Villalpando v. Reagan

Decision Date22 September 2005
Docket NumberNo. 1 CA-CV 04-0775.,1 CA-CV 04-0775.
Citation121 P.3d 172,211 Ariz. 305
PartiesJanis VILLALPANDO, Petitioner/Appellant, v. Michael REAGAN, Maricopa County Justice of the Peace, Scottsdale Precinct, Respondent/Appellee, Mesa City Prosecutor's Office, Real Party In Interest/Appellee.
CourtArizona Supreme Court

Theron M. Hall, III, Phoenix, Neal W. Bassett, Phoenix, for Petitioner/Appellant.

John Pombier, Mesa City Prosecutor, Mesa, By W. Craig Jones, Assistant City Prosecutor, for Real Party In Interest/Appellee.

Arizona Prosecuting Attorneys Advisory Council, Phoenix, By Edwin M. Cook, Director, for Amicus Curiae APAAC.

The Phoenix City Prosecutor's Office, Phoenix, By Heidi E. Gilbert, Assistant City Prosecutor, for Amicus Curiae City of Phoenix.

OPINION

EHRLICH, J.

¶ 1 The Maricopa County Justice Court, Scottsdale Precinct, denied the motion of Janis Villalpando for appointment of a special prosecutor for charges filed against her after her arrest for driving under the influence of alcohol ("DUI"). Villalpando then filed a special action in the Maricopa County Superior Court to challenge that ruling. The superior court accepted jurisdiction, but it denied Villalpando the relief she requested, and Villalpando appealed its decision to this court. We have jurisdiction pursuant to Arizona Revised Statutes §§ 12-120.21(A)(1) (2003) and 12-2101(B) (2003). For the reasons that follow, we affirm the judgment of the superior court.

FACTS AND RELEVANT PROCEEDINGS

¶ 2 Villalpando, who was at the time an attorney in the Scottsdale City Attorney's Office, was arrested in Scottsdale for DUI. Because of her employment, the Scottsdale City Court transferred Villalpando's case to the Maricopa County Justice Court, Scottsdale Precinct, a transfer not at issue. The Scottsdale City Prosecutor ("Scottsdale Prosecutor") made a limited appearance in the justice court to inform the court that, because Villalpando was a city employee, he would later "notify this Court of substitute counsel."

¶ 3 The Scottsdale Prosecutor indeed subsequently moved to withdraw as counsel due to his conflict of interest. In the motion, he advised the justice court that the Mesa City Prosecutor ("Mesa Prosecutor") was willing to assume responsibility for the case. Villalpando did not respond and therefore apparently did not oppose the motion. Accordingly, the justice of the peace signed an order of substitution.

¶ 4 Several months after the order of substitution was filed, however, Villalpando filed a motion in the justice court for appointment of a special prosecutor. She argued that, once the Scottsdale Prosecutor had called his conflict to the court's attention, his involvement in the case should have ceased. By taking the additional step of recommending a successor, she contended, the Scottsdale Prosecutor had perpetuated his conflict in violation of Villalpando's due-process rights under both the Arizona and United States Constitutions.1

¶ 5 The justice court denied Villalpando's motion. Villalpando then filed a special action in the superior court. The court accepted jurisdiction, but it found "no appearance of impropriety, no actual conflict, and no error in the action of the Scottsdale City Prosecutor's Office in referring the instant case to the Mesa City Prosecutor's Office for prosecution...." Accordingly, it denied relief, and Villalpando appealed its judgment.2

DISCUSSION

¶ 6 We review the judgment for an abuse of the superior court's discretion, which occurs if the court erred in its application of the law or when the record does not substantially support its decision. Merlina v. Jejna, 208 Ariz. 1, 3 ¶ 6, 90 P.3d 202, 204 (App.2004). A ruling on a motion to disqualify counsel is one within the court's discretion to make, "limited only by the applicable legal principles." Smart Indus. Corp. Mfg. v. Superior Court (St.Germaine), 179 Ariz. 141, 145, 876 P.2d 1176, 1180 (App.1994).

¶ 7 Villalpando does not contend that the Mesa Prosecutor has an independent conflict of interest that would disqualify him or his office, and she does not dispute the Mesa Prosecutor's declaration that he has never been under the "supervision, guidance, or control" of the Scottsdale Prosecutor. Villalpando's contention is that, once the Scottsdale Prosecutor had identified his conflict of interest, he was disqualified from making any further decisions related to her case without "perpetuating" that conflict. Thus, the sole issue is whether a conflict-barred prosecutor's nomination of substitute counsel violates a defendant's federal and state due-process rights to "fundamental fairness."3

¶ 8 Without question, certain prosecutorial conflicts may implicate due-process concerns, see, e.g., State v. Counterman, 8 Ariz.App. 526, 529-30, 448 P.2d 96, 99-100 (1969), and a court does have the authority to disqualify a prosecutor or a prosecutor's office for a conflict of interest. E.g., Turbin v. Superior Court, 165 Ariz. 195, 199, 797 P.2d 734, 738 (App.1990).4 A defendant does not state a claim for a violation of his due-process rights, however, unless the conflict is so severe as to deprive him of fundamental fairness in a manner "shocking to the universal sense of justice." Oshrin v. Coulter, 142 Ariz. 109, 111, 688 P.2d 1001, 1003 (1984) (quoting Crouch v. Justice of Peace Court, 7 Ariz.App. 460, 466, 440 P.2d 1000, 1006 (1968)).

Because there is no bright-line rule for determining whether a conflict rises to the level of a due-process violation, each case must be analyzed on the facts peculiar to it. As the Supreme Court has explained:

[D]ue process "is not a technical conception with a fixed content unrelated to time, place and circumstances." Rather, the phrase expresses the requirement of "fundamental fairness," a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise [that] must discover what "fundamental fairness" consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.

Lassiter v. Dept. of Soc. Servs., 452 U.S. 18, 24-25, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). Thus, before we consider whether Villalpando's due-process rights were violated by the Scottsdale Prosecutor's nomination of the Mesa Prosecutor, we must consider the nature of the Scottsdale Prosecutor's conflict.

¶ 9 Because Villalpando did not object to the substitution of the Mesa Prosecutor when the motion for substitution was made, the justice court's approval of that substitution was in effect the appointment of a "special prosecutor." See State v. Latigue, 108 Ariz. 521, 523, 502 P.2d 1340, 1342 (1972) (After the disqualification of the Maricopa County Attorney's Office, it was "necessary that the County Attorney secure the appointment of a special prosecutor if he wishes to continue the prosecution of this case"). In this context, Villalpando's motion to appoint a special prosecutor was a motion to disqualify the Mesa Prosecutor, the special prosecutor already appointed, on the basis that he was infected with the Scottsdale Prosecutor's conflict of interest as the result of having been recommended by him.

¶ 10 The parties to a criminal action are the defendant and the State. State v. Lamberton, 183 Ariz. 47, 49-50, 899 P.2d 939, 941-42 (1995). In Villalpando's case, the Mesa Prosecutor became the State's counsel. The Arizona Supreme Court has cautioned that a party should not be allowed to interfere with her opponent's attorney-client relationship except "in extreme circumstances," thereby putting the burden on Villalpando to show sufficient reason why the Mesa Prosecutor should be disqualified. Alexander v. Superior Court (State), 141 Ariz. 157, 161, 685 P.2d 1309, 1313 (1984). It also has advised to "view with suspicion" motions by opposing counsel to disqualify a party's attorney based upon his conflict of interest or appearance of impropriety. Gomez v. Superior Court, 149 Ariz. 223, 226, 717 P.2d 902, 905 (1986).5

¶ 11 Even so, a prosecutor's duty to avoid a conflict of interest is prime because his paramount duty is to the principle of "fairness." In other words, his interest is not so much to prevail as to ensure that "justice shall be done." Pool v. Superior Court (State), 139 Ariz. 98, 103, 677 P.2d 261, 266 (1984) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)).

Public confidence in the criminal justice system is maintained by assuring that it operates in a fair and impartial manner. This confidence is eroded when a prosecutor has a conflict or personal interest in the criminal case which he is handling.

Turbin, 165 Ariz. at 198, 797 P.2d at 737 (citing Latigue, 108 Ariz. at 523, 502 P.2d at 1342). See State v. Hughes, 193 Ariz. 72, 80, 969 P.2d 1184, 1192 (1998) ("The prosecutor has an obligation to seek justice, not merely a conviction, and must refrain from using improper methods to obtain a conviction.") (citing, inter alia, Pool, 139 Ariz. at 103, 677 P.2d at 266); State v. Rodriguez, 192 Ariz. 58, 64 ¶ 33, 961 P.2d 1006, 1012 (1998) (A prosecutor's responsibilities extend "beyond the duty to convict defendants. Pursuant to its role of `minister of justice,' the prosecution has a duty to see that defendants receive a fair trial.") (citing Ariz. R. Sup.Ct. 42, E.R. 3.8, cmt.[1] ("A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.")); State v. Freader, 144 Ariz. 224, 227, 696 P.2d 1373, 1376 (App.1985) (A prosecutor has special ethical duties.).

¶ 12 Any interest that is inconsistent with the prosecutor's duty...

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