County Supervisors Want Input From Andrew Thomas on Sheriff Arpaio's Segregation of Undocumented Inmates

First, the Maricopa County Board of Supervisors strips County Attorney Andrew Thomas of the right to handle civil litigation for the county, causing Thomas to sue the board.

Now, the five-member board wants to bring Thomas in to a special meeting on Monday to get his advice on -- you guessed it -- potential civil litigation.

The issue at hand is the possible risk of Sheriff Joe Arpaio's latest publicity stunt -- the segregation of illegal immigrant jail inmates.

Max Wilson, chairman of the board, had a letter hand-delivered to Thomas this morning, (reprinted below), in which he asks Thomas to come to the meeting and advise the supervisors "about the legal implications and potential financial risk to the county resulting from the sheriff's actions."

The county has decided to outsource its other civil litigation matters, and the reason why the officials now want Thomas' opinion seems obvious:

To embarrass him and the sheriff.

Thomas and Arpaio have been close political allies in the last four years, and nowhere has that been more obvious than the tag-team assault on the supervisors that ramped up following the indictment of County Supervisor Don Stapley.

But Thomas drew a line in the sand yesterday, and Arpaio was left standing on the other side. The county attorney has been fighting a legal battle for a couple of years against the county Superior Court's use of a separate legal system for Spanish-speaking DUI defendants. Thomas now also takes issue with segregating inmates based on their immigration status.

"It's a matter of principle, and we have to be consistent," one of Thomas' top aides, Barnett Lotstein, tells New Times.

The principle stands even though the segregation isn't based on ethnicity or race, Lotstein says. In the DUI case, the defense argued against Thomas' position that the special DUI courts didn't segregate by race, but only by language. Lotstein says Thomas believes the result of such legal finessing -- both in terms of immigration status or language segregation -- would still look like racial segregation.

And Thomas has a point on this one. After all, just imagine the outcry if a public school system decided to open an elementary school just for "Spanish-speakers." There's little doubt many folks would see that as an under-handed attempt to separate students by ethnicity.

There's also little doubt Arpaio's inmate segregation could lead to a lawsuit. (What can't lead to a lawsuit these days?) That's definitely something on which the county needs to seek legal advice. But putting Thomas on the spot to give legal advice in a public setting -- that's the type of media-friendly move we usually see from -- hmm, let's think -- Arpaio and Thomas. Remember the way they showboated the investigation of state Attorney General Terry Goddard?

Lotstein says of Wilson's letter: "It seems to us it's more like a publicity stunt than a legit request for legal advice."

He adds it's even possible that, by having such a public discussion of the potential of lawsuits over Arpaio's plan, it may encourage people to sue.

Of course, that actually may be a good thing, depending on where you stand on the issue.

Now, you may be wondering why, if Thomas cares so much, he's not suing Arpaio like he's suing the court system over the DUI thing.

We sort of assume it has something to do with the strong political bonds between Arpaio and Thomas. Lotstein denies that, saying the real reason is that Thomas has weak legal standing to sue on the inmate issue.

In order to push forward a lawsuit, you have to prove you've been affected negatively by the issue at hand. Lotstein says the county attorney's office has "legal standing" in the DUI case because its employees have been forced to attend the special court trials as prosecutors, but that's one of the matters in dispute. The U.S. 9th Circuit Court of Appeals has the issue under advisement.

With the inmate segregation, no such legal standing or proof of harm can be alleged, Lotstein says. Individual inmates may be harmed by the policy, but not necessarily the county attorney's office. On the other hand, if the 9th Circuit Court ruled in Thomas' favor in the DUI case, it could bolster a potential claim to legal standing in the inmate case, Lotstein says. Nevertheless, Lotstein won't say whether Thomas would sue Arpaio eventually over the segregation policy.

Lotstein says he can't confirm whether or not Thomas plans to be at the supervisors' meeting.

Valley Fever will be there either way.

Text of Wilson's letter to Thomas follows:

I am very concerned about the potential financial implications to Maricopa County of the recent actions by the Maricopa County sheriff to segregate inmates who are undocumented immigrants from the general jail population. I am aware that you have been quoted in the Arizona Republic newspaper on Friday, 2/6/09, by stating "I believe that racial and ethnic segregation by the government is unconstitutional."

If this is the case, issues of potential liability and the related financial risk to Maricopa County are clearly implicated. It is urgent and I request that you personally appear at a special meeting of the Board of Supervisors I have scheduled on Monday, February 9, at 2 p.m., to advise the board about the legal implications and potential financial risk to the county resulting from the sheriff's actions.



Max Wilson

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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.