are not so vague that the sheriff cannot understand what is
required of him.”

U.S. Circuit Judges Susan Graber and Marsha Berzon, both Bill Clinton appointees, rounded out the panel.

Neither
Sheriff Skinner, nor the ACLU, which represents the plaintiff class,
replied to a request for comment. The Department of Justice declined.