Mark Moran

Judge Mark Moran.

The lawsuit against the Coconino County Sheriff’s Office’s policy of honoring Immigration and Customs Enforcement detainers is facing dismissal in the Coconino County Superior Court.

On Monday afternoon, Judge Mark Moran heard a series of arguments over a several-hour hearing about Jose Montelongo-Morales' case. The arguments spanned Montelongo-Morales' ability to be a part of the proceedings, and whether the case had been previously settled out of court. Moran also heard arguments about whether the case could qualify as a class action lawsuit.

Moran's decision could lead to the survival or dismissal of the case against the Sheriff's Office's ICE policy on whether an ICE detainer request can replace probable cause or a judicial warrant to prolong an inmate's detention.

Montelongo-Morales was held after being arrested on a warrant for failing to pay fines after an extreme DUI conviction. The ICE detainer that held Montelongo-Morales in detention facility custody was eventually dropped in February. Montelongo-Morales posted bond and was taken out of custody later that month by family members.

In late April, Montelongo-Morales was found and taken into ICE custody after two raids by the agency in Flagstaff and Sedona, according to his attorney Lee Phillips. The raids targeted several of his family members in Flagstaff, and ICE officials eventually found Montelongo-Morales in Sedona.

Witnesses at the scene allege that ICE officials exchanged Montelongo-Morales’ capture for the safety of his family members. Lee Phillips, one of Montelongo-Morales’ attorneys in the case, said that Montelongo-Morales's detention by ICE officials continues to make their ability to continue the case “unclear.”

“Once someone disappears into ICE detention, it’s almost impossible to get them back for a court hearing,” Phillips said.

The loss of Montelongo-Morales at this point in time further complicates his lawyers’ push to make the case a class-action lawsuit. Class action suits involve a group of people with the same or similar injuries caused by the same action.

Turning the case into a class-action lawsuit would allow Montelongo-Morales’ lawyers to proceed without his presence, and act on behalf of the alleged group of victims made by the Sheriff’s Office ICE detainer policy.

Michele Molinario, a lawyer for Driscoll and Figueroa, opposed the class action motion in court Monday, saying Montelongo-Morales is out of Sheriff’s Office custody and therefore cannot represent those impacted by the detainer policy.

A signature

Moran additionally will have to decide whether both parties were legally in agreement to settle the case before Montelongo-Morales was released from jail. The question hinges upon the power of a signature — namely, Montelongo-Morales’ — because he never signed the final settlement agreement.

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If Moran decides that both team's lawyers engaged in actions that amounted to a final settlement, then the case will be completed and closed based on that agreement.

In court, John Masterson, an attorney for Driscoll and Figueroa, argued that the agreement did not require signatures from both parties, because they accepted a “final agreed upon” counter-offer from Montelongo-Morales’ lawyers.

“You don’t need signature of plaintiff if plaintiff’s lawyers have apparent authority,” Masterson said of Montelongo-Morales’ lawyers.

However, Kathleen Brody, a lawyer for Montelongo-Morales, emphasized the importance of her client's missing signature. In court, she quoted an email from Masterson when the lawyer learned Montelongo-Morales was going to be released from jail to show that Masterson valued the importance of Montelongo-Morales' signature as well.

“I understand that Mr. Montelongo is bonding out. If we do not have a signed agreement, we will be contacting ICE. Do we have a signed agreement?” Masterson wrote in an email the day of Montelongo-Morales’ release, according to court documents.

Moran asked questions about the terms of the settlement agreement, like what benefit Montelongo-Morales would receive by signing and what the purpose of the client’s signature was.

It is not clear at this time how long it will take Moran to make a decision on the motions before him in this case.

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