Court skeptical of punishing county attorney - East Valley Tribune: East Valley Local News

Court skeptical of punishing county attorney

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Posted: Wednesday, May 27, 2009 7:49 pm | Updated: 12:29 am, Sat Oct 8, 2011.

Appeals court judges expressed skepticism Wednesday that prosecutors in the case against Maricopa County Supervisor Don Stapley can be sanctioned for the release of a sealed document to the Tribune.

The judges did not make any rulings or even decide whether they would accept jurisdiction of the case. But during oral arguments, they grilled lawyers about whether Judge Larry Grant of Maricopa County Superior Court overstepped his authority when he ordered sanctions against the county attorney's office for allowing the release of a sealed court deposition.

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Grant ruled last month that prosecutor Lisa Aubuchon violated his court order sealing the deposition of developer Conley Wolfswinkel when she allowed it to be released to the Tribune by the Maricopa County Sheriff's Office. The Tribune obtained a copy of the deposition through a public records request filed with the sheriff's office.

Wolfswinkel's lawyers sought the disciplinary action against Aubuchon and the county attorney's office, arguing she had the power to block the document's release.

But during the hearing Wednesday, members of the three-judge panel noted repeatedly that the county attorney's office was not a part of the 2005 lawsuit in which the deposition was taken. Grant's authority only extended to the parties in the original lawsuit, Judge Diane Johnsen said in asking Wolfswinkel lawyer Lawrence Wright whether he had any legal basis to argue otherwise.

Wright said that anyone who was aware of Grant's order sealing the deposition should be bound by it.

"Your argument then would apply to the newspaper and it can't apply to the newspaper," Johnsen responded.

Wolfswinkel gave the deposition last year in a lawsuit involving a water company owned by a company he is affiliated with in the Maricopa area of Pinal County. It was sealed by Grant under a mutual agreement between the parties.

Aubuchon was the lead prosecutor in the case against Stapley, who was indicted in November on 118 charges, including perjury and forgery for failing to list business and real estate interests on financial disclosure forms he is required to file as an elected official. The case has since been sent to the Yavapai County Attorney's Office to resolve conflict of interest allegations leveled against the Maricopa County Attorney's Office, which provides civil legal advice to the supervisors and county agencies.

The sheriff's investigation of Stapley and the supervisor's relationship with Wolfswinkel continued after the indictment was issued. In January, Aubuchon filed a motion in the civil case asking Grant to unseal the deposition, which she argued could contain information relevant to the criminal case and ongoing investigation.

But shortly after Aubuchon filed that motion, sheriff's investigators obtained a copy of the deposition during a search of the Tempe offices of Wolfswinkel-related companies. The Tribune received a copy from the sheriff's office in response to a public records request filed shortly after the search.

After a story based on the deposition was published, Wolfswinkel's lawyers filed a motion for sanctions against Aubuchon and the county attorney's office, arguing they should have blocked the document's release.

Last month, a visibly angry Grant sided with Wolfswinkel. He ordered that all copies of the deposition be returned, and declared monetary sanctions were appropriate against the county attorney's office for allowing the release of the deposition knowing it was covered by his protective order.

The county filed a motion for a special action with the appeals court, asking that it block Grant's order.

Deputy County Attorney Elizabeth Ortiz said during the hearing Wednesday that Grant had no authority to issue sanctions against the office since it was not bound by the confidentiality agreement in the civil case. Grant also seemed to disregard an affidavit from Lisa Allen, a sheriff's spokeswoman, that Aubuchon was not consulted before the deposition was released to the Tribune, Ortiz said.

"The judge (Grant) lost his temper," Ortiz said. "He got frustrated and he lost his temper."

The appeals court will decide whether Grant's order will stand only if it accepts jurisdiction in the case.

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