Davey v. Hon sipe/state

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(C), THIS DECISION IS NOT PRECEDENTIAL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

LANCE GARY DAVEY, Petitioner,

v.

THE HONORABLE BILLY K. SIPE, Judge Pro Tem of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
MOHAVE, Respondent Judge Pro Tem,

STATE OF ARIZONA, Real Party in Interest.1

No. 1 CA-SA 24-0197
FILED 01-28-2025

Petition for Special Action from the Superior Court in Mohave County
No. CR-2018-00620
The Honorable Billy K. Sipe, Judge Pro Tem

VACATED AND REMANDED

1 In special actions filed after January 1, 2025, judges are not respondents.
Ariz. R.P. Spec. Act. 5(b)(2). This case, filed in 2024, remains subject to prior
practice. See 1 CA-AO 2024-0013 (entered Dec. 24, 2024) (“[A]ny cases
pending on January 1, 2025 will retain their existing captions.”).
 COUNSEL

Law Office of Jason Lamm, Phoenix
By Jason D. Lamm
Co-Counsel for Petitioner

Aspey Watkins & Diesel PLLC, Flagstaff
By Michael J. Wozniak
Co-Counsel for Petitioner

Mohave County Attorney’s Office, Kingman
By Amanda Claerhout
Counsel for Real Party in Interest

MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.

J A C O B S, Judge:

¶1 Lance Gary Davey filed this special action challenging the
superior court’s denial of his request for an evidentiary hearing and the
denial of his Motion to Disqualify the Mohave County Attorney’s Office.
Because, based on the record presented, the court should have held the
evidentiary hearing Davey requested, we accept jurisdiction and reverse.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2020, a jury convicted Davey of fifteen drug and weapon
felony offenses, later finding the State proved certain aggravating
circumstances. During the trial, Kenneth Beane, a Mohave County Deputy
Public Defender, represented Davey. Thereafter, Davey was sentenced to
prison as a repetitive offender to concurrent and consecutive prison terms
lasting more than 30 years.

¶3 Sometime after representing Davey, Beane left the Public
Defender’s Office and began working for the Mohave County Attorney’s
Office (“MCAO”).

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¶4 In November 2023, Davey filed his Notice of Post Conviction
Relief under Arizona Rule of Criminal Procedure 32. Thereafter, Davey
requested an interview with Beane to support a potential claim of
ineffective assistance of counsel. In February 2024, before Beane was
interviewed, Davey asked MCAO whether Beane had been screened from
Davey’s file. In response, MCAO said Beane had asked another Deputy
County Attorney to obtain the Public Defender’s file for Davey (although
that other Deputy declined to do so) and that Beane had been “conflicted
off” the case.

¶5 The next week, Davey interviewed Beane. During the
interview, Davey discovered Beane had (1) viewed MCAO’s file on Davey
on several occasions and (2) been first told not to access Davey’s MCAO file
“several hours” before the interview. When further questioned, Beane was
unaware of any screening measures that barred him from accessing
Davey’s file. After Davey notified MCAO of Beane’s conduct, Beane
resigned.

¶6 Davey then moved to disqualify MCAO from representing
the State in his post-conviction relief case, attaching an informal transcript
of Davey’s interview of Beane. He later filed a Motion to Accelerate or
Continue Oral Argument on the disqualification motion. Within the
Motion to Accelerate or Continue Oral Argument, Davey requested an
evidentiary hearing, citing State ex rel. Mitchell v. Palmer, 257 Ariz. 160 (2024)
and State ex rel. Romley v. Superior Court, 184 Ariz. 223 (App. 1995). The
court did not grant the Motion to Accelerate or Continue and held no
evidentiary hearing.

¶7 Davey argued MCAO should be disqualified under Romley
and Gomez v. Superior Court, 149 Ariz. 223 (1986). He also relied on Mitchell,
because of Beane’s conduct. MCAO admitted Beane should not have
accessed Davey’s file but argued there were insufficient grounds for
disqualification.

¶8 The superior court ruled from the bench, without holding an
evidentiary hearing, and denied Davey’s Motion to Disqualify MCAO,
finding “no basis to grant this motion.” In doing so, the court discussed the
appearance of impropriety but did not mention Romley, Gomez, or Mitchell.
The court reasoned that there was no basis for disqualification because
MCAO gained no advantage from Beane’s misconduct and there was no
prejudice to Davey. This special action followed.

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DISCUSSION

¶9 Davey asks this Court to exercise special action jurisdiction to
review the superior court’s denial of his Motion to Disqualify and its denial
of his request for an evidentiary hearing on the motion. The
“disqualification of a prosecutor’s office is of statewide importance and
likely to recur.” State v. Marner, 251 Ariz. 198, 200 ¶ 7 (2021). We choose to
exercise our discretionary special action jurisdiction. Turbin v. Superior
Court, 165 Ariz. 195, 196 (App. 1990) (accepting special action jurisdiction
for the denial of a motion to disqualify an entire prosecutor’s office).

¶10 Davey argues the superior court erred by failing to hold an
evidentiary hearing for the Motion to Disqualify. Davey also argues the
superior court erred by failing to analyze the Gomez factors and properly
apply Romley’s guidelines for vicarious disqualification. Because the
superior court should have held an evidentiary hearing before ruling on the
Motion to Disqualify, we vacate its ruling and remand for further
proceedings.

I. The Superior Court Should Have Granted Davey’s Request for an
Evidentiary Hearing.

¶11 When considering a motion to disqualify an entire
prosecutor’s office, our Supreme Court recently stated, in a comparable
context, that “a motion to disqualify involves a fact-intensive inquiry[] and
will likely necessitate a hearing[.]” Mitchell, 257 Ariz. at 162, 168 ¶¶ 1, 28
(addressing the “unique prosecutorial situation . . . when a crime victim
works in the same office responsible for prosecuting the individual accused
of the crime[]”).

¶12 Although Davey’s request for an evidentiary hearing was in
the body of his Motion to Accelerate or Continue, MCAO’s response is that
the court’s decision was not fact intensive, and the parties agreed to the
conduct in question (not that a hearing was not requested). It is true that
our law does not generally require an evidentiary hearing where there is no
significant factual question or dispute. See State v. Amaral, 239 Ariz. 217, 220
¶ 12 (2016) (discussing the purpose of an evidentiary hearing in the post-
conviction context). But here, Davey and MCAO have a real dispute as to
the effect and severity of Beane’s conduct as it pertains to Davey’s potential
claims. Although that issue likely could be resolved if other counsel were
substituted for MCAO to represent the State, that has not yet occurred.

¶13 The record reinforces the necessity of an evidentiary hearing.
Before denying Davey’s motion, the superior court did not learn what

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information Beane accessed through MCAO. The court found Beane
accessed the information for no “nefarious” purpose, though there was no
testimony addressing Beane’s intent, and the order cites no law that would
make Beane’s good faith a defense to disqualification. The court also found
neither MCAO nor Beane gained an advantage from Beane’s misconduct,
but no testimony was provided or cited to support this finding. As the
Supreme Court stated in Mitchell, “[b]ecause a motion to disqualify
involves a fact-intensive inquiry,” such a motion typically requires an
evidentiary hearing. 257 Ariz. at 167 ¶ 28. Because, on this record, such a
hearing was required, we vacate the court’s ruling and remand.

¶14 The remand will allow the superior court not only to receive
live evidence provided by the parties, but also expressly address the Gomez
factors. Marner, 251 Ariz. at 200 ¶ 11 (“[T]he trial court should consider
these factors whenever a defendant seeks to disqualify an entire
prosecutor’s office, regardless of whether the basis for the motion is a
conflict of interest, misconduct, or appearance of impropriety.”).
Accordingly, on remand, the superior court can expressly decide whether:
(1) the purpose of the motion is to harass the nonmovant, (2) the party
bringing the motion will be damaged in some way if it is not granted, (3)
there are any alternative solutions, or “is the proposed solution the least
damaging . . . under the circumstances,” and (4) “the possibility of public
suspicion will outweigh any benefits that might accrue due to continued
representation.” Gomez, 149 Ariz. at 226 (internal quotation omitted).

¶15 And to the extent MCAO argues it engaged in screening that
mitigated any issues created by permitting Beane’s access to information,
the court on remand also can expressly address Romley in considering the
efficacy of screening. See Mitchell, 257 Ariz. at 165-66 ¶¶ 21-23 (applying
Romley and holding that screening mechanism was inadequate to prevent
disqualification of county attorney’s office because subject attorney was
likely to be a necessary witness in movant’s trial).

¶16 As Romley indicates, an adequate screening mechanism is
“designed both to eliminate opportunities for inadvertent disclosure and to
provide a genuine appearance of a security wall around [Beane].” 184 Ariz.
at 228; see also Ariz. R. Sup. Ct. 42, ER 1.0(j)(1) (stating reasonably adequate
screening procedures include “adoption of mechanisms to deny access by
the screened lawyer . . . to . . . files or other information, including in
electronic form, relating to the screened matter[,]” “written notice that a
screen is in place[,]” “acknowledgment by the screened lawyer . . . of the
obligation not to communicate[,]” and “periodic reminders of the screen”).

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Decision of the Court

CONCLUSION

¶17 We vacate the superior court’s order denying Davey’s motion
to disqualify MCAO and remand for an evidentiary hearing consistent with
this decision.

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

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