Free Memorandum - District Court of Arizona - Arizona

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Georgia A. Staton, Bar #004863 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7854 [email protected] Attorneys for Defendants, Pinal County and Roger Vanderpool as Sheriff of Pinal County UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Robert Gant and Betty Gant, husband and wife, Plaintiffs, v. Roger Vanderpool, Sheriff of Pinal County; Pinal County, a political subdivision; John Does and Jane Does I-X; ABC Corporations IX; and XYZ Partnerships I-X, Defendants. NO. CV 03-2077-PHX-EHC DEFENDANTS' MEMORANDUM OF LAW RE: FINAL POLICYMAKING AUTHORITY

In connection with jury instructions, an issue has arisen regarding which officials have "final policymaking authority" as required to hold the County vicariously liable for their actions. Pembaur v. City of Cincinnati, 475 U.S. 469, 480-82 (1986); Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999). Specifically, there are two

questions: (1) Does Pinal County's Human Resource Director have final policymaking authority? (2) To what extent does Sheriff Vanderpool have final policymaking

authority? Defendants submit this Memorandum of Law to address these questions.

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Whether a government official has "final policymaking authority is a function of state law. Christie, 176 F.3d at 1235. In this case, there is no law or evidence that the County's Human Resources Director has final policymaking authority. The Human Resources Director does not make final decisions with regard to the promotion of Sheriff's deputies. And although the Human Resources Director does help develop

human resources policy and implements that policy, he does not have the final say with respect to those policies. See, e.g., Thompson v. Community Unit School Dist., 91 FEP Cases 1361 (N.D. Ill. 2003) (director of human resources was not final policymaker); Smith v. City of Holland Board of Public Works, 102 F. Supp. 2d 422, 424 (W.D. Mich. 2000) (same). The Sheriff is, undoubtedly, the final policymaking authority as to some matters. But he is not a final policymaking authority as to all County matters. The County is only vicariously liable for the actions of the Sheriff as to those matters over which he does have final policymaking authority. The Supreme Court made this point in Pembaur. "Municipal liability," it noted, "attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered." Pembaur, 475 U.S. at 481

(emphasis added). The Ninth Circuit recognized this concept in Weiner v. San Diego County, 210 F.3d 1025 (9th Cir. 2000), when it noted that a governmental entity is liable for an official's conduct only where the official was the policymaker "for purposes of the particular act." 210 F.3d at 1028 (emphasis added). Thus, it would be incorrect to instruct the jury, as the Court has proposed, that "Pinal County may be liable for any unlawful actions taken by the Pinal County Sheriff at issue in this case." (Emphasis added.) Such an instruction would be contrary to the principle of Pembaur. The correct instruction is the one Defendant has proposed based on Ninth Circuit instruction 11.12.
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RESPECTFULLY SUBMITTED this 30th day of October 2006. JONES, SKELTON & HOCHULI, P.L.C.

BY

s/Georgia A. Staton Georgia A. Staton 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants, Pinal County and Roger Vanderpool as Sheriff of Pinal County

Original e-filed and copies of the foregoing faxed/e-mailed this 30th day of October 2006, to: Hon. Earl H. Carroll United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street, SPC 48 Suite 521 Phoenix, AZ 85003-2151 602-322-7530 Fax: 602-322-7539 Robert M. Gregory, Esq. LAW OFFICE OF ROBERT M. GREGORY, P.C. 1920 South Alma School Road Suite A-115 Mesa, AZ 85210 Attorney for Plaintiffs 480-839-4711 E-mail: [email protected] s/Letitia L. Wright

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