Arpaio snagged twice by legal barbs

Maricopa County Sheriff Joe Arpaio (File photo)

Maricopa County Sheriff Joe Arpaio is no stranger to lawsuits – and he’s not immune to losing them – yet his track record on legal battles during the past couple of weeks has been particularly poor.

First, on Aug. 19, the Arizona Court of Appeals strengthened a previous decision that limited the Sheriff’s Office’s authority to control certain funds.

The court re-designated a 2009 memorandum decision as an opinion, which means the decision is now legal precedent and is binding on other cases.

Less than a week later, he got slapped by the Maricopa County Elections Department.

On Aug. 24, the day of the primary election, county elections officials determined that a mailer Arpaio’s 2012 campaign sent to registered Republican voters violated election laws by advocating against the election of acting County Attorney Rick Romley.

Now Arpaio’s campaign is facing a potentially hefty fine and must quit “designating itself as the Campaign Committee of Sheriff Joseph “Joe” Arpaio,” according to the Elections Department.

Chad Willems, Arpaio’s campaign manager, said the campaign will fight the Elections Department’s decision on the grounds that it was wrong legally and a conflict of interest was created when the county chose private attorney Jeffrey Messing to act as special counsel in place of Romley.

“I believe that it was an election-day stunt,” Willems said.

The dust-up began when Arpaio ran a television ad for his re-election in 2012, which was critical of Romley, who then filed a complaint with the Elections Department.

Arpaio also sent a mailer for his re-election; one side of the mailer was dedicated to slamming Romley.
Messing, the special counsel acting on behalf of the county since Romley was conflicted out of the case, determined that the commercial was legal but the mailer wasn’t.

Willems said he didn’t understand that decision because the commercial and the mailer have the same message.

Messing wrote that although the commercial is critical of Romley, reasonable minds could disagree whether it advocated for Romley’s defeat in the 2010 primary or for Arpaio’s re-election in 2012, so it doesn’t satisfy the definition of a contribution or independent expenditure under state law.

The mailer was a different story.

“Although the footer contains the words ‘Vote for Joe Arpaio,’ its overall message is that Richard ‘Rick’ Romley is wrong, dangerous and too risky for Arizona,” Messing wrote. “Taken as whole, it does ‘expressly advocate’ the defeat of Richard ‘Rick’ Romley within the meaning of A.R.S 16-901.01.”

That’s the statute that defines “expressly advocates.”

Messing said it was “abundantly clear” Arpaio’s campaign knew the law and tried to walk as close to the line as possible.

Willems called into question Messing’s partiality since he was acting as the county attorney while on under contract with the county attorney, the complainant. Willems also said it was suspicious that the county went to Messing after the Greenlee County Attorney determined that the commercial was legal.

County Recorder, Helen Purcell, who oversees the Elections Department, circulated petitions for Romley, another conflict of interest, Willems said.

Romley said the commercials and mailer were a major reason for his loss Aug. 24 to Bill Montgomery, who had the support of Arpaio.

Meanwhile, the Aug. 19 setback for Arpaio was a case the Court of Appeals actually had decided in June and initially issued as a memorandum decision, which means it had no impact beyond the specific case.

The Maricopa County Board of Supervisors, Arpaio’s adversary in the case, asked that it be designated as legal precedent, which the court granted.

Cari Gerchick, a spokeswoman for the board and an attorney, said the board asked for the re-designation to offer clarity on the issues involved and prevent needless future litigation.

The case stems from a 2008 law, the Health and Welfare Reconciliation Act, that required Maricopa County to hand over $24.2 million to the state, which was trying to address a budget crisis.

The board swept money from 26 special county funds, including several established for use by the Sheriff’s Office and the County Attorney’s Office.

The Sheriff’s Office sued, arguing that the board had no authority to take the money.

The lower court found that the money belonged to the state and was subject to the Legislature.

The county gave the state the money on June 22, 2009.

Arpaio appealed, arguing that the lower court was wrong and the law was unconstitutional, but the appeals court disagreed.