Arizona DUI Courts - battle over racial equality

Phoenix, AZ - There is a battle raging between Maricopa County Courts and current County Attorney Andrew Thomas over the DUI Court program. Rather then explain the details, a recent article from azcentral.com is quoted in full below.

Quoted from http://www.azcentral.com/business/abg/articles/2008/10/30/20081030abg-dui1030.html:

9th Circuit questions Thomas' attack on DUI courts

SAN FRANCISCO - Federal appellate judges are questioning the legal right of county attorneys in Arizona to sue the state or its employees after the Maricopa County Attorney's Office asked a federal court to intervene to halt practices it believes are racially discriminatory.

Michael Garvin argued that the County Attorney's Office is a party in all criminal cases being heard in Superior Court, and he said that gives Andrew Thomas, as the head of that office, legal standing.

In this case, Garvin told the 9th U.S. Circuit Court of Appeals, Andrew Thomas filed suit to bar some special "DUI courts" set up by Barbara Mundell, the county's presiding judge. The county attorney contends they are discriminatory and unconstitutional because they segregate participants based on race.

But Judge Sidney Thomas said those claims may be legally irrelevant.

He said Garvin's argument that the county attorney has a right to sue Mundell in federal court is premised on the contention that the DUI courts, actually a part of the post-conviction probation process, damage the people of Arizona. The judge said, though, that only the state attorney general can represent the people in these kinds of lawsuits in federal court.

And Scot Claus, who is representing Mundell, noted that all judges in Arizona are constitutionally state employees who he said can't be sued by county officials in federal court. He said Andrew Thomas' lawsuit is not only legally flawed but improperly motivated "to satisfy some personal and, truth be told, some patently political motive."

The county attorney, who is facing a tough re-election campaign, denied the allegation. He said he sued because he believes the programs are "morally offensive and unconstitutional."

But Garvin acknowledged there is politics of a sort behind the dispute. "Judge Mundell is biased against this office because she's not imposing the kind of probationary sanctions that this office advocates."

The fight is over DUI courts, which oversee people already convicted of multiple drunken-driving offenses and who are now on probation. Andrew Thomas sued after Mundell created two special divisions; one for those is for Spanish speakers and one is for Native Americans.

A federal judge in Phoenix threw out the lawsuit, saying Thomas lacked legal standing. The appellate hearing was an attempt by the county attorney to get his day in court.

Garvin said county attorneys are empowered to represent the state's interests in prosecuting criminals. He said that makes them parties to those criminal cases, the same as defendants, and entitled to seek federal intervention over illegal acts by the courts.

Judge Thomas, however, said allowing Andrew Thomas to pursue this case could mean 15 different county attorneys could have 15 different positions - and 15 different lawsuits. And the judge said there is no evidence Arizona Attorney General Terry Goddard gave anyone permission to sue on behalf of the state.

Appellate Judge Susan Graber suggested the county attorney might have a claim had Mundell created racially separate courts for actual trials. She said monitoring the probation of those already convicted is different.

Garvin, however, said that these DUI courts do more than supervise probationers and that judges can do things like sending them people to jail for the weekend.

He said a probationer who argued the punishment being meted out is racially motivated would have standing to sue. Garvin said the same should be true of the county attorney.

"It's clear as a bell that judges can injure litigants' interests," Garvin said, and that prosecutors, as parties to the case, can appeal.

Even if Andrew Thomas wins this appeal, that doesn't mean the special DUI courts will go away.