A Cochise County Superior Court judge has been asked to dismiss several pending DUI cases in the Tombstone Magistrate Court over questions of who can prosecute the cases, and the judge’s decision could lead to efforts to overturn hundreds of convictions out of the court.
Judge Laura Cardinal is assigned to a petition for special action filed last month by attorney Robert Zohlmann, who contends Tombstone’s code of ordinances prior to November 2019 does not grant City Attorney P. Randall Bays nor his designees the authority to prosecute state crimes committed in the city limits. The petition asks for a court order dismissing nine cases against Zohlmann’s clients.
The petition does not challenge the legitimacy of the DUI arrests by the Tombstone Marshal’s Office nor the jurisdiction of Tombstone Magistrate Kenneth Curfman to hear cases involving violations of state statutes within the city. Instead, Zohlmann contends city officials have no authority “whatsoever to prosecute such cases.”
The special action petition also alleges the magistrate judge admitted in open court to conferring with Bays about the disqualification effort without Zohlmann present. Bays has been contracted since the 1990s to provide legal services for the city.
Curfman, along with Bays, Mayor Dustin Escapule, and others were recently served notice of the special action. One issue Cardinal is expected to address is whether Bays, as city attorney, can represent any city officials in the special action proceedings given that he is also a named party.
Cardinal will schedule a hearing once the respondents file an answer with the court. The timing of that hearing is critical, as Bays is set to stand trial in March on multiple felonies stemming from a domestic violence injury incident. He faces several years in prison if convicted of all charges.
An attorney unrelated to the disqualification dispute believes hundreds of convictions out of the Tombstone Magistrate Court could be challenged if Cardinal rules the cases were unlawfully prosecuted. The Cochise County Attorney and Arizona Attorney General’s Office would be prevented from refiling the charges due to the protection against double jeopardy, the attorney said.
Questions about who can prosecute alleged offenses of state statutes in Tombstone arose in August 2019 when Zohlmann motioned Curfman to disqualify Bays from prosecuting Zohlmann’s clients. The motion also sought to block anyone Bays or the city designates as city prosecutor from handling alleged offenses of state statutes.
Zohlmann’s argument is based in part on Tombstone’s 1972 city code as making no mention a city prosecutor nor conferring prosecutorial authority for state crimes on any city official. Bays and then-city prosecutor Roger Contreras responded by citing their authority was vested in the city charter approved by the Arizona Territory Legislature in 1881 and by subsequent state statutes.
Curfman denied the disqualification motions in October 2019, although he did not provide findings of fact or conclusions of law that would have explained the legal basis for his decision. Zohlmann filed a motion for reconsideration, which Curfman denied in December.
The December order did, however, grant a stay (hold) of the prosecution of Zohlmann’s nine DUI clients. Curfman also stayed seven DUI cases assigned to attorney Adele Drumlevitch pending outcome of the disqualification issue.
But Curfman’s signed order once again made no mention of the request for findings of fact from which a defendant could file an appeal. As a result, the special action petition requests dismissal of all charges against Zohlmann’s clients, along with reimbursement of attorney’s fees and “such other and further relief as this Court deems necessary and proper.”
In the alternative, Cardinal is asked to order Curfman to provide the requested findings of fact on his denial of the disqualification. Zohlmann would then be able to file an appeal of the magistrate’s orders.
In November, Tombstone’s city council voted to revise the ordinance regarding the city attorney and prosecutorial authority. The revision drafted with Bays’ input was enacted on an emergency basis although neither the meeting agenda nor minutes of the meeting reflect that designation.
The council’s actions are under review by the attorney general’s office. Any code change cannot be enforced retroactively.