A lawyer for Maricopa County Attorney Rachell Mitchell told a judge that the Trump-aligned law firm representing Recorder Justin Heap in an ongoing lawsuit against the Board of Supervisors shouldn’t be allowed to stay on the case.
In June, Heap filed suit against the board, escalating a monthslong fight over control of the county’s elections.
Mitchell, who represents both the recorder and the board, appointed outside attorneys to represent both sides in negotiations before Heap filed the lawsuit.
Initially, former state Supreme Court Justice Andrew Gould was appointed by Mitchell, to represent Heap. But the lawsuit, which is ongoing, was filed by America First Legal, a Washington, D.C., nonprofit firm co-founded by Stephen Miller, who is currently an advisor to President Donald Trump.
That led Mitchell to send a cease-and-desist letter to Heap’s America First Legal attorney, demanding he stop representing the recorder.
On Dec. 2, Brett Johnson, Mitchell’s attorney, told Judge Scott Blaney that the firm shouldn’t be allowed to represent Heap. That’s because state law and legal precedent gives the county attorney sole authority to represent county officials or appoint outside counsel, he claimed.
Johnson acknowledged Mitchell couldn’t represent both the board and the recorder at the same time but said she retained the power to appoint attorneys for county officials.
“But I am not adverse, as a county attorney … to the county recorder, and I still wear my administrative hat and still meet our statutory duties,” Johnson argued on Mitchell’s behalf.
The law in question names a county attorney “the public prosecutor of the county” and lists a variety of powers, from prosecuting public offenses in court to advising the board of supervisors, attending board meetings and opposing “claims against the county that the county attorney deems unjust or illegal.”
Johnson argued that when the law was drafted in Arizona’s territorial days, the term “prosecutor” had broad connotations.
“So it meant that not only defend, but also to actively, proactively do litigation on behalf of the county or county officials,” he said, arguing that extends to appoint outside counsel for officials when necessary.
Rogers, the attorney representing Heap, disagreed. He said the law doesn’t explicitly give Mitchell sole authority to pick outside counsel.
“County Attorney Mitchell would have this court broaden that far beyond the scope of the actual text of the statute by reading into it this broad grants of authority,” he said.
And he argued Mitchell has actively worked against Heap in the ongoing litigation, which should disqualify her.
“It goes back to the same issue with communications that they had before County Attorney Mitchell filed her action when her office communicated with the board's counsel about legal strategy without including Recorder Heap, her client,” Rogers told Blaney.
Blaney acknowledged the question presented by the case is a difficult one.
“What I will say, and I know that the attorneys probably don't like hearing this from the court in these situations, but I think this is a close call,” the judge said.
Other issues
Johnson also claimed the firm’s political nature should disqualify it from representing Heap and violated laws designed to keep politics out of public offices.
“It's not appropriate for a political legal organization to be representing a government official in their government duties,” Johnson said.
He alleged the use of America First Legal violated a state law signed by former Republican Gov. Doug Ducey in 2021 that banned the use of private funds to pay for election-related expenses. The law was crafted after Arizona received private elections grants in 2020 tied to Facebook founder Mark Zuckerberg.
He also argued the political nature of the firm violates another law that prohibits government agencies from employing a person “if that person's salary, wages or other compensation for performing official state duties is paid in whole or in part by private monies.”
Rogers argued the 2021 law — which specifically bans private money from being used for “preparing for, administering or conducting an election” — doesn’t apply to the lawsuit.
“We are not involved in the administration of elections, so none of those statutes apply,” Rogers said.
He also denied his organization is political, pointing out that America First Legal is a 501(c)3 nonprofit.
“We do not take partisan positions, do not support partisan candidates, and we zealously guard our 501(c)3 status, which has been granted by IRS, so there is no political organization involved here,” he said.
Federal law prohibits 501(c)3 organizations from engaging in political campaign activity on behalf of candidates for office. However, the organizations are permitted to engage in advocacy and some limited lobbying activities, according to the National Council of Nonprofits.
According to America First Legal’s website, it is focused on immigration, parental rights, election integrity and combatting “Diversity, Equity and Inclusion” — all key parts of President Trump’s agenda.
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