State of Arizona v. Michael Martin Creel

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Petitioner,

v.

MICHAEL MARTIN CREEL,
Respondent.

No. 2 CA-SA 2025-0077
Filed December 22, 2025

Special Action Proceeding
Pima County Cause No. CR20244460001
The Honorable Christopher C. Browning, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Laura Conover, Pima County Attorney
By J. William Brammer Jr., James W. Rappaport, and Rachel Stiles, Tucson
Counsel for Petitioner

Law Offices of Lawrence Y. Gee PLLC, Tucson
By Lawrence Y. Gee

and

Resnick Law Group PLLC, Tucson
By Mark R. Resnick
Counsel for Respondent
 STATE v. CREEL
Opinion of the Court

OPINION

Presiding Judge Vásquez authored the opinion of the Court, in which Judge
Gard and Judge Kelly concurred.

V Á S Q U E Z, Presiding Judge:

¶1 In this special-action proceeding, the State of Arizona seeks
relief from the superior court’s order granting Michael Creel’s motion to
vicariously disqualify the Pima County Attorney’s Office (PCAO) from
continued representation in the criminal prosecution against him. The state
argues the court abused its discretion in disqualifying PCAO based solely
on the appearance of impropriety—the fourth factor under Gomez v.
Superior Court, 149 Ariz. 223 (1986). Because challenges to vicarious
disqualification orders are properly challenged by special-action
proceedings, we grant special-action jurisdiction. And, because we agree
that vicarious disqualification is improper on this record, we grant relief.

Factual and Procedural Background

¶2 In 2024, a grand jury indicted Creel for second-degree
murder, aggravated driving under the influence of an intoxicant with a
suspended driver license, and felony criminal damage following a
November 2024 vehicular accident that led to the death of John McLean.
McLean had lost his bid for election to the Arizona State Senate the previous
week and conceded his loss the night before the accident.

¶3 In June 2025, Creel filed a motion to vicariously disqualify
PCAO from prosecuting the case. He contended that PCAO’s continued
involvement created an appearance of impropriety because McLean had
contributed $700 to the reelection campaign of Pima County Attorney
Laura Conover; McLean and Conover had appeared on the same political
ticket; and McLean and Conover had publicly supported one another
during their recent political campaigns. He argued these circumstances
created an appearance that Conover—and by extension PCAO—would
harbor a heightened sympathy for McLean as a victim. He also argued that
PCAO would prosecute Creel’s case more harshly than other similarly
situated defendants.

¶4 After hearing oral argument, the superior court ordered
PCAO disqualified from the case because the relationship between Conover
and McLean produced a “very clear and very pronounced appearance of

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Opinion of the Court
impropriety.” The court concluded that the following facts “reek[ed] of, at
minimum, appearance of impropriety”: (1) Conover and McLean had
appeared on the same ballot; (2) they had “appeared at various campaign
events together”; (3) they had endorsed one another and “said kind,
complimentary things about one another”; (4) McLean had made three
contributions totaling $700 to Conover’s campaign; and (5) Conover and
McLean were both members of the Democratic Party. It further reasoned
that, as head of PCAO, Conover could not screen herself from the
prosecution sufficiently to satisfy a reasonable perception that the
prosecution appeared fair. This petition for special action followed.

Special-Action Jurisdiction

¶5 We routinely handle challenges to orders concerning
vicarious disqualification by special-action review. See, e.g., State v. Marner, 251 Ariz. 198, ¶ 6 (2021); Turbin v. Superior Court, 165 Ariz. 195, 196 (App.
1990); State ex rel. Romley v. Superior Court, 184 Ariz. 223, 225 (App. 1995);
see also Ariz. R. P. Spec. Act. 12(a) (“Whether to accept jurisdiction of an
appellate special action is within the court’s discretion . . . .”).
Special-action jurisdiction is appropriate when, as here, “the remedy by
appeal is not equally plain, speedy, and adequate.” Ariz. R. P. Spec. Act.
2(b)(2). Therefore, we accept special-action jurisdiction.

Discussion

¶6 The state argues the record does not support the superior
court’s finding of a “very clear and very pronounced appearance of
impropriety.” We review the decision on a motion for vicarious
disqualification for abuse of discretion. See State v. Chambers, 255 Ariz. 464,
¶ 13 (2023). The superior court “has the greatest familiarity with the facts
and visibility of a case before it,” and thus we “will not ordinarily
second-guess . . . [its] determination regarding public perception of a fair
trial in deciding whether to disqualify a prosecutor’s office.” Marner, 251
Ariz. 198, ¶¶ 12, 17. But, as the party seeking disqualification, Creel has the
burden to establish the grounds for disqualification. See Romley, 184 Ariz.
at 228. To sustain this burden, Creel must provide “sufficient reason[s]”
why disqualification is warranted. Amparano v. ASARCO, Inc., 208 Ariz.
370, ¶ 24 (App. 2004) (quoting Alexander v. Superior Court, 141 Ariz. 157, 161
(1984)).

¶7 Courts apply Gomez’s four-factor test when considering
whether to disqualify an entire prosecutor’s office, including when, as here,
the basis for the motion is the appearance of impropriety. Chambers, 255
Ariz. 464, ¶ 16. These factors are:

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Opinion of the Court
(1) whether the motion is being made for the
purposes of harassing the defendant, (2)
whether the party bringing the motion will be
damaged in some way if the motion is not
granted, (3) whether there are any alternative
solutions, or is the proposed solution the least
damaging possible under the circumstances,
and (4) whether the possibility of public
suspicion will outweigh any benefits that might
accrue due to continued representation.

Gomez, 149 Ariz. at 226 (quoting Alexander, 141 Ariz. at 165). Although no
single factor is dispositive, we “view with suspicion motions by opposing
counsel to disqualify a party’s attorney based upon conflict of interest or
appearance of impropriety.” Id. A defendant may interfere with the
attorney-client relationship of his opponent only in “extreme
circumstances.” State ex rel. Mitchell v. Palmer, 257 Ariz. 187, ¶ 12 (2024)
(quoting Alexander, 141 Ariz. at 161).

¶8 Creel has not carried his burden of demonstrating that such
“extreme circumstances” exist here. See id. The superior court disqualified
PCAO based solely on its determination that Creel had satisfied the fourth
Gomez factor—that the possibility of public suspicion outweighed any
benefit to PCAO’s continued representation. But—even assuming Creel
had provided sufficient evidence to support his allegations regarding
Conover and McLean’s relationship—we disagree that a “very clear and
very pronounced appearance of impropriety” arises from these facts. As
the state points out, if political alliance alone could disqualify an elected
county attorney from representing a party, PCAO would potentially be
subject to disqualification any time it represents elected officials of the same
party as the county attorney who appeared on the same ballot, despite the
fact that PCAO routinely represents various elected officials and the civil
agencies they represent. See, e.g., A.R.S. § 11-532 (county attorney tasked
with, among other duties, advising county board of supervisors,
representing school districts and school district governing board members,
and defending property tax appeals brought against county tax assessor
pursuant to A.R.S. § 42-16208).

¶9 And, absent extraordinary circumstances not present here,
moderate campaign contributions such as McLean’s cannot form the basis
for the type of “extreme circumstances” contemplated by our vicarious
disqualification jurisprudence. Mitchell, 257 Ariz. 187, ¶ 12 (quoting
Alexander, 141 Ariz. at 161). To hold otherwise would open the door to
routine disqualification of county attorneys and their offices based solely

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Opinion of the Court
on party affiliation or campaign contributions, a result that could seriously
disrupt the functioning and efficiency of PCAO and other county attorney
offices. In so concluding, we note that our supreme court has found no
conflict existed and no public suspicion was implicated in a situation where
a county attorney’s connections with the defendant seeking disqualification
were far greater. See Chambers, 255 Ariz. 464, ¶¶ 27, 30 (county attorney’s
prior representation of defendant did not present conflict or raise public
suspicion because, among other reasons, prior matters not substantially
related to current criminal prosecution).

¶10 Further, although the superior court made no express
findings as to the Gomez factors, Creel has not demonstrated that the
remaining factors weigh in his favor. See id. ¶ 17 (appellate court may
independently consider Gomez factors when superior court does not
expressly do so); see also Marner, 251 Ariz. 198, ¶ 12 (encouraging superior
courts to “make the determination based expressly on [Gomez] factors”).
The first factor, whether the motion is being made for the purpose of
harassment, is not at issue here. The second Gomez factor asks whether the
party bringing the motion to disqualify is likely to suffer prejudice if the
motion is not granted. See Marner, 251 Ariz. 198, ¶ 15. In response to the
state’s petition for special-action review, Creel contends he will face
“substantial potential damage,” citing trial delays resulting from this
special-action proceeding and a more generalized potential damage to
public confidence due to the perception of bias raised by PCAO’s continued
prosecution. But reinstating PCAO as the prosecuting agency will not
inherently lead to further delay in the trial proceedings. To the contrary,
PCAO’s continued representation will avoid delays that would occur if the
prosecution were transferred to another agency unfamiliar with the facts of
the case. And damage to public confidence is not a relevant consideration
under the second Gomez factor—which is concerned with personal harm to
the defendant—and instead is properly addressed under the fourth factor.
See Chambers, 255 Ariz. 464, ¶¶ 19, 22 (second factor concerns damage to
party seeking disqualification).1

¶11 As to the third Gomez factor, whether viable alternative
solutions exist to vicarious disqualification, “disqualifying an entire
prosecutor’s office is a drastic remedy that should be undertaken only
where no lesser alternative would cure the problem.” Chambers, 255 Ariz.
464, ¶ 29; see also Marner, 251 Ariz. 198, ¶ 16. Even assuming, for the sake

1Creel has not renewed his contention that he received an
unfavorable plea bargain resulting from Conover’s involvement with the
case. We therefore do not address it.

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Opinion of the Court
of argument, that Conover’s direct involvement with Creel’s prosecution
had an appearance of impropriety, adequate alternatives to PCAO’s
vicarious disqualification exist here. See Chambers, 255 Ariz. 464, ¶ 29
(declining to analyze third Gomez factor because defendant failed to
establish “a problem in need of an ‘alternate solution’”). Our rules of
professional conduct expressly contemplate that a governmental officer’s
conflict is not necessarily imputed to the entire governmental agency. See
Ariz. R. Sup. Ct. 42, ER 1.11(c); see also Romley, 184 Ariz. at 228 (“In most
cases an effective screening mechanism will satisfy the defendant’s interests
and permit implementation of the policy change underlying ER 1.11(c).”).
Although on occasion a conflict may rise to the magnitude that effective
screening is impossible, see, e.g., Hamlet v. State, No. 2 CA-SA 2025-0062,
¶¶ 20-22, 2025 WL 3522409 (Ariz. App. Dec. 9, 2025), Creel has not
demonstrated that such circumstances exist here. See Mitchell, 257 Ariz. 187,
¶ 28 (disqualification motions require fact-intensive inquiries). For
example, Creel has not provided any support, such as an affidavit or
testimony, that Conover was directly involved with the prosecution. He
has not challenged PCAO’s apparent agreement to screen Conover from
future involvement with his case. And he has not argued, here or to the
superior court, that Conover cannot be meaningfully screened under the
circumstances. Thus, the third Gomez factor weighs against
disqualification.

¶12 In sum, the superior court’s finding that PCAO’s continued
involvement in Creel’s prosecution presents a clear and pronounced
appearance of impropriety is not supported by the record. Creel has not
shown that he is likely to be damaged by PCAO continuing to represent the
state in his criminal prosecution, and the remote possibility of public
suspicion raised here can be adequately remedied by screening Conover
from the case, as contemplated by ER 1.11. See Chambers, 255 Ariz. 464, ¶ 31.

Disposition

¶13 For the foregoing reasons, we accept special-action
jurisdiction, vacate the superior court’s order disqualifying PCAO, and
reinstate PCAO as the prosecuting agency. We remand to the superior
court for further proceedings.

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