Trombi v. Donahoe (CA1 12/23/09)

We are of two minds whether to review this one. It is part of the war between the judiciary and the Sheriff in Maricopa County, a disgusting and degrading spectacle we would rather avoid. But the case is interesting and contains a useful summary of the law of contempt.

Basically, the Maricopa Count Superior Court was upset that the Sheriff wasn’t bringing prisoners to court on time. The court ordered Trombi to appear before the criminal presiding judge to show cause in about thirty cases. Trombi is apparently the guy nominally in charge of transporting prisoners (as much as we complain about excessive recitation of facts, in this opinion some of them seem to have been elided). The judge found Trombi in contempt. It ordered him to pay certain sums to the defendants, defense attorneys, prosecutors, and jurors in about 25 cases; it also ordered him to pay the court $2000 unless the Sheriff’s office signed an agreement by a certain date promising to bring all the prisoners on time.

Trombi petitioned for Special Action. The Court of Appeals affirmed the contempt but struck all but one of the sanctions.

Trombi’s first argument was based on a comment the judge made at the hearing rather than on his order. This seems consistent with the quality of argument generally displayed in the case, at least from reading the opinion. The judge had said ““I’m alerting you to the fact that all the judicial officers have been instructed if they don’t get – if the defendants are unreasonably late or if they don’t get transported at all, to issue an order to show cause.” The Court of Appeals backhandedly acknowledged that telling other judges what orders to issue in their cases would have been an abuse of authority. Its solution was to pretend that the presiding judge’s instruction wasn’t an instruction but, instead, a suggestion.  Giving suggestions about how judges might handle certain situations is a perfectly proper thing for a presiding judge to do. While we’re not sure we would have wanted to be a judge who didn’t take this particular suggestion, the opinion’s approach was the graceful one.

Trombi next argued that the presiding judge didn’t have authority to issue contempt orders in cases not assigned to him. A case decided last year (an earlier battle in the Maricopa County Wars) held otherwise. The opinion manages to take two pages to say that.

Trombi argued that the court was violating the separation of powers by trying to “micromanage” the Sheriff’s Department. This apparently has to do with the judge’s finding that the Sheriff was deliberately not assigning enough deputies to take prisoners to court. But it has less to do with the sharp end of the order which, as the opinion points out, merely told the Sheriff to bring prisoners, not how many people to hire.

The court then addressed the contempt issues that should have been at the heart of the case but weren’t since its really all about politics. The opinion says nothing new or reportable about contempt but is now a good source for cites about it.

The opinion makes it clear that the presiding criminal judge carefully phrased his contempt order after reading up on the difference between civil and criminal contempt. Disappointingly for one’s faith in the system, or presiding judges, or something, he got it almost all wrong. Civil contempt forces a person to obey a court order and/or compensates somebody for his losses; the sanctions are paid to the claimant and must be related to the extent of the loss; the person held in contempt must be given the chance to purge himself; and the evidentiary standard is clear and convincing. Criminal contempt punishes a past act to vindicate the authority of the court, there is no chance to purge, Criminal Rule 33 must be followed, and the standard is evidence beyond a reasonable doubt that the act being punished was willful. (The opinion cites cases for all these things.) The judge phrased his order as if it were a civil contempt even though he was, at least in part, punishing past acts (as the briefs or arguments seem to have acknowledged), people to whom Trombi was ordered to pay money weren’t complainants, the amounts of money bore no relationship to the amount of their actual losses, and Trombi had no chance to purge except for the $2000. Needless to say, the judge imposed this obviously criminal contempt using the civil standard of evidence, relieving him of the burden of beyond-a-reasonable-doubt and the necessity of finding willfulness.

So, the court reversed all but the $2000 sanction, which Trombi’s lawyer agreed was a civil sanction (though how it bears a relationship to actual losses isn’t obvious).