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Legal Strategery in Marikafka County

Adam Stoddard is probably still in jail. If you need some background, catch up here, here, and here. Maricopa County has seen bomb threats and pepper spray incidents that may be related to his detention, as well as a law enforcement rally and vigil showing support for him. Meanwhile, deputy county attorney Tom Liddy, who still seems to be counsel for Stoddard, makes what could at best be called weak offering in his defense. Will disclosing the contents of the documents Stoddard illegally viewed and seized really help get him out any sooner? It seems Liddy, who claims to represent Stoddard and not the sheriff, is more concerned about making a joke out of the fourth, fifth, sixth, and fourteenth amendments than he is about helping his client.

Liddy’s newest filing, which you can peruse here, is confusing for a number of reasons. It looks like Liddy’s work is officially being done by private counsel, Michele Iafrate, a former attorney with his office. The filing lists only her name above the caption, then lists her name first where signatures go. She also appears to be signing on his behalf, though for all I know, she may by signing above his name and writing “for” because she now represents Liddy. If that’s the case, it’s awfully sad that Stoddard’s lawyer gets a lawyer while Stoddard is stuck being represented by an office that, given its close ties to Stoddard’s boss, may have a serious conflict of interest.

Mostly, the filing is strange because it’s being filed in Donahoe’s court. My post-conviction relief clients, whose petitions must be filed with the trial court, are smart enough to know that their best bet for relief is with a different court. They can’t wait for review by an appellate court. It could be that I have uncommonly bright clients, but the county attorney should certainly be able to figure that out too.

The filing is also unusual in that it acknowledges that a special action is going to be filed, but it says nothing very specific, and certainly nothing convincing, about why the privileged documents need to be unsealed before that can happen. My guess is that Stoddard was ordered to pull the documents and copy them as part of some fishing expedition. He did his best to justify it, but because he had no good reason to do it in the first place, the county attorney now needs to view the documents to pick them apart and fabricate some kind of elaborate defense showing the sheriff’s office was in fact foiling some evil conspiracy, or at least preventing some minor threat.

Without the documents, attacking Donahoe’s ruling shouldn’t be that hard. Facts aside, the law seems against Donahoe. He should have held Stoddard in direct criminal contempt. I’ve said it, as did Mark Bennett before me. Now, it’s just one big mess. No one seems to agree about when Stoddard was held in contempt, or even if he is or has ever been in contempt.

I’ve heard a few people say Donahoe never actually held Stoddard in contempt. They argue the wording of the order was misleading and that Donahoe just ordered Stoddard to apologize, threatening contempt and jail should he refuse to comply. If Donahoe just issued an order to apologize then held Stoddard in contempt after the unapologetic press conference, they might have a point. The problem is that Donahoe said, “IT IS FURTHER ORDERED holding Detention Officer Adam Stoddard in indirect civil contempt of court.” I’m not sold.

Also, some people are now claiming Stoddard is really in indirect civil contempt, making Donahoe’s order accurate. Others are claiming he isn’t in contempt at all. People claiming he isn’t in contempt cite the fact he was ordered to jail and went. People on the other side claim the order was to apologize, that the way to avoid contempt was to apologize, and that not apologizing would result in Stoddard being in contempt and having to go to jail. Again, I’m not sold. Donahoe’s order made it clear Stoddard was in fact in contempt and that apologizing merely purged that finding.

In general, contempt in Arizona isn’t terribly complex. Here’s what our Supreme Court said:

Criminal contempt is the commission of a disrespectful act directed at the court itself which obstructs justice; civil contempt is the disobedience of a court order directing an act for the benefit or advantage of the opposing party to the litigation. Also, the same acts may be both criminal contempt and civil contempt, and quite often are. The classification of contempt as criminal, civil, direct or indirect is merely a judicial device for determining the procedure to follow in each case. We are satisfied that we are dealing with a criminal contempt as the primary purpose of respondent’s action was to punish for petitioner’s alleged disrespect to the court and attempted obstruction of justice.

Ong Hing v. Thurston, 101 Ariz. 92, 98 (1966) (internal citations and quotations omitted). Other cases more thoroughly analyze whether specific circumstances constitute contempt, but that’s the best general explanation. From what I can tell, none of the more specific cases, even the one Donahoe cited, does a great deal to support the contempt finding or classification in Stoddard’s case.

Based on the law and the facts publicly available at this point, without looking at the privileged documents at all, isn’t it at least possible that there’s enough to convince another court that Donahoe abused his discretion? How much of a difference will the contents of the documents, which Stoddard can’t even recall, have on the outcome? Donahoe abused his discretion if he misapplied the law or predicated his decision on incorrect legal principles, and Stoddard has a decent argument he did. What Stoddard’s lawyer filed was too little. As Lozano’s lawyer explained, it’s also too late.

Everything I know about this case comes from the news sources and commentary I’ve cited here, so I’m no expert. However, it looks like Liddy had more than enough to file a special action before Stoddard surrendered.

In Arizona, the term “special action” encompasses a number of different things. Basically, it’s the vehicle used in Arizona to obtain relief previously obtained against a body, officer, or person by writs of certiorari, mandamus, or prohibition. That’s explained in the rules. It was intended to simplify the process by creating one cause of action instead of a number of different, confusing writs, each with its own unique rules. Apparently, there was a lot of frustration, and different rulings often came down based on minute differences in the nature of the filing. I wasn’t practicing here before they were consolidated, so I can’t really say if things are any better now.

Special actions are rarely granted because jurisdiction is highly discretionary. It’s appropriate when no equally plain, speedy, and adequate remedy is available, and a special action can be accepted when under no rule of law can a trial court’s actions be justified. I understand that each division of the court of appeals rejects about ninety percent of special actions. In Stoddard’s case, though, a special action would have had a far higher than normal likelihood of being accepted because civil contempt orders are not appealable, with very few exceptions. The case law makes it clear that the review remedy is special action.

Liddy could have filed a special action as soon as Donahoe made his ruling, well before Stoddard had to apologize or go to jail. To request a stay from the court of appeals in a special action, you only have to request one below. Liddy did that. He had a chance to ask another court for more time, but he didn’t. Stoddard went to jail. Why?

To some extent, I can see why Liddy would want some time before filing a special action. There is no record other than what you create and provide, so he’ll want a transcript of proceedings or at least a recording. Did he immediately request either of those? Does Liddy really think the document is that big a deal, or was it really just a fishing expedition Liddy now has to justify? Is he just showing everyone how little he values our rights? Even if Donahoe ends up being a little off on his ruling about unsealing the documents, I see the face of Donahoe’s contempt order as the better issue.

If Liddy’s objective was to keep his client out of jail, his strategy for achieving that seems highly ineffective. I can’t imagine the thought of avoiding jail for Stoddard was that much of a concern for Liddy, or he would’ve handled this very differently. On the other hand, if his objective was to get press for the sheriff’s office or continue showing utter disregard for attorney-client privilege and the constitution, I’d say he’s doing a great job.

Now that Stoddard is in jail, the relief remedy is likely still a special action. Civil contempt can become criminal contempt when someone has refused to comply for long enough, and criminal contempt is specifically appealable by statute. However, Stoddard will probably spend an awful lot of time in jail before that happens. I only see Liddy waiting a while and filing an appeal on those jurisdictional grounds if his goal really is to maximize jail for his client.

You may be wondering why the word “habeas” hasn’t come up much in all of this. In Arizona, habeas applies to someone who is “unlawfully committed, detained, confined or restrained of his liberty.” That now applies to Stoddard, but the special action is thought by many Arizona lawyers to now encompass the writ of habeas corpus as well. Although there are still specific habeas laws on the books, the bar notes for the rules on special actions call the writs replaced by the special actions “extraordinary writs,” and Article 6, Section 5 of the Arizona Constitution calls habeas corpus, quo warranto, mandamus and injunction “other extraordinary writs.” The Court of Appeals, Division Two, has flat-out said that the writ of habeas corpus has largely been replaced by the special action proceeding and our post-conviction relief rule, and smart lawyers and at least one judge who teaches a CLE on special actions believe that the special action has supplanted the state writ of habeas corpus altogether. The fact Liddy is saying he wants to file a special action on behalf of his jailed client probably shows his feelings on the subject.

It seems obvious to me that Liddy should have filed a special action and request for a stay before Stoddard surrendered. It seems obvious to me that Liddy should now file a special action or habeas petition. The sooner he files it, the sooner another court reviews Donahoe’s order. I see no benefit whatsoever in waiting for Stoddard’s detention to become appealable, criminal contempt. I seriously doubt the Court of Appeals, Division One, is going to deny special action jurisdiction when Stoddard has no other sufficient remedy. The issues with the highest likelihood of success are as good now as they’ll ever be.

This would all make sense if Liddy’s goal was to keep Stoddard in jail and in the news. That seems more like Sheriff Joe’s agenda that Stoddard’s, and I hope that isn’t the case. If it is, shame on Liddy. If it isn’t, I wonder what he’s thinking.

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