Trombi v. Donahoe

• Decision Date: 22 December 2009
• Docket Number: No. 1 CA-SA 09-0260.,1 CA-SA 09-0260.
• Citation: 222 P.3d 284
• Parties: Deputy Chief David TROMBI, Petitioner, v. The Honorable Gary E. DONAHOE, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Jamie Alvarez-Miranda, Real Party in Interest.
• Court: Arizona Court of Appeals

222 P.3d 284

Deputy Chief David TROMBI, Petitioner, v. The Honorable Gary E. DONAHOE, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Jamie Alvarez-Miranda, Real Party in Interest.

No. 1 CA-SA 09-0260.

Court of Appeals of Arizona, Division 1, Department C.

December 22, 2009.

Iafrate & Associates by Michele M. Iafrate, Phoenix, Co-Counsel for Petitioner.

Andrew P. Thomas, Maricopa County Attorney by Thomas P. Liddy, Deputy County Attorney, Phoenix, Co-Counsel for Petitioner.

Terry Goddard, Attorney General by Rex Nowlan, Section Chief Counsel, Hunter Perlmeter, Assistant Attorney General, Phoenix, Attorneys for Respondent Judge.

Allen Tunac & Coughlon PLLC by Shannon Peters, Phoenix, Attorneys for Real Party in Interest.

OPINION

SWANN, Presiding Judge.

¶ 1 Deputy Chief David Trombi of the Maricopa County Sheriff's Office ("MCSO") brought this special action to challenge an order of the criminal presiding judge of the Maricopa County Superior Court finding him in contempt of court in his role as the officer in charge of prisoner transport. The contempt order, which the court viewed as civil in nature, arose from the court's finding that MCSO had failed in thirty cases to timely transport in-custody defendants to scheduled court proceedings.

¶ 2 We hold that the court had the authority to conduct the contempt proceedings at issue. We further hold that the Legislature has conferred upon the court the power to require the sheriff to transport inmates to court proceedings in a timely fashion. However, we hold that (with one exception) the contempt sanctions were invalid because they were in the nature of criminal (not civil) sanctions entered without compliance with Ariz. R.Crim. P. 33. Therefore, for the reasons set forth below, we accept jurisdiction and grant Trombi's request for relief in part and deny it in part.

FACTS AND PROCEDURAL HISTORY

¶ 3 Pursuant to A.R.S. § 11-441(A)(4) (Supp.2008),¹ the sheriff has a mandatory duty to "[a]ttend all courts, except justice and municipal courts, when an element of danger is anticipated and attendance is requested by the presiding judge, and obey lawful orders and directions issued by the judge."

¶ 4 On November 5, 2007, Judge Anna M. Baca, then the criminal presiding judge of the Superior Court in Maricopa County, ordered MCSO to "comply with A.R.S. § 11-441(A)(4), all minute entries and morning calendar as of November 6, 2007 and each day thereafter." Judge Baca advised those present that "further proceedings will be held, including but not limited to Order to Show Cause and contempt proceedings for further failure to transport in-custody defendants and failure to attend criminal court morning calendar proceedings." MCSO did not seek review of Judge Baca's order.

¶ 5 On July 28, 2009, Judge Barbara Rodriguez Mundell, the presiding judge of the Superior Court in Maricopa County, sent a letter to Sheriff Joseph Arpaio. The letter addressed court delays caused by MCSO failures to transport in-custody criminal defendants to scheduled hearings and trials. Judge Mundell advised the sheriff that the court expected MCSO to follow the law and the orders of the court by timely transporting all in-custody defendants to their scheduled court appearances.

¶ 6 After receiving Judge Mundell's letter, MCSO continued to fail to timely transport many in-custody defendants to court appearances. In August 2009, the court issued orders to show cause regarding contempt in thirty criminal cases. Each order directed Trombi, as the overseer of MCSO's inmate transport operations, to appear before the criminal presiding judge, Judge Gary E. Donahoe, and show cause why he should not be held in contempt for violating Judge Baca's November 5, 2007 order.

¶ 7 On September 25, 2009, Judge Donahoe conducted a consolidated evidentiary hearing on the orders to show cause. At the outset of the hearing, Trombi's counsel acknowledged that Trombi is responsible for staffing the court with sufficient MCSO deputies to ensure the timely transport of in-custody criminal defendants to their scheduled court appearances. Counsel further stated: "[T]he real time decisions that are made are made by subordinates who actually make those decisions underneath the command structure of Deputy Chief Trombi and other deputy chiefs. And, of course, Deputy Chief Trombi will stand responsible for the appropriate decisions."

¶ 8 Trombi's counsel called MCSO Sergeant G.T. Czapski, a court security supervisor assigned to inmate escort duties, to testify about deputy staffing issues and the transport problems in the cases at issue. At the conclusion of the hearing, Judge Donahoe took the matter under advisement.

¶ 9 On September 28, 2009, Judge Donahoe entered a signed minute entry finding Trombi in contempt. Judge Donahoe specifically held that the contempt proceeding was civil in nature, and that any sanction imposed was not punitive, but rather remedial or intended to obtain compliance with earlier court orders. Judge Donahoe further noted that because the contempt was civil, the standard of proof was "clear and convincing evidence" and it was not necessary to find that Trombi's failure to comply with the orders was willful.

¶ 10 The court found that the evidence demonstrated that as the result of a "conscious decision," the court security division of MCSO is "chronically understaffed." In all but one of the cases at issue, Judge Donahoe found Trombi in indirect civil contempt for violating lawful orders to attend the court. In one of the cases, jurors and attorneys in DUI court had twice been made to wait because the defendant was not timely transported, and in two other cases, defendants were not timely transported to their sentencing hearings. Additionally, twenty-five defendants missed their status conferences on August 20, 2009 because they were not delivered to the courtrooms. Noting that all sanctions would be imposed against Trombi as a representative of MCSO, the court ordered him to pay by October 16, 2009 designated sums to the defendants, defense attorneys, prosecutors, and jurors in those cases in which contempt was found. The court explained that the payments to defendants were for "the delay caused by MCSO's failure to timely transport [them]," and the payments to attorneys and jurors were for "the inconvenience occasioned by having to wait."

¶ 11 Judge Donahoe further ordered Trombi to pay to the superior court the amount of $2,000, for "the disruption in the administration in [sic] justice, wasted court time caused by the failure to abide by the court's lawful orders and as discipline for failing to obey the lawful orders of the court." As to this payment only, Judge Donahoe specified a purge condition, ordering that Trombi would be relieved of making the $2,000 payment by "presenting to this Court before October 16, 2009, an agreement signed by an authorized representative of MCSO that absent extraordinary circumstances (1) MCSO will obey all lawful orders of the court for timely delivery to court of inmates in the custody of the Sheriff, and (2) that MCSO will obey the requirement of A.R.S. § 11-441(A)(4) to attend the court each business day with sufficient personnel to assure the timely delivery of all jail inmates to their scheduled court appearances and trials."

¶ 12 Trombi's request for a stay of the contempt order was denied by the superior court.² His motion to consolidate the cases in which he was found in contempt was granted and this special action followed. Trombi has presented two issues for our review: (1) whether the court had authority to conduct the contempt proceedings in the manner described above, and (2) whether the sanctions imposed were improper because they were in fact criminal contempt sanctions entered in violation of Ariz. R.Crim. P. 33. Trombi has not sought review of the merits of the individual findings of contempt.

¶ 13 By order filed October 30, 2009, we permitted Judge Donahoe, as the respondent judge, to file a response. See Riley, Hoggatt & Suagee, P.C. v. English, 177 Ariz. 10, 14, 864 P.2d 1042, 1046 (1993); Dunn v. Superior Court (Samaritan Health Serv.), 160 Ariz. 311, 314, 772 P.2d 1164, 1167 (App.1989).

JURISDICTION

¶ 14 We may accept special action jurisdiction when there is no "equally plain, speedy, and adequate remedy by appeal." Ariz. R.P. Spec. Act. 1(a). The sanctions at issue are presented as civil contempt orders, and such orders are not appealable. Berry v. Superior Court (Desert Holding & Inv.), 163 Ariz. 507, 508, 788 P.2d 1258, 1259 (App.1989). In the exercise of our discretion, we therefore accept special action jurisdiction.

DISCUSSION

I. Jurisdiction and Inherent Authority

¶ 15 Trombi argues that Judge Donahoe acted in excess of his jurisdiction by ordering other judges to issue orders to show cause, and by violating the constitutional principle of separation of powers. We disagree.

¶ 16 Trombi first contends that Judge Donahoe improperly directed other judges to make specific rulings. In support of that contention, he relies on a comment that Judge Donahoe made at the hearing: "I'm alerting you to the fact that all the judicial officers have been instructed if they don't get—if the defendants are unreasonably late or if they don't get transported at all, to issue an order to show cause." At oral argument on this special action, Trombi's counsel further asserted that Judge Donahoe himself had drafted the language to be used in those orders to show cause.

¶ 17 As an initial matter, we note that Trombi has provided no evidence that Judge Donahoe issued an order that required other judges to issue orders to show cause. Based on the record before us, we find that no such abuse of authority occurred. An order by a presiding judge that instructs other judges to consider the use of a procedural device— here, orders to show cause—is nothing more than a case management order...