Is Maricopa County responsible when the sheriff's office or county attorney's office fail to release documents to lawyers or the public?
A federal judge believes so, but County Attorney Bill Montgomery has a different opinion.
That esoteric, yet important, question was hashed out yesterday in federal court by Montgomery and U.S. District Court Judge Neil Wake as part of a lawsuit against the county by megarich, ex-con developer Conley Wolfswinkel. The landowner, who received probation after a 1993 conviction for check kiting, is suing along with county officials like former judge Gary Donahoe because of unethical investigations launched by Sheriff Joe Arpaio and former county attorney Andrew Thomas.
Wolfwinkel's attorney, Lawrence Wright, has been trying for months to get the county to turn over documents from the sheriff's and county attorney's offices.
The records that were sought by Wright are related to the fishy 2009 search warrant served against Wolfswinkel's company in Mesa. The sheriff's office claimed back then that it was trying to find a link between Wolfswinkel and County Supervisor Don Stapley, but even a veteran sheriff's office employee thought the search warrant was more aimed at getting publicity for Arpaio. No evidence of wrongdoing was found on the part of Wolfswinkel, his family members or the family's companies.
In May, Judge Wake ruled that since the county pays the bill if the county attorney or sheriff loses a lawsuit, the county is ultimately liable if those officials fail to turn over the records for which they are legally obligated to release.
The ruling led to the awkward situation last month in which the county had to serve a subpoena on the county attorney's office in order to force it to turn over the records Wright had requested.
Montgomery's office did turn over the records as required, (Wright wouldn't tell us what they concerned, specifically.) But Montgomery doesn't want that to set a precedent, and the county filed a motion on his behalf to try and convince Wake to reconsider his order. An oral argument on the matter was held yesterday, and Montgomery accepted Wake's invitation to come down and explain his points personally.
Before Montgomery spoke, attorney Jeffrey Leonard - a private lawyer hired by the county to handle the lawsuit -- told Wake that the county's liability in the suit wasn't settled, meaning that the county shouldn't be held responsible for the county attorney's office's failure to turn over records.
But Wake didn't buy it, asking Leonard who would be responsible, if not the county. "No one?" the judge challenged Leonard. "All the consequences seem to be absurd."
Montgomery, when it was his time to speak, began by admitting that the production of documents in the case had been "frustrated" because of the dispute over who was responsible.
"Whatever nonsense occurred before, no more," he said.
Still, Montgomery made it plain he wasn't keen on the idea of having the county considered to be the ultimate owner of his office's records.
Montgomery told the judge that his office has two very distinct roles. On one hand, it's the attorney for the county and Board of Supervisors. On the other hand, it's also a prosecution agency.
The conflict between those two roles turned into a source of epic friction between the previous county attorney, Andrew Thomas, and the Board of Supervisors. The Board fired Thomas in 2009 as its attorney after Stapley was indicted, in large part due to a lack of trust.
The feud between the county and the county attorney's office ended after Montgomery took office in 2010. But Montgomery is concerned that if the county can force him to turn over records his agency gathered in prosecution mode, that process could be abused.
Wake told him not to worry about it. A judge would determine if any "inappropriate intrusion" occurred when records were turned over to an antagonist in a lawsuit.
However, Montgomery said he would prefer that if someone is suing the county and his office, that plaintiff would subpoena the county attorney's office directly if he or she needed records from his office.
The judge wasn't buying that one, either. He noted that under court rules, stiff sanctions could be levied against a lawsuit party for failing to turn over records as part of the legal discovery process. Using a subpoena wouldn't be as effective and would hamper a plaintiffs ability to get records, the judge said.
Wake said he would consider naming Montgomery, in his official capacity, as a defendant in the lawsuit, which would force the county attorney's office to adhere to the rules of discovery. Montgomery had previously been named as a defendant, but Wake dismissed him from the lawsuit because the problem had stemmed from the actions of Thomas, not Montgomery. Wake said he didn't think at the time that dismissing Montgomery would have any effect, but now he realizes it had a major effect in the way the discovery process of the lawsuit would be handled.
Montgomery didn't like that idea, saying that the public would see his name in the suit and assume he had been involved with the allegations levied by Wolfwinkel.
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Wright, meanwhile, told Wake that his client prefers to have Montgomery reinserted into the case because it would "sidestep" any intra-agency feuding over who's responsible for turning over records.
The judge took the arguments under advisement.
What this means to you and me is that if the county attorney or sheriff refuse to turn over documents, the county might be legally required to force the issue. No more "nonsense."
The Wolfswinkel case is currently set for trial on May 28, 2013.