Sheriff Joe Arpaio

Judge Sam Myers of the Superior Court for Maricopa County has issued an order in regard to the report by the Pinal County Sheriff’s Office on possible misconduct by officials in the Maricopa County Sheriff’s Office. (The report was undertaken by Pinal Sheriff Paul Babeu, who today won accolades as the National Sheriff of the Year.)

News organizations had sought the public release of the complete report. Today, Judge Myers ruled that portions of the report pertaining to individuals no longer employed at the Maricopa County Sheriff’s Office may be released. The remainder—in regard to Captain Joel Fox—will remain under wraps until his disciplinary process has been completed.

Here is the minute entry in Phoenix Newspapers Inc. v. Joseph M. Arpaio, LC2011-000277-001 DT

MINUTE ENTRY

Following oral argument, the Court took under advisement Petitioners’ Complaint for Statutory Special Action and Respondent’s Motion to Dismiss.  The Court has subsequently received Post-Hearing briefs from both parties.

Sheriff Paul Babeu accepts the award for 2011 National Sheriff of the Year.

In their Complaint, Petitioners argue that the investigative report conducted by Pinal County Sheriff Paul Babeu (“Babeu report”) must be open in full to public inspection pursuant to Arizona’s Public Records Law, A.R.S. §39-121.  Respondent argues that A.R.S. §38-1101(K) prohibits full disclosure because the investigation of Mr. Fox is ongoing and the disciplinary appeal process has not concluded.

In order to analyze the proper treatment underArizona law, it is crucial to understand the nature of the Babeu report.  Sheriff Babeu was tasked with conducting an “administrative investigation concerning alleged policy violations” of three MCSO employees (Report of Administrative Investigation, page 1).  The Babeu report is not a criminal investigation; its purpose is to determine if three MCSO employees had violated MCSO policies.

Because the Babeu report is an administrative investigation of employees, Arizonalaw gives protections that would otherwise be unavailable to other “public records”.  A.R.S. §38-1101(K) states:

An employer shall not include in that portion of the personnel file of a law enforcement officer or probation officer that is available for public inspection and copying any information about an investigation until the investigation is complete or the employer has discontinued the investigation. If the law enforcement officer or probation officer has timely appealed a disciplinary action, the investigation is not complete until the conclusion of the appeal process.

Having considered the arguments of the parties, the Court interprets A.R.S. §38-1101(K) as a mandate from the legislature to protect employee investigations from public disclosure until either the investigation is closed or the appeal rights of the employee have terminated.

Following the issuance of the Babeu report, two of the three investigatory subjects have resigned from MCSO.  According to counsel for Respondent, one employee, Mr. Fox, is still involved in the disciplinary process.  For this reason, the Court finds that A.R.S. §38-1101(K) precludes the public disclosure of the Babeu report as it pertains to Mr. Fox.  However, A.R.S. §38-1101(K) is inapplicable to the two former employees, and A.R.S. §39-121 mandates the release of the report as to those two individuals.

On June 1, 2011, the Court ordered Respondent to provide in-camera a complete copy of the unredacted Babeu report and copies of the redacted public disclosures in order to determine if the redactions were properly made.  The Court was promptly provided with both versions of the report.  Having reviewed thousands of pages of the redacted report that were provided to Petitioners, the Court cannot find that the redactions are inappropriate.  Respondents were tasked with the difficult job of protecting the Fox investigation while releasing the remainder of the report.  The Court finds that Respondents have acted in compliance with A.R.S. §38-1101(K).

In regard to Respondent’s Motion to Dismiss, the Court finds no basis upon which to dismiss Petitioners’ action.  The Babeu report is a public record that, upon completion of Mr. Fox’s disciplinary process, will be disclosed in full to the public.  The Court finds that Petitioner’s action is legitimate and, though temporarily denied in part, will ultimately be granted in full.

IT IS ORDERED accepting jurisdiction of Petitioners’ Complaint for Statutory Special Action.

IT IS FURTHER ORDERED granting relief in part, as outlined above, to Petitioners’ Complaint for Statutory Special Action.

IT IS FURTHER ORDERED that, within thirty (30) days of the expiration of Mr. Fox’s disciplinary appeal rights, that Respondent shall provide the complete unredacted report to Petitioners.

IT IS FURTHER ORDERED denying Respondent’s Motion to Dismiss.

An Arizona story that may only rate B-section coverage today in the newspaper and among readers’ attention is one that tells a variety of tales about the state’s legal community.

The story reports that the State Bar of Arizona has filed a formal complaint against the Apache County Attorney and his former chief deputy attorney. The allegations stem from inappropriate conversations with and pressure on a defendant in custody, out of the presence of his lawyer. According to the Bar’s allegations, the interview was ordered by County Attorney Michael Whiting and his chief deputy Martin Brannan.

So egregious was the conduct, Superior Court Judge Donna Grimsley found, that she dismissed the first-degree murder charges with prejudice.

Here is the story about the Bar complaint.

But there is far more to it than that. And to know that, you need only search the White Mountain Independent—or even the pages of the Arizona Republic.

There, you will find that the prohibited interview was performed by two investigators, including Brian Hounshell.

Apache County Attorney Michael Whiting outside the courthouse in St. Johns, Ariz., June 16, 2009. (AP Photo/Felicia Fonseca)

Does his name sound familiar? That may be because he is the former Apache County Sheriff. He eventually lost his job after being indicted in 2005 by the Arizona Attorney General for misuse of public monies, as well as “fraudulent schemes and artifices” and theft. He ultimately pled guilty and was sentenced to three years’ probation and a one-year deferred jail sentence.

Grant Woods had been brought in as a special prosecutor to try the case against the sheriff. He argued, successfully, that, “This sheriff, for all the good he did, ended up being a two-bit thief, day after day, month after month.”

No matter. Hounshell’s eventual conviction did little to reduce him in the eyes of County Attorney Whiting, who hired him as an investigator.

At the time, Attorney General Terry Goddard said he was “concerned” about the ex-felon’s hiring, saying that it may violate portions of Hounshell’s plea agreement.

No matter. Whiting went ahead with the 2009 hiring. And by early 2010, Hounshell and another investigator had visited the defendant in jail “and pressed him to plead guilty or face a possible death penalty.” For good measure, Hounshell also allegedly threatened charges against the defendant’s wife.

Now the Bar is looking into what went on up there in Apache County. But there is one more part of the story that tells us something about Arizona’s changing legal community.

Brian Hounshell

That judge who got the ball rolling? She is Presiding Judge Donna Grimsley. And she is the first woman ever elected to the position of Superior Court Judge for Apache County. And now she has placed herself in the center of a firestorm—which is sometimes what a judge has to do.

I do not know the judge, and it’s always best to avoid simplistic psychoanalysis. But a judge setting aside a murder conviction, with prejudice, for prosecutorial misconduct? That is a thunderclap. If there is a definition for “good-‘ol-boy network,” it probably includes the rehiring of a sheriff with a felony conviction, and a sense of hubris and untouchability that would lead to a jailhouse interview that a second-year law student could spot as a constitutional violation.

And after what may prove to be years of odd goings-on in the White Mountains, the statement that “this will not stand” came from a woman who pioneered her way into a historic position.

Donna Grimsley, Presiding Judge for Apache County

On the White Mountain Independent’s comments section, there are already calls for her recall. That’s a battle for another day. But her ruling has signaled a new way of doing business. We’ll see if it’s a way that is preferred by the people who elect judges.