Dave Hendershott, Lisa Aubuchon, and their lawyer, Ed Moriarity, face about $210,000 in sanctions and fees stemming from a failed lawsuit related to their long fight with the county.
Hendershott and Aubuchon were key players in the fight against the county launched by their bosses, Sheriff Joe Arpaio and former County Attorney Andrew Thomas. Incompetent lawsuits and criminal complaints were filed against county officials, lawyers, judges, and other people they claimed were corrupt.
But the law officials lost the war, and their political enemies gained the upper hand. Thomas and Aubuchon were disbarred for abusing their authority. Hendershott, Arpaio's most trusted top deputy, was booted from his job after an internal investigation showed he'd committed numerous policy violations and potential crimes, many of them related to the ethics-bending fight with the county.
Pushing back against the damning allegations against them, Hendershott and Aubuchon filed a wide-ranging lawsuit in August of 2011 against all five county supervisors, county officials, lawyers Edward Novak and Thomas Irvine, the latter two's law firm (Polsinelli Shughart PC), the state of Arizona, and the current and former state attorney general. They accused the defendants of defamation, wrongful termination, and conspiring against them.
But on May 4, Maricopa County Superior Court Judge Sally Schneider Duncan dismissed their lawsuit, finding it downright ridiculous.
"The court finds that sanctions in the form of attorney's fees is appropriate," Duncan wrote in her order. "No legal or factual basis ever existed to file a complaint against these defendants, and the court further finds the complaint was filed for vexatious purposes."
Lots of legal wrangling has occurred since then over the impending sanctions.
The last hearing on the matter occurred this morning in Duncan's courtroom, with Hendershott, Aubuchon, County Supervisor Andy Kunasek and lawyer Thomas Irvine attending. Ed Moriarity, the country-style, white-bearded Montana lawyer, spoke on behalf of his clients, Hendershott and Aubuchon.
No specific dollar amounts for sanctions have been requested, but Moriarity estimated it could be close to $300,000. We're not sure how he arrives at that; we're thinking about $210,000 is a better guess. Polsinelli Shughart wants about $185,000, the county's looking for $15,000 or so, and the state seeks at least $10,000, today's testimony revealed.
Moriarity's law firm, Hendershott, and Aubuchon would have to split the payment of the fees, though how they would split it -- should Judge Duncan decide to order the sanctions -- hasn't been determined.
Moriarity told Duncan he thinks the fees are unrealistic and aren't legally justified. Having to pay $300,000 "would basically wipe me out," he said, his voice wavering. That prompted Marty Harper, Polsinelli Shughart's lawyer, to later opine to Duncan that Moriarity "sounds scared -- he ought to sound scared."
Mike Frazelle, lawyer for Kunasek and other county officials, noted that the lawsuit was so full of defects, it had no reasonable or justifiable basis for being filed.
"They just have to know better than this," Frazelle said of Hendershott, Aubuchon, Moriarity, and his law firm.
Driving that point home, Moriarity admitted to Duncan that an earlier version of the suit contained "wild allegations" that had been omitted in a subsequent filing. But he insisted the lawsuit wasn't frivolous.
Duncan, whose May order already indicated that sanctions are appropriate, didn't seem impressed by any argument Moriarity made. She took all of the arguments under advisement and is expected to make a decision in a few days. Once she orders that sanctions will be levied, the defendants' lawyers will submit official requests for the amount they feel is owed, and Duncan will eventually approve a figure.
Hendershott, dressed in a striped suit, managed to give us the slip before we could ask him questions. Aubuchon declined comment.
On the steps of the court building on Jefferson Street, Moriarity told New Times he has no regrets in defending Hendershott and Aubuchon, who he claims were just doing what they "thought was right" in the fight with the county. We asked him if it were true, as he told the judge, that he'd be wiped out by the sanctions. We don't buy it, in part because we recall a 2001 article in Forbes we'd seen previously about a 248-acre property -- complete with a 15,000-square-foot mansion -- Moriarity owns in Montana.
Still, Moriarity told us the sanctions could "put me in very dire financial straits."
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For sure, representing these county characters already has been costly for the "world-renowned" trial lawyer.
In late May, Moriarity quit as Aubuchon's pro bono lawyer in her State Bar disciplinary case because, he said, his firm could no longer afford to represent her. He and his partner, Bradley Booke, had also paid about $100,000 from their own pockets for "case-related costs," Moriarity said at the time.
Hendershott and Aubuchon, as we understand it, have no ranch properties or other major assets to offset six-digit sanctions, should they end up having to swallow a fair share of the possible order. Hendershott's not doing too poorly, since he has a decent pension on which to rely, but he lost his own mansion to foreclosure in 2010 and moved to a luxury rental home.
Aubuchon, who's appealing her disbarment, has her own financial woes. She can't practice law during the appeal, and she and her husband -- Peter Pestalozzi, who had sued the county along with Aubuchon and Hendershott -- owed more than $40,000 in back taxes as of May.