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You and What Army?

My recent prediction was wrong, and for a moment, being wrong never felt so good. Judge Donahoe of the Maricopa County Superior Court held Deputy Stoddard of the Maricopa County Sheriff’s Office in contempt for rifling through a defense lawyer’s file in court. Here is the minute entry.

Judge Donahoe’s order was unusual though, as Deputy Stoddard wasn’t fined or sentenced to a definite jail term as a result of his contempt. It wasn’t punitive, criminal contempt. Instead, it was civil contempt. The point was to coerce Deputy Stoddard to hold a press conference and apologize to the defense lawyer. The defense lawyer must be satisfied with the apology in order for Deputy Stoddard to avoid jail.

The court’s order was strange, but that wasn’t the biggest problem. It seems Judge Donahoe forgot an important fact. In Maricopa County, you see, one man above all others gets to decide who does or does not hold a press conference. That man, Sheriff Joe, immediately spoke up and made that important fact abundantly clear. The Maricopa County Attorney’s Office confirmed that there would be no press conference, adding that Deputy Stoddard would not be going to jail.

I’ve been slow posting about this because I’m inclined to think that Sheriff Joe and the county attorney are going to win this standoff. I doubt Deputy Stoddard will have to obey the court order. As I mentioned in my previous post, the last time a superior court judge ruled against him in something this well-publicized, Sheriff Joe eventually won on special action. I’m willing to bet Judge Donahoe’s order gets reviewed by the court of appeals, and I’m willing to bet Sheriff Joe comes out on top. However, I hope I’m wrong again. I’ll be pretty disappointed if a higher court vacates the contempt order and all of this turns out to be for naught.

If Judge Donahoe’s order isn’t vacated, though, things may get interesting. Last time I checked, Judge Donahoe didn’t have officers, guns, or jails of his own. Sheriff Joe has all of those in spades. He even has a tank. Arizona’s appellate court and supreme court can’t compete either. What if the order doesn’t get vacated and the sheriff and Deputy Stoddard just ignore it? Who will make them comply? Can anyone think of any similar situation like this in the past? Has a sheriff ever blatantly refused to obey the order of a court with jurisdiction over him?

I keep imagining Sheriff Joe holding a press conference announcing that he has started fortifying Maricopa County to hold off federal or state intervention. Perhaps he’ll begin stockpiling nuclear weapons as well. Could this be the start of secession? Will Maricopa County become its own state? Its own country? If that happens, I’m formally announcing that I’m moving elsewhere.

All joking aside, I really don’t see any chance of Sheriff Joe giving in. Deputy Stoddard may not even understand why what he did was wrong, and doing it probably wasn’t his idea in the first place. I hate to say it, but Sheriff Joe may be at least partially right. Deputy Stoddard was likely just doing his job. He was violating the constitution the way he was ordered to do it, and even if he did hold a press conference and apologize, I don’t see how his apology could be sufficient. I’d almost feel bad for him, having to pretend to be sorry for following orders, doing something everyone around him thinks is no big deal or maybe even part of his job.

I’m no expert, but holding the Sheriff’s Office itself in direct criminal contempt and ordering that it pay a massive fine to the court seems like a more appropriate remedy. If Deputy Stoddard was just following orders, sanctioning him personally does very little to prevent similar misconduct in the future. I wouldn’t be surprised if he’s already become something of a hero among other deputies. Sheriff Joe may be experiencing increased popularity in his own office for standing behind one of his men.

Sticking it to the office under some kind of respondeat superior theory of liability, if that’s possible in contempt cases, might make the people of Arizona take constitutional violations a little more seriously. Of course, on the other hand, it might just mean that the judge issuing the order gets booted out when the next retention election comes along. I hope Arizona’s population isn’t that incapable of seeing things how they are.

Something has to give, and it probably isn’t going to be our steel-willed sheriff. If he really isn’t going to back down, I doubt that Judge Donahoe’s order is going to make it through appellate review. A few lawyers have told me the view this as a Marbury v. Madison situation, as if the concept of judicial review itself was in jeopardy. I think that’s an exaggeration, but the power and resolve of our courts are surely being tested to some extent.

If the courts try to call Sheriff Joe’s bluff and force Deputy Stoddard to apologize, what happens if Sheriff Joe turns out not to be bluffing? Judicial review of the actions of the executive here in Arizona probably isn’t going away, but I can see why some people think the power and willingness of the courts to enforce their orders involving the executive is at risk.

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12 Responses to "You and What Army?"

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  4. adrian says:

    Oh it gets even more interesting. ..sick detention officers and bomb threats. http://www.heatcity.com

  5. Andrew Becke says:

    I imagine you’ve heard that the Deputy has refused to issue the apology. I’ll be interested to hear how the contempt hearing goes.

  6. mahtso says:

    Thanks, Mr. Brown.

  7. Matt Brown says:

    I feel pretty confident saying that the order is legally defective. Mark Bennett’s explanation why is great.

    I also do worry about the willingness of the judges on the Court of Appeals, Division One, to disagree with the sheriff. They’re good judges, but they work in his county and he’s shown multiple times that he’s not above investigating other government officials.

    You bring up a good point about Joanne Cuccia being the final word on whether or not Deputy Stoddard’s contempt is purged, and Donahoe may just have assumed she’d accept it and ignore the implications of her refusing. That may turn out to be another big flaw in the order.

    As for Deputy Stoddard being ordered to violate the constitution, I have no way of knowing that for sure either way. I’m pretty skeptical about him just deciding to look through that file and make those copies on that particular day though…

  8. mahtso says:

    It is not clear to me why you think the courts will not uphold the order. Do you think the order is legally defective? Or that judges on the Court of Appeals would reach the wrong conclusion because Sheriff Arpaio is involved? Or???

    I admit to being out of my element, but I find it incredible that a judge has put the power to keep a man in jail in the hands of Ms. Cuccia, a private citizen. I thought that when someone is found in civil contempt they “hold the key” to get out of jail because all they have to do is comply with the court order. That is not the case here, because Ms. Cuccia holds the power to keep the Officer in jail, regardless of what the Officer does.

    “[Deputy Stoddard] was violating the constitution the way he was ordered to do it….” How do you know this?

  9. Matt Brown says:

    I doubt anything other than these contempt proceedings is going to happen. Whether there’s grounds for a civil suit or not, there probably aren’t enough damages to make one worthwhile.

  10. Jay says:

    OK, I’m probably being a n00b (honestly cannot think of a better term, presently), but does the defense attorney whose papers were taken have any legal redress? Can she, perhaps citing the judge’s ruling, file a lawsuit against the officer or the Sheriff’s department?

  11. Mark Bennett says:

    I’m still waiting for the call to represent Deputy Stoddard in this comedy of errors, but Sheriff Joe has probably realized it’s cheaper (not to mention much more dramatic) to secede than to hire me.

  12. Jeff Gamso says:

    It’s pretty clear (and Mark Bennett actually did the two minutes of research to show it) that Stoddard should have been held in criminal rather than civil contempt – which would have led to fine or jail as punishment rather than the faux apology Donahoe ordered.

    But enforcement is always an issue. When the Supreme Court denied Georgia’s attempt to seize Cherokee lands (Wooster v. Georgia), a defiant President Jackson is said (although it’s probably apocryphal) to have responded, “John Marshall has made his decision; now let him enforce it.” Regardless of whether he said it, Jackson sent in troops to remove the Cherokee demonstrating that he meant it. And after Brown v. Board of Education, the schools in Little Rock, Arkansas got integrated only because President Eisenhower sent in troops to enforce the Court’s orders.

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