                    NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                   IN THE
            ARIZONA COURT OF APPEALS
                               DIVISION ONE


                             CRAIG JOHNSON,
                                Petitioner,

                                       v.

             THE HONORABLE SAMUEL E. VEDERMAN,
                 Judge of the SUPERIOR COURT OF
                THE STATE OF ARIZONA, in and for
                       the County of LA PAZ,
                           Respondent Judge,

                         STATE OF ARIZONA,
                           Real Party in Interest.
                   _________________________________
                              JOSE TREJO,
                                 Petitioner,

                                       v.

             THE HONORABLE SAMUEL E. VEDERMAN,
                 Judge of the SUPERIOR COURT OF
                THE STATE OF ARIZONA, in and for
                       the County of LA PAZ,
                           Respondent Judge,

                         STATE OF ARIZONA,
                           Real Party in Interest.
                   _________________________________
                           JEFFREY CARTER,
                                 Petitioner,

                                       v.
             THE HONORABLE SAMUEL E. VEDERMAN,
                 Judge of the SUPERIOR COURT OF
                THE STATE OF ARIZONA, in and for
                       the County of LA PAZ,
                           Respondent Judge,

                          STATE OF ARIZONA,
                           Real Party in Interest.

                           No. 1 CA-SA 17-0105
                               1 CA-SA 17-0111
                               1 CA-SA 17-0112
                                (Consolidated)
                             FILED 6-6-2017


  Petition for Special Action from the Superior Court in La Paz County
            No. CR2016-00048, CR2016-00049, CR2016-00070,
                       CR2016-00249, CR2016-00177
                The Honorable Samuel E. Vederman, Judge

      JURISDICTION ACCEPTED; RELIEF GRANTED IN PART


                                COUNSEL

Orent Law Offices, PLC, Phoenix
By Craig S. Orent
Counsel for Petitioner Johnson

Grynkewich Law Offices, Kingman
By Jeffrey P. Grynkewich
Counsel for Petitioners Trejo/Carter

La Paz County Attorney's Office, Parker
By James P. Schilder
Counsel for Real Party in Interest




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       JOHNSON/TREJO/CARTER v. HON. VEDERMAN/STATE
                     Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Samuel A. Thumma joined.


J O H N S E N, Judge:

¶1             We exercise our discretion to accept jurisdiction of these
consolidated petitions for special action relief. Petitioners have no adequate
remedy at law, and, as briefed, the issue on which we rule is a legal issue
and is appropriate for special action jurisdiction. See Ariz. R.P. Spec. Act. 1,
2; Sec. Gen. Life Ins. Co. v. Superior Court, 149 Ariz. 332, 333-34 (1986)
(accepting special action jurisdiction of order granting motion to disqualify
counsel); Foulke v. Knuck, 162 Ariz. 517, 519 (App. 1989) (accepting special
action jurisdiction of denial of motion to disqualify opposing counsel). For
the reasons that follow, we grant relief in part.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Petitioners are criminal defendants who challenge the
superior court's orders denying their motions to disqualify James Schilder,
whom La Paz County Attorney Tony Rogers appointed as a Special Deputy
Prosecutor to prosecute the charges against petitioners. According to the
appointment document executed in each case, Schilder is "responsible for
determining the necessity and manner of [the] prosecution." There is no
contention that the appointment was the result of a conflict of interest on
the part of the County Attorney. Nor is Schilder formally employed or
affiliated with any county attorney's office. Rather, the County Attorney
accepted Schilder's volunteer offer to prosecute these and several other
cases without pay.

¶3           In response to the motions to disqualify, the State
(represented by Schilder) informed the superior court that Schilder "is not
controlled by, nor answers to, the County Attorney as a 'deputy.'" As
Schilder declared at oral argument in the superior court, he has
"independent power without the day-to-day oversight" of the County
Attorney. Moreover, in response to questioning by the superior court,
Schilder agreed that the County Attorney has ceded to him all authority
over the cases to which he has been appointed. Further, Schilder told the




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      JOHNSON/TREJO/CARTER v. HON. VEDERMAN/STATE
                    Decision of the Court

superior court that although he "consult[s]" with the County Attorney, he
is not required to do so.

¶4            Nevertheless, in denying the motions to disqualify, the
superior court explained that it essentially disbelieved Schilder's assertion
that in the prosecutions to which he is assigned, he answers to no one:

      The Court, anecdotally, has never heard of an elected county
      attorney, who has no conflict of interest, appointing a Special
      Deputy Prosecutor in such a wholesale manner. In addition,
      it is very concerning to the Court, that Schilder, who is not
      affiliated with any prosecutorial agency and/or
      governmental agency, proclaims he answers to no one and
      Rogers [the County Attorney] does not refute that notion.

      However, the Court is not convinced Schilder reports to no
      one. Just as Rogers has appointed Schilder, the Court finds
      Rogers has the authority to revoke the appointment of
      Schilder, and thus, Rogers does have supervisory authority
      over Schilder.

                               *      *      *

      If Rogers chooses to abdicate his responsibility, by not
      supervising Schilder, and if Schilder continues to proclaim he
      is unsupervised, and answers to no one, this matter could
      potentially be addressed, individually and/or collectively,
      through the State Bar of Arizona, the criminal justice system,
      an impeachment, a recall election or a primary/general
      election . . . .

      The Court finds the appointment of Schilder, by Rogers, to be
      valid constitutionally, and statutorily, and that Rogers, as the
      appointing authority, is the direct supervisor of Schilder.

                              DISCUSSION

¶5            Petitioners argue the County Attorney's appointment of
Schilder is invalid because it lacked the approval of the Board of
Supervisors pursuant to Arizona Revised Statutes ("A.R.S.") section 11-409
(2017) ("[W]ith the consent of, and at salaries fixed by the board, [county
attorney] may appoint deputies, stenographers, clerks and assistants




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       JOHNSON/TREJO/CARTER v. HON. VEDERMAN/STATE
                     Decision of the Court

necessary to conduct the affairs of [the] office[].").1 Petitioners cite no
authority, however, for the proposition that § 11-409 requires Board
approval of volunteer deputies, and, in any event, Schilder is acting not as
a deputy county attorney but as a Special Deputy Prosecutor.2

¶6            The broad scope of the power that may be implied by
Schilder's appointment, however, may raise serious due-process concerns.
Not surprisingly, there is no Arizona case authorizing this arrangement or
even addressing it. In other jurisdictions, in the rare case where a similar
arrangement has been undertaken, courts have expressed grave concerns
about attorneys simply taking over for properly elected or appointed
prosecuting officers without supervision, absent any ethical conflict or
statutory authorization.

¶7             Our constitution vests in the elected County Attorney the
power and the duty to represent the public's interest in the prosecution of
those charged with crimes. Ariz. Const. art. 12, § 3; see A.R.S. § 11-532(A)
(2017) ("The county attorney is the public prosecutor of the county.").
Accordingly, the County Attorney, and deputies who report to and are
supervised by the County Attorney, have a particular "obligation to seek
justice." See State v. Hughes, 193 Ariz. 72, 80, ¶ 33 (1998); see also Berger v.
United States, 295 U.S. 78, 88 (1935) ("[United States Attorney] is in a peculiar
and very definite sense the servant of the law."); State v. Lead Indus. Ass'n,
951 A.2d 428, 471-72 (R.I. 2008).

¶8            In the usual case, discretionary decision-making inherent in
the power to prosecute may not be delegated to unelected private counsel.
See Lindsay R. v. Cohen, 236 Ariz. 565, 567, ¶ 6 (App. 2015) (rejecting victims'
request to litigate restitution "through privately retained counsel"); Lead
Indus., 951 A.2d at 476. To the contrary, important due-process rights are
implicated when an elected prosecutor cedes all control over a prosecution
to a private lawyer. Erikson v. Pawnee County Bd. of County Comm'rs, 263


1     Absent material revision after the relevant date, we cite a statute's
current version.

2         The State contends petitioners lack standing to complain of the
rulings denying their motions to disqualify, but a criminal defendant has
standing to protest a violation of his due-process rights. The State also
suggests the court should defer to the executive during a financial crisis,
but we will not consider that argument because it was not raised in the
superior court.



                                       5
       JOHNSON/TREJO/CARTER v. HON. VEDERMAN/STATE
                     Decision of the Court

F.3d 1151, 1154 (10th Cir. 2001); East v. Scott, 55 F.3d 996, 1000-01 (5th Cir.
1995); see also Person v. Miller, 854 F.2d 656, 662-63 (4th Cir. 1988).

¶9            In State v. Harrington, 534 S.W.2d 44, 48 (Mo. 1976), a "private
prosecutor" hired by the victim's family was invited "to help prosecute the
defendant." The court ruled the procedure was "fundamentally unfair." Id.;
see Hughes, 193 Ariz. at 80, ¶ 33. As the Harrington court stated,

       [t]he modern day prosecutor wields the power of the State's
       investigatory force, decides whom to indict and prosecute,
       decides what evidence to submit to the court, negotiates the
       State's position in plea bargaining and recommends
       punishment to the court. The entry of a private prosecutor
       into a criminal prosecution exposes all of these areas to
       prejudicial influence. We consider such exposure intolerable.

534 S.W.2d at 50.

¶10            In response to these petitions for special action, the State (still
represented by Schilder) argues the situation here is not controlled by the
cases cited above because Schilder is not being paid by a victim's family or
by anyone with an interest in the outcome of the prosecutions. A lawyer's
willingness to perform pro bono legal services is commendable. But when
all responsibility for the prosecution of a criminal matter is ceded to an
unelected special prosecutor, the resulting lack of accountability infringes
the due-process rights of the accused, regardless of whether the special
prosecutor is working for free. In such a case, the accused is deprived of
his or her due-process right to prosecution by or under the supervision of
an elected officer who owes "a special and enduring duty to 'seek justice.'"
Lead Indus., 951 A.2d at 471.

¶11            From the record presented, we cannot determine the extent to
which authority and responsibility for these prosecutions may have been
ceded to Schilder. In a "revised response" to the petitions, the State asserts
that Schilder is subject to some authority of the County Attorney, citing the
finding the superior court made in denying the motions to disqualify. But
the finding by the superior court that Schilder in fact is supervised by the
County Attorney flies in the face of the categorical representations Schilder
made in responding to the motions to disqualify and in statements he made
during oral argument in the superior court. The superior court, moreover,
ruled without hearing evidence on the matter. (Schilder filed no declaration
describing the scope of his authority, nor did the court receive any evidence




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      JOHNSON/TREJO/CARTER v. HON. VEDERMAN/STATE
                    Decision of the Court

from County Attorney Rogers concerning the scope of the authority he
bestowed on Schilder.)

                               CONCLUSION

¶12             For the reasons stated above, we accept jurisdiction and grant
relief in part by vacating the superior court's orders denying the motions to
disqualify Schilder. We direct the superior court to receive whatever
evidence it requires to ascertain the scope of Schilder's authority over these
cases, including the nature and extent, if any, of County Attorney Rogers'
supervision of Schilder. After receiving such evidence, the superior court
must reconsider the petitioners' motions to disqualify, consistent with this
decision.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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