Monday, November 5, 2018

How My Case Almost Made It to the Supreme Court

Sometimes life is not fair. My nine-plus years of legal wrangling over my license to practice law has finally ended. The Supreme Court declined to hear my case. It’s been a long haul, entailing doing most of the legal work myself, along with my co-plaintiff.
My health and finances may never recover.

A Casualty

I was a casualty in the effort to take down former Arizona Sheriff Joe Arpaio. He joined forces with my boss at the time, former Maricopa County Attorney Andrew Thomas, to combat illegal immigration. They had a lot of success. The pair figured out how to prosecute illegal immigrants with felonies — for conspiring to smuggle themselves over the border.
They lobbied and got four laws passed against illegal immigration in 2006. The four propositions all passed by more than 70 percent. Thomas conducted a groundbreaking study which found that illegal immigrants commit more crimes per person than the general population.
Together, Thomas and Arpaio became a team of very proactive conservatives on illegal immigration and crime. But that made them a target. Me too.
Thomas brought me on as a Special Assistant and Deputy County Attorney in 2005 when he started as Maricopa County Attorney. I left Go Daddy, where I was legal counsel. My former boss there says I would be a millionaire if I had stayed there a few more years. I started some local blogs, where I would post press releases and other things from the office. But I was being watched.

The County Feud Begins

Thomas began butting heads with the Maricopa County Supervisors and a few Maricopa County Superior Court judges. The judges weren’t enforcing illegal immigration laws that Thomas was trying to prosecute. The supervisors were building a $340 million dollar court tower that taxpayers couldn’t afford. They were paying for it in cash, not even bonds, in the midst of the recession. It included travertine and marble, private robing rooms for the judges, and more lavish items.
Since the judges wanted the luxurious building, they were not inclined to rule against the supervisors. Thomas brought charges against two corrupt county supervisors, Don Stapley and Mary Rose Wilcox.
Stapley spent $86,000 raised for a political campaign where he had no opponent on luxury items. He paid for three vacations for his family, expensive stereo equipment, boutique clothing for his wife and more. Wilcox left off key details on her financial disclosure reports.
But no judge would rule against them. Thomas had Stapley indicted twice — didn’t matter. The court found a technicality to let him off the hook. He later sued the county for wrongful prosecution and his fellow supervisors awarded him $3.5 million in taxpayers’ money. Wilcox received a $900,000 settlement.

The RICO Suit

Frustrated, Thomas and Sheriff Arpaio filed a racketeering (RICO) lawsuit against the supervisors, judges and their attorneys, alleging that they were conspiring against the duo’s efforts. One of his senior prosecutors, Lisa Aubuchon, helped draft it. After it was filed, Thomas realized since Aubuchon was also handling the criminal prosecutions, someone else should handle the civil RICO suit. He asked me to take it over — but with assurances that he would find outside counsel to replace me.
The well-known D.C. lawyers Joseph DiGenova and Victoria Toensing agreed to take it over. They held a press conference announcing it. But the law required Thomas to get the supervisors’ approval to hire outside counsel — and they refused.
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So my name was placed on the suit for a couple of months. I was instructed to work under the supervision of the RICO expert in the office, Pete Spaw. He came up with a new charge, mail fraud, and did most of the work on an amended complaint. I did some research but it was mostly all his work.
Another D.C. lawyer who had connections to the Department of Justice told us he could get the DOJ to take over the case. So we withdrew it. The DOJ never did anything.
But it was too late. The supervisors filed bar complaints against us.

Too Late

Although my role was small, they didn’t like my blogging. Some retired judges went to the State Bar and said they better do something about Thomas. So the Bar, which is run by lawyers on the left who despise Arpaio and Thomas, ran with the complaints. The State Bar’s disciplinary judge, who has his own history of corruption, ruled against us. Thomas and Aubuchon were disbarred, and I was suspended for six months.
The Bar put on a huge show trial against us, broadcast on video every day for about two months. They brought in prosecutors from out of state. We were told in an email that we would not be responsible for all the extra travel costs, hotels, etc. Overall, more than $500,000 was spent on the trial. The Bar assessed those costs against us.
We were confident the county would pay for the costs. They paid for the costs of previous attorneys disciplined by the Bar — including my supervisor Spaw. The Bar agreed to reduce the amount owed to $101,500, that would be jointly owed by the three of us.
I would not be able to practice law again until I paid for the cost of the show trial against my two disbarred superiors too. Normally, the Bar assesses $2,000 or $4,000 or so in costs against an attorney who is suspended for six months. My superiors did not have the money to pay it.
But when it came time to get the county to pay, the supervisors fought it. A senior, well-experienced attorney advised me to email a Notice of Claim to the supervisors, kind of a heads up that I would be filing a lawsuit. They discussed it, refused to pay, and emailed me their decision.
We filed a lawsuit shortly afterward. The supervisors then came up with the argument that I didn’t properly give them the notice of claim so it was too late to sue them; the statute says to give it to them in person. But the case law is clear, if a recipient treats a Notice of Claim as legitimate, e.g. engages in litigation, then the deficiency is waived.

Years of Litigation

At first we had an attorney helping us on a contingency fee, but the Bar soon went after him, suspending his license. We were on our own. The judge agreed with the supervisors that my Notice of Claim was invalid, and ruled against Aubuchon too on other grounds. We appealed to the Ninth Circuit Court of Appeals. No luck, they rubber stamped the lower court’s decision. The county spent hundreds of thousands of taxpayers’ money to avoid paying the $101,500.
Finally, we filed a petition for cert with the U.S. Supreme Court. That is a request to have the court consider the case. It cost us over $900 to make 44 copies of the petition in the manner required and mail them to the court. Last month, SCOTUS declined to take our case. They only accept about 130 cases out of 7,000 petitions a year, so we knew it was a long shot.
Fortunately, I have switched careers to journalism. But I have huge law school loans and credit card debt from when no one would hire me due to the bad publicity. Thomas’s enemies regularly leave insulting comments under my articles bringing up my suspension, trolling me around the web.
I now write about others who have been abused through the legal system. I don’t know how to solve this problem in our justice system. But sunlight is a good disinfectant.

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