1 JUDGE MARY MURGUIA Nominee to the Ninth Circuit Court of

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1 JUDGE MARY MURGUIA Nominee to the Ninth Circuit Court of Powered By Docstoc
					                                  JUDGE MARY MURGUIA
                          Nominee to the Ninth Circuit Court of Appeals

        Judge Murguia (b. 1960) has a compelling personal history and an accomplished
professional record. The daughter of Mexican immigrants, she was raised in a tight-knit, hard-
working family in Kansas City, Kansas.1 Her brother, Ramon, has said about his family that
“[w]hen one of us makes a friend, we all make a friend . . . . We make a friend on behalf of the
family, not on behalf of any individual.”2 Over the years, she and her siblings have made many
powerful friends, building themselves into one of the country’s most prominent Mexican
American families. Her identical twin, Janet, is currently the President and CEO of the National
Council of La Raza and was formerly the vice chancellor of the University of Kansas. Her
brother, Ramon, is a former Chairman of the Board of the National Council of La Raza. Another
brother, Carlos, is a federal district court judge in the District of Kansas.

        Like her siblings, Judge Murguia attended Kansas City public schools before attending
the University of Kansas, where she received both a B.A. and a B.S. in 1982. Following college,
she remained at the University of Kansas for law school, receiving her J.D. in 1985. Since then,
Murguia has devoted her entire career to public service. After law school she worked as an
assistant district attorney in the Wyandotte County District Attorney’s Office, which serves
Kansas City, Kansas. She remained there until 1990, when she accepted a position as an
assistant U.S. attorney in the District of Arizona. In 1994, Murguia was appointed Criminal
Deputy Chief in charge of the Violent Crime Section in the District of Arizona. As Deputy Chief
she handled a significant caseload, trained attorneys, supervised the Organized Crime Drug
Enforcement Task Force, and was responsible for consulting and staffing major prosecutions,
including areas such as domestic terrorism, capital murder, civil rights, the Violence Against
Women Act, the Child Support Recovery Act, and gang and juvenile matters. In 1998, she was
selected to serve in the Executive Office for U.S. Attorneys, rising to become Director in 1999.
In 2000, President Clinton nominated her to a newly created seat in the District of Arizona, and
upon her confirmation later that year she became the first Latina to serve as a federal judge in the
history of Arizona.

  Manny Lopez, Raising the Bar: Murguia Family has Deep Roots in the Argentine Neighborhood of Kansas City,
KANSAS CITY BUS. J., Feb. 9, 2001.
  Jan Landon, Chain of Support: Each Sibling Forms a Link in the Murguia Chain, KANSAS CITY STAR, Feb. 8,
2004, at 11.

       Judge Murguia has been a member of several professional organizations including Los
Abogados (the Hispanic Lawyers Association in Phoenix), the Hispanic National Bar
Association, St. Thomas More Society of Catholic Lawyers, the Association of Trial Lawyers of
America, and the Association of Women Lawyers of Greater Kansas City.3

        The following report examines Judge Murguia’s rulings in various areas of law.


       Judge Murguia has taken a thoughtful, pragmatic approach in environmental cases, and
has evinced a healthy skepticism of political encroachment into scientific decision making. For
instance, in Ctr. for Biological Diversity v. Kempthorne she protected the desert bald eagle from
attempts to de-list it as an endangered species.4 More specifically, Bush Administration political
appointees who had favored de-listing the eagle had overruled scientists at the Fish and Wildlife
Service, even thought there were only 36 breeding pairs of the bird remaining in the wild. In
holding that this was one of those “rare circumstances” in which the administration’s actions
were arbitrary and capricious,5 she described some of the government’s contentions as “far-
fetched at best.”6 Ultimately, Murguia ordered the eagle to remain listed under the Endangered
Species Act pending the outcome of a more thorough agency review.

        In an unpublished ruling in Center for Biological Diversity v. Stahn, Judge Murguia
enjoined the development of a uranium mine on national forest land adjoining Grand Canyon
National Park, and refused to impose a $100,000 bond on the plaintiffs.7 The plaintiffs, a
coalition of environmental and conservation groups, argued that the U.S. Forest Service had
approved the drilling with only minimal review in violation of the National Environmental
Policy Act, and that the project posed a threat to water quality in tributaries of the Colorado
River.8 Judge Murguia agreed.

        One of Judge Murguia’s decisions, however, has raised some concern within the
environmental community. In Wilderness Watch v. U.S. Fish and Wildlife Services, Judge
Murguia ruled against several environmental organizations who sued to remove water tanks that
had been constructed inside a federally designated wilderness area.9 Several sportsmen’s groups
joined the government in opposing the lawsuit because the tanks provided water for desert big
horn sheep and other wildlife. In ruling against the environmental groups, Judge Murguia held
that the Fish and Wildlife Service’s decision to construct the tanks using motorized equipment
did not violate the Wilderness Act, and that the agency’s actions did not require public notice
and comment under the National Environmental Policy Act because they were undertaken
pursuant to an appropriate categorical exemption.

  EOUSA Press Release, Mary Murguia Named Director of the Executive Office for United States Attorneys (Sept.
13, 1999) available at 99/September/407eousa.htm.
  2008 U.S. Dist. LEXIS 17517 (D. Ariz. Mar. 5, 2008).
  Id. at *44.
  Id. at *22.
  See 2008 U.S. Dist. LEXIS 32947 (D. Ariz. Apr. 10, 2008) (later published decision in same case).
  Uranium exploration: Feds to do study on Grand Canyon mining, TUCSON CITIZEN, Sept. 26, 2008.
  2008 U.S. Dist. LEXIS 70548 (D. Ariz. Sept. 5, 2008).


        Judge Murguia has a strong record on Fair Labor Standards Act (“FLSA”) cases. In
Gonzalez v. Tanimura she granted summary judgment for a group of seasonal agricultural
workers in a FLSA action against their employer.10 The plaintiffs picked crops in rural areas,
and often arrived for work before dawn. On some winter days they had to wait for ice to melt off
of the crops before they could begin their harvest. Their employer refused to pay them for the
time they spent waiting for the ice to melt, even though they were often many miles from their
homes and had limited means of transportation. Judge Murguia ruled that the employees must be

        In Stickle v. SCI W. Mkt. Support Ctr. the Plaintiff employees alleged that the defendant
employer both failed to pay them adequate wages and failed to maintain the appropriate records
necessary to determine employee benefits. The defendants moved to dismiss plaintiffs’ FLSA
claims, arguing that another federal judge considering similar claims between the same parties
had found that plaintiffs’ complaint did not meet the Twombly pleading standard.11 Judge
Murguia distinguished the other case and denied the motion to dismiss, finding that the plaintiffs
had met Twombly’s “plausibility” test.12

        Judge Murguia has also handled a number of Labor Management Relations Act
(“LMRA”) cases. For instance, in Marceau v. Int’l Bhd. of Elec. Workers Judge Murguia wrote
a lengthy, detailed opinion in a complex labor and employment case in which the plaintiffs had
sued their employer, several co-workers who were union agents, and their co-workers’ union,
asserting claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and
under the LMRA.13 In a carefully considered opinion, Murguia granted in part and denied in part
the defendants’ motion for summary judgment, allowing some of the claims against the union
agents and the employer to go forward, but throwing out the claims against the union.

        Finally, in Peabody W. Coal v. United Mine Workers the plaintiff employer sought to
vacate an arbitrator’s letter award, which had sustained a union grievance regarding official
starting and quitting time, after determining that the employer had unilaterally changed a
previous collective bargaining agreement. Judge Murguia upheld the arbitrator’s award, granting
summary judgment for the defendant/counterclaimant union, and ordering the enforcement of the
arbitration agreement.14


        Judge Murguia has overseen a number immigration cases, including a high-profile class
action suit against the notorious Sheriff of Maricopa County, Joe Arpaio, alleging racial profiling
and unlawful detention of persons of Hispanic appearance and/or descent.15 In that case, after

   2008 U.S. Dist. LEXIS 83326 (D. Ariz. Sept. 30, 2008).
   2008 U.S. Dist. LEXIS 83315 (D. Ariz. Sept. 30, 2008).
   Id. at *40.
   618 F. Supp. 2d 1127 (D. Ariz. 2009).
   2003 U.S. Dist. LEXIS 10816 (D. Ariz. Feb. 22, 2003).
   Melendres v. Arpaio, 2009 U.S. Dist. LEXIS 65069 (D. Ariz. July 15, 2009).

over a year of litigation and after Judge Murguia had denied the defendants’ motion to dismiss,
defendants moved to recuse Murguia after claiming that they had just learned that her sister,
Janet Murguia, was President and CEO of the National Council of La Raza. In responding to the
motion, plaintiffs provided strong evidence that the defendants were aware of her sister’s
position, including a copy of a front-page story in The Arizona Republic—Arizona’s largest daily
circulation newspaper—published the day before the case was filed, which focused on another
lawsuit involving many of the same defendants, detailed Judge Murguia’s sibling relationship,
and contained quotes from Sheriff Arpaio and the Maricopa County Attorney. Nonetheless,
Judge Murguia—after explaining at length why she was not biased in her handling of the case—
recused herself because of a concern that her impartiality might reasonably be questioned.16

        Many of Judge Murguia’s other immigration decisions involve habeas corpus appeals.
She approached these cases thoughtfully and deliberatively, and showed a willingness to grant
appeals in cases where persons have been held in custody for many years17 and to be restrained
when appropriate.18 In habeas appeals and in other immigration matters, Judge Murguia also
closely scrutinized magistrate judges’ recommendations, occasionally overruling those

Title VII Hiring

        Judge Murguia’s slim record in preferential hiring cases suggests that she will allow such
hiring in appropriate circumstances. In EEOC v. Peabody W. Coal Co. she held that a coal
mine’s preferential hiring of Navajo Native Americans over non-Navajo Native Americans was
legal, given existing statutory authority.20 Judge Murguia ruled that EEOC’s Title VII lawsuit
against the preferential hiring failed because the conduct at issue was exempted from Title VII
by The Navajo-Hopi Rehabilitation Act of 1950. The Rehabilitation Act specifically allowed
preferential hiring of Navajos in limited circumstances, and Judge Murguia held that the type of
hiring at issue in this case was legal because the Rehabilitation Act expressly approved it. On,
appeal, however, the Ninth Circuit reversed and remanded the decision on joinder grounds.21

Race Discrimination

        Judge Murguia has ruled on relatively few race discrimination claims. In Kennedy v.
Potter the plaintiff filed both disparate treatment based on race and hostile work environment
claims, asserting that he was treated different from other non-African American employees when

   See, e.g., Brezilien v. Crawford, 2008 U.S. Dist. LEXIS 69226 (D. Ariz. June 27, 2008) (petitioner held for more
than four years), Singh v. Crawford, 2007 U.S. Dist. LEXIS 57249 (D. Ariz. Aug. 2, 2007) (petitioner held for more
than 2 years), Ramirez v. Kane, 2008 U.S. Dist. LEXIS 68884 (D. Ariz. Sept. 4, 2008) (petitioner held for almost
two years).
   Singh v. Crawford, No. CV-06-2194-PHX-MHM, 2010 WL 1266825 (D. Ariz. Mar. 26, 2010) (denying habeas
relief as no longer applicable as the petitioner was later detained under a different charge).
    See, e.g., Adeogba v. INS, 2005 U.S. Dist. LEXIS 43542 (D. Ariz. May 2, 2005) (remanding the case back to the
Board of Immigration Appeals with instructions for further consideration of Petitioner’s claim for discretionary
relief, his request for relief under the United Nations Convention Against Torture, and his application for asylum).
   2006 U.S. Dist. LEXIS 74478 (D. Ariz. Sept. 30. 2006).
   E.E.O.C. v. Peabody Western Coal Co., No. 06-17261, 2010 WL 2572001 (9th Cir. June 23, 2010).

he was punished more severely than his colleagues for taking an unauthorized lunch break.22
Judge Murguia ruled that the plaintiff had provided more than sufficient evidence to establish
both claims.23 Accordingly, she denied the defendant’s motion for summary judgment.

Sexual Harassment and Discrimination

        Judge Murguia has a strong record on sex harassment and discrimination claims. In J.K.
v. Arizona Bd. of Regents, a high-profile Title IX and Fourteenth Amendment case, Judge
Murguia denied the defendants’ motion for summary judgment.24 The plaintiff was raped by an
Arizona State University (“ASU”) football player who had been expelled from an ASU summer
program several months earlier for sexually harassing female students. Yet, ASU allowed the
player to return to school and live in the same dormitory in which his previous sexual harassment
occurred. Plaintiff sued the school and the head football coach. Notably, a number of prominent
women’s rights advocates, including the National Women’s Law Center, filed an amicus briefs
supporting the plaintiff’s claims. In denying the football coach’s summary judgment motion,
Judge Murguia ruled that the Constitution protected an individual’s liberty interest in his or her
own bodily security, and that the football coach may have violated the plaintiff’s Fourteenth
Amendment Due Process rights by affirmatively placing her in danger by acting with deliberate
indifference to a known or obvious danger.25 In denying ASU’s motion for summary judgment
on the Title IX claims, Judge Murguia similarly ruled that a jury could find that ASU knew about
the sexual assault and harassment claims and was deliberately indifferent in responding to

         Judge Murguia has also demonstrated an ability to fairly adjudicate Title VII sex
harassment and discrimination cases. In Jerome v. Midway Holding, Inc., for instance, she
denied the defendant’s motions for summary judgment on sexual harassment and discrimination
claims, ruling that a jury could find that a supervisor’s description of the plaintiff as a “worthless
cunt” could both constitute sexual harassment and indicate a discriminatory motive in her
firing.27 In another case, Ortega-Guerin v. City of Phoenix, Murguia denied a motion for a new
trial after a jury had delivered a verdict awarding the plaintiff a large recovery on a sex
discrimination claim.28 Finally, in Cutrona v. Sun Health Corp. Murguia demonstrated a
willingness to dismiss insufficient Title VII claims when she granted the defendant’s summary
judgment motion as to the plaintiff’s sexual harassment and disparate treatment claims.29 In
Cutrona, Judge Murguia found that the plaintiff’s sex harassment claim failed because she had
not submitted evidence from which a reasonable jury could find that she was sexually harassed,
and that the plaintiff’s disparate treatment claim failed because she had not provided enough
evidence to support a reasonable inference of gender discrimination.30

   Kennedy v. Potter, CV04-1845 PHXMHM, 2007 WL 926958 (D. Ariz. Mar. 23, 2007)
   2008 U.S. Dist. LEXIS (D. Ariz. Sept. 29, 2008).
   Id. at *17.
   Id. at *42-55.
   2007 U.S. Dist. LEXIS 24102 (D. Ariz. Mar. 29, 2007).
   2006 U.S. Dist. LEXIS 59408 (D. Ariz. Aug. 14, 2006).
   2008 U.S. Dist. LEXIS 83318 (D. Ariz. Sept. 26, 2008).
   Id. at *37-45.

Reproductive Rights

          Judge Murguia has a very limited record on reproductive rights. She has authored only
one opinion mentioning choice, but in that opinion she described it as a “fundamental right.”31
Additionally, in responses to written questions following her nomination to the federal district
court, she cited Griswold v. Connecticut32 as an example of when courts look to sources outside
the plain text of the Constitution for guidance resolving difficult legal questions. Specifically,
Senator Sessions asked, “In your view, what are the sources of law and methods of interpretation
used in reaching the Court’s judgment in the following cases? How does the use of sources of
law impact the scope of the judicial power and the federal government’s power under Article
III?”33 She responded, “[i]n Griswold, the Court held that a Connecticut law barring the use of
contraceptives by married couples violated the substantive component of the Due Process Clause
. . . the Supreme Court looked to sources other than the plain text of the Constitution in rendering
its decision.”34

Death Penalty

        Judge Murguia is neither personally nor professionally opposed to the death penalty. At
her district court confirmation hearing, Senator Kyl asked her whether she had “any legal or
moral beliefs which would inhibit or prevent you from imposing or upholding a death sentence
in any criminal case that might come before you as a Federal judge?”35 She responded that “the
Supreme Court has found the death penalty to be constitutional. There is nothing in my personal
views that would prevent me from following the law.”36 While on the district court, Judge
Murguia has addressed five habeas death penalty appeals, including one trial.37 In each of the
appeals, she took an exhaustive look at the merits of the case, but ultimately ruled against the
appellant on all dispositive motions.

   DeGroote v. City of Mesa, 2009 U.S. Dist. LEXIS 15082 (D. Ariz. Feb. 25, 2009) (“Fundamental rights include
only those guaranteed by the Bill of Rights and those rights that are ‘deeply rooted in this Nation's history and
tradition.’ Washington v. Glucksberg, 521 U.S. 702 (1997). These rights include the right to marry to have children,
to direct the education and upbringing of one’s children, to privacy, to use conception, to bodily integrity and to
abortion. Id. at 720.”).
   381 U.S. 479 (1965).
   Confirmation Hearings on Federal Appointments, S. Hrg. 106-399, Pt. 3, May 25, June 15, July 12, and July 25,
2000, Serial No. J-106-33, Before the S. Comm. on the Judiciary, 106th Cong. (2000).
   Confirmation Hearings on Federal Appointments, S. Hrg. 106-399, Pt. 3, May 25, June 15, July 12, and July 25,
2000, Serial No. J-106-33, Before the S. Comm. on the Judiciary, 106th Cong. (2000).
   See Nash v. Schriro, 2006 U.S. Dist. LEXIS 47804 (D. Ariz. July 7, 2006); Lee v. Schriro, 2006 U.S. Dist. LEXIS
71382 (D. Ariz. Sept. 25, 2006); Stanley v. Schriro, 2006 U.S. Dist. LEXIS 71355 (D. Ariz. Sept. 27, 2006); Van
Adams v. Schriro, 2007 U.S. Dist. LEXIS 24934 (D. Ariz. Mar. 30, 2007); Towery v. Schriro, 2008 U.S. Dist.
LEXIS 89563 (D. Ariz. Sept. 30, 2009).


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