Ninth Circuit Justices Grill Maricopa County Attorney In Alexander Appeal

Last week, the case of Lisa Aubuchon v. County of Maricopa was considered by a three judge panel in the Ninth Circuit Court of Appeals. The case involves former Maricopa County Attorney employees, Lisa Aubuchon and Rachel Alexander, who allege a breach of contract and retaliation by the County.

Justices Nguyen, Hurwitz, and Eaton heard oral arguments in the appeal by Aubuchon and Alexander of a summary judgment in their case against Maricopa County in which they allege a breach of contract under state law and First Amendment retaliation in connection with their State Bar disciplinary proceedings.

Despite receiving assurances from then-Maricopa County Attorney Andrew Thomas, that the cost of any disciplinary action in connection with their duties would be covered by the County, the two women were later denied that benefit by the County.

It is widely believed that Alexander and Aubuchon are still suffering from retaliation by associates of former members of the Maricopa County Board of Supervisors, for the women’s roles in representing Maricopa County Sheriff Joe Arpaio, along with his attorney and their boss, former Maricopa County Attorney Andrew Thomas.

The justices noted the disparate treatment of the women by County bureaucrats. Justice Hurwitz went so far as to argue that Alexander’s supervisor Peter Spaw’s behavior was far more egregious than Alexander’s, yet the County covered the costs of his disciplinary action.

Justice Hurwitz vigorously challenged the claim by Maricopa County’s attorney, Jim Armstrong, that Alexander and Aubuchon did not have protection from the County. “What we do know, is that over the course of their employment, we had two other ones that came up,” said Justice Hurwitz referring to disciplinary actions against Maricopa County attorneys, “and they were both before Ms. Aubuchon and Ms. Alexander, and they were opportunities to pay costs. In the first two opportunities to pay costs for Maricopa County Attorney employees that we can find – the County paid the costs.”

When Armstrong claimed that the County’s Risk Management Department used “discretion” in choosing to cover discipline costs for Spaw, Justice Eaton said, “I am baffled by this whole notion of discretion. Discretion isn’t whim. Discretion is you have an obligation. Discretion is, I have an obligation that has to come from someplace. You can’t take the taxpayers’ dollars and give it to somebody because you want to. Because they’re a good guy. You have to have an obligation to pay that money.”

The justices singled out Alexander for much of the discussion. Justice Nguyen questioned why Alexander would be treated the same way as Aubuchon by the County given the fact that she was a low-level employee, who unlike Aubuchon, did not merit severe discipline.

“I want to ask about Ms. Alexander’s circumstance because it seems to me that Ms. Aubuchon’s circumstance is quite distinguishable from Ms. Alexander’s,” stated Justice Hurwitz. “Ms. Aubuchon went out and got herself disbarred. Other people went out and got themselves suspended or sanctioned. In Ms. Alexander’s case, which she got a 6 months suspension, why isn’t there a reasonable inference that the County has agreed to pay her costs because they paid it for Mr. Spaw and he got what kind of sanction?”

Armstrong incorrectly responded, “He was sanctioned for negligence.” “No, no,” interrupted Hurwitz. “What kind of sanction did he receive?” Armstrong stammered. Hurwitz continued, “No, what kind of sanction did he receive? He was suspended from the practice of law, was he not?” Armstrong responded that he “was not sure.” Hurwitz shot back, “Wasn’t Mr. Duffy also suspended?” “I am not sure,” hedged Armstrong.

“So you have two suspensions that occur prior to this case and the County pays off on each of them. I understand Ms. Aubuchon’s situation, which is quite different – she get  disbarred, but Ms. Alexander gets a 6 month suspension. Why didn’t she have a reasonable expectation that her Bar costs were going to be paid? Because they were paid for the people who were in similar circumstances.”

Armstrong argued that Aubuchon and Alexander’s conduct was “intentional,” contrary to the record. Hurwitz laughed and said, “Well, Mr. Spaw’s costs were covered because he made a deal. At least compared to Ms. Alexander, Mr. Spaw’s conduct strikes me as worse.”

According to Arizona Supreme Court records, the Arizona State Bar found that Alexander did not have a record of carelessness and acknowledged that she did not merit a suspension of six months and one day. “The consequence of the additional day is that Alexander must complete a more onerous reinstatement process and demonstrate her rehabilitation before reinstatement to the active practice of law, which may significantly extend the effective length of her suspension,” wrote Supreme Court Justice Timmer. “If Alexander is suspended for six months or less, she can apply for reinstatement in a less time-consuming process that does not require a demonstration of rehabilitation.”

Yet, not only did the County refuse to cover Alexander’s cost, the County’s Risk Management Department has racked up legal fees fighting Alexander, who is considered merely collateral damage in a political tug-of-war.

As the ADI reported last month, Alexander, a popular writer for Townhall, and editor of The Stream, is unable to practice law due to the fact that the State Bar will not consider readmitting her until she, Aubuchon, and Thomas pay $101,500.

The County has claimed that there was no employment contract between Alexander and Aubuchon with the County, so the County’s insurance doesn’t cover it. However, both Alexander and Aubuchon were merit protected (covered) employees. They weren’t merely at will employees, employees on probation, or temporary employees. They claim that they had the fullest level of an employment contract possible.

Based on the justices’ line of questioning, it is likely they will remand the case to the trial court and grant the women a jury trial. Because the women are seeking punitive damages, the County will incur even greater costs. Should that occur, Maricopa County residents, who have grown weary of the politicos on both sides of the aisle, will have another issue to consider in 2020.

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