Maricopa County Attorney Rachel Mitchell has dropped her bid to have the Supreme Court declare that she has as much right as Attorney General Kris Mayes to seek an execution warrant.

But the decision doesn’t resolve the legal issue. Instead, it simply defers the fight for another day.

“We’re absolutely not conceding,” Mitchell told Capitol Media Services on Tuesday. 

In legal papers filed with the high court, Mitchell pointed out to the justices that she was asking them to set briefings to begin the process of finally getting an order to execute Aaron Gunches.

That request was filed in June, during the time that Mayes was refusing to move ahead even though Gunches had exhausted all of his appeals. Instead, the attorney general said she wanted to wait for a final report from a special commissioner hired by Gov. Katie Hobbs, who was reviewing the process to prevent future “botched” executions.

Hobbs dismissed the commissioner last month, saying instead she is satisfied with a report by the Department of Corrections, Rehabilitation and Reentry that it can properly conduct the process without the problems that have occurred in the past.

And based on that, Mayes now has filed the paperwork with the Supreme Court to start the process designed to put Gunches to death early next year.

What all that means, Mitchell told the high court, is that Mayes is doing exactly what she wanted in the first place. And that, the county attorney said in dropping the case, makes the issue legally moot.

“We’re simply saying our object has been met,” she said, in that Mayes is finally pursuing a warrant to execute Gunches. “But we’re not saying that Kris has exclusive jurisdiction.”

With Mitchell’s claim withdrawn, the justices won’t have to decide.

Mayes, in her own legal filings earlier this year, insisted that she has the sole right to seek the necessary warrant.

“The attorney general unquestionably maintains the exclusive authority to request a warrant from execution from this court,” she wrote. And at least part of that, Mayes said, was the fact that the Legislature designed the attorney general as the “chief legal officer of the state.”

Mitchell never disputed Mayes’ authority to seek an execution warrant. But she insisted that the law says the Supreme Court must issue a warrant of execution if “the state” files a notice saying there are no more post-conviction or habeas proceedings.

“’The state’ unequivocally includes all prosecuting agencies and prosecutors,” Mitchell argued. And that, she told the justices, means she has as much authority to seek a warrant of execution as Mayes.

Mitchell also said that it is her job to speak for victims, in this case, survivors, and represent their interests under the Victims’ Bill of Rights, a set of constitutional and statutory provisions. And key to that, she said, is ensuring “a prompt and final conclusion of the case after the conviction and sentence.”

In fact, she said Tuesday that’s one reason she’s now dropping her challenge to Mayes.

Mitchell told the justices that pursuing the case actually could delay the execution. And that, she said, would interfere with the rights of the survivors of Ted Price, the victim in the 2022 murder, to get “finality.”

And going forward?

There are 111 people on death row, 25, including Gunches, who have exhausted their appeals. Mitchell said there should not be the need to resurrect this fight with Mayes “if she continues to execute her job duties.”

A spokesman for Mayes agreed the issue is now moot, at least for Gunches. But Richie Taylor said his boss is in no way conceding for future legal fights that Mitchell has concurrent authority to seek a warrant of execution.

Mayes had some allies in her legal fight.

Democratic former Attorney General Terry Goddard joined with two former county attorneys, Republican Rick Romley of Maricopa County and Barbara LaWall of Pima County, who filed their own legal brief urging the Supreme Court to reject Mitchell’s attempt to seek a warrant of execution. They said the history of the death penalty in the state and associated legislation make it clear the Attorney General’s Office is in charge of such actions.

Mitchell said Tuesday their claims are irrelevant.

“The bottom line is that Romley and Barbara (LaWall) never faced that issue because they never had an attorney general who was refusing to do her duty,” Mitchell said. “So this was a unique situation.”