Lallande v. Penzone

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THOMAS LALLANDE, Plaintiff/Appellant,

v.

PAUL PENZONE, Defendant/Appellee.

No. 1 CA-CV 22-0545
FILED 9-7-2023

Appeal from the Superior Court in Maricopa County
No. CV2022-006929
LC2022-000151-001
The Honorable Katherine Cooper, Judge

AFFIRMED

COUNSEL

Thomas J. Lallande IV, Phoenix
Plaintiff/Appellant

Maricopa County Attorney’s Office, Phoenix
By Michael E. Gottfried
Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Brian Y. Furuya joined.

B A I L E Y, Judge:

¶1 Thomas J. Lallande IV appeals the superior court’s dismissal
of his petition for special action against Maricopa County Sheriff Paul
Penzone for lack of jurisdiction. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On May 31, 2022, Lallande, then a presentencing and pretrial
detainee in the Maricopa County jail,1 petitioned the superior court for a
special action review of quarantine protocols issued by Maricopa County
Correctional Health Services (“CHS”) and enforced by Sheriff Penzone.
Lallande sought release from an alleged improper COVID-19 quarantine,
arguing that Arizona Revised Statutes (“A.R.S.”) section 36-789 required
CHS to provide a written directive or obtain a written court order before
imposing a quarantine.2 Lallande contended that his criminal court date
had been continued at least thirty times due to multiple unauthorized
quarantines in excess of 300 total days, thus violating his constitutional
right to a speedy trial.3 Lallande argued that Sheriff Penzone erroneously

1 Lallande was awaiting sentencing in Maricopa County Superior
Court case no. CR2020-000414, and he was awaiting trial in three other
matters, Maricopa County Superior Court case nos. CR2020-143488,
CR2021-000613, and CR2022-001569.

2 Section 36-789 permits the department of health services or the local
health authority, which is defined as a county health department or public
health services district, to isolate or quarantine a person through a written
directive without first obtaining a written court order in cases of immediate
and serious threat to the public health. See A.R.S. §§ 36-789(A), -101(2),
-781(4).

3 Both the federal and Arizona constitutions provide for the right to a
speedy public trial. U.S. Const. amend. VI; Ariz. Const. art. 2, § 24.
However, “[n]either the United States nor the Arizona Constitution

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Decision of the Court
enforced the unauthorized quarantine in violation of A.R.S. § 26-316, which
requires state law enforcement authorities to enforce orders, rules, and
regulations pursuant to the state’s emergency management powers.

¶3 Lallande also filed an application requesting a court order
directing Sheriff Penzone to show cause why Lallande should not be
released from quarantine. In support of his application, Lallande avowed
he had not previously requested such relief from any other court.

¶4 The superior court sua sponte converted the special action to
a civil action. Sheriff Penzone moved to dismiss for lack of jurisdiction
because Lallande had previously filed a separate civil lawsuit against the
Maricopa County Board of Supervisors and others regarding his alleged
unconstitutional quarantine, which had been removed to the United States
District Court for the District of Arizona. See Lallande v. Maricopa Cnty. Bd.
of Supervisors, Maricopa County Superior Court, No. CV2022-003910 (Ariz.
Mar. 29, 2022) (unpublished order); Lallande v. Maricopa Cnty. Bd. of
Supervisors, United States District Court for the District of Arizona, No.
CV22-00725-PHX-SMB (DMF) (D. Ariz. 2022). The district court had
dismissed that lawsuit for procedural reasons with leave to refile. In
response to Sheriff Penzone’s motion to dismiss in superior court, Lallande
advised the court that his petition for special action was not a civil lawsuit
and conceded he was pursuing his civil action in district court “regarding
his unlawful quarantine.” On July 5, 2022, Lallande refiled his complaint
in district court.

¶5 The superior court then found special action relief was not
appropriate due to the pending civil action in district court, declined special
action jurisdiction, and granted Sheriff Penzone’s motion to dismiss. We
have jurisdiction over Lallande’s appeal under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶6 Although Lallande raises multiple arguments addressing the
merits of his case,4 the sole issue on appeal is whether the superior court

requires that a trial be held within a specified time period.” State v. Spreitz, 190 Ariz. 129, 139 (1997) (citations omitted).

4 Lallande argues (1) Sheriff Penzone has quarantine authority in the
Maricopa County jail, (2) Sheriff Penzone failed to comply with Arizona
quarantine laws, (3) the superior court erred in denying a motion to appoint

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Decision of the Court
abused its discretion in declining special action jurisdiction. Bilagody v.
Thorneycroft, 125 Ariz. 88, 92 (App. 1979) (noting that if the appellate court
determines the superior court declined jurisdiction of the merits of the
claim, then the sole issue on appeal is whether the superior court abused its
discretion); Ariz. R.P. Spec. Act. 3, Comm. Note.

¶7 The superior court has jurisdiction to issue writs of
prohibition on behalf of a person held in actual custody within the county
and to issue extraordinary writs against state officers. Ariz. Const. art. 6, §§
5, 18; Ariz. Corp. Comm’n v. Super. Ct., 107 Ariz. 24, 26 (1971) (concluding the
superior court has concurrent jurisdiction with the Arizona Supreme Court
to issue extraordinary writs to state officers). Although such relief may be
accorded via a special action proceeding in superior court, special action
relief is highly discretionary and is reserved for the extraordinary
circumstances when a public official fails to do what he is required by law
to do, acts when required by law not to act, or abuses his discretion. See
Ariz. R.P. Spec. Act. 1(a), 3. Special action relief is not available when there
is some other equally plain, speedy, and adequate remedy. Ariz. R.P. Spec.
Act. 1(a); Neary v. Frantz, 141 Ariz. 171, 177 (App. 1984).

¶8 Here, the superior court reviewed the record and determined
that Lallande had a remedy available by a civil lawsuit and was pursuing
that remedy in district court. We agree. Under 42 U.S.C. § 1983, a cause of
action is conferred on anyone who claims deprivation of a constitutional
right under color of law. Neary, 141 Ariz. at 178. The district court granted
Lallande leave to refile his civil action regarding his alleged unauthorized
quarantine, noting that its jurisdiction pursuant to 28 U.S.C. § 1331
extended to claims that placement in quarantine violated federal
constitutional rights. The district court ultimately dismissed the lawsuit,
see Lallande v. Maricopa Cnty. Bd. of Supervisors, No. CV 22-00725-PXH-SMB
(DMF), at 7-9 & n.2 (D. Ariz. Aug. 24, 2022) (unpublished order), and the
Ninth Circuit Court of Appeals recently affirmed the dismissal, see Lallande
v. Maricopa Cnty. Bd. of Supervisors, No. 22-16777, 2023 WL 4348098 (9th Cir.
July 5, 2023) (mem. decision).5 Thus, Lallande had a plain, speedy, and
adequate remedy at law, and the superior court did not abuse its discretion
in declining special action jurisdiction. See Neary, 141 Ariz. at 177.

counsel, and (4) the superior court misinterpreted the law and erred in
dismissing his case.

5 Although the district court refrained from ruling on the speedy trial
issue, we conclude such abstention is irrelevant given our finding of
mootness below.

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Decision of the Court
¶9 Lallande argues without explanation that the relief he sought
in his civil action is different than the relief requested in his petition for
special action. In his petition for special action, Lallande sought release
from quarantine so that he could receive a speedy trial in his then-pending
criminal case. To the extent this request for relief differs from that
requested in his civil action,6 we find the pretrial-release-from-quarantine
issue is moot. Issues involving pretrial incarceration conditions
become moot once a trial is conducted. Ariz. R.P. Spec. Act. 1(a); Fragoso v.
Fell, 210 Ariz. 427, 429, ¶ 3 (App. 2005). We take judicial notice of the
underlying state criminal case dockets, see Chung v. Choulet, 248 Ariz. 236,
240, ¶ 14 (App. 2020), which show Lallande received a jury trial in February
2022 (predating Lallande’s filing of the petition for special action in this
case). See State v. Lallande, Maricopa County Superior Court, No. CR2020-
000414. The jury found him guilty of several crimes, and in May 2023, the
superior court sentenced him to imprisonment with presentence credit for
time served. Further, after having waived his constitutional right to a jury
trial and pleading guilty in the three other pending criminal cases, he was
sentenced at the same time to concurrent sentences, with consecutive terms
of probation. See State v. Lallande, Maricopa County Superior Court, Nos.
CR2020-143488, CR2021-000613, CR2022-001569. Thus, because Lallande
has already received the relief he was seeking in his petition for special
action, we find no basis to vacate the superior court’s ruling. Chambers v.
United Farm Workers Org. Comm., AFL-CIO, 25 Ariz. App. 104, 106 (1975)
(noting that mootness prohibits giving opinions concerning issues that no
longer exist due to a change in factual circumstances).

CONCLUSION

¶10 For the foregoing reasons, we affirm the superior court’s
ruling.

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

6 It appears Lallande requested the same relief in district court. See
Lallande v. Maricopa Cnty. Bd. of Supervisors, No. CV 22-00725-PXH-SMB
(DMF).

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