State of Arizona v. Hon. chambers/henderson

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,
Petitioner,

v.

HON. BRYAN B. CHAMBERS, JUDGE OF THE SUPERIOR COURT OF THE STATE
OF ARIZONA, IN AND FOR THE COUNTY OF GILA,
Respondent Judge,

HEATHER ELAINE HENDERSON,
Real Party in Interest.

No. CR-21-0388-PR
Filed August 7, 2023

Appeal from the Superior Court in Gila County
The Honorable Bryan B. Chambers, Judge
Nos. S0400CR201800269
S0400CR201900011
S0400CR201900012
DISQUALIFICATION ORDER VACATED

Order of the Court of Appeals, Division Two
2 CA-SA 2021-0053
Filed Nov. 16, 2021

COUNSEL:

Bradley D. Beauchamp, Gila County Attorney, Diana L. Kanon (argued),
Joseph E. Collins, Deputy County Attorneys, Globe, Attorneys for State of
Arizona

Jeffrey B. Cloud (argued), JCloud Law, PLLC, Scottsdale, Attorney for
Heather Elaine Henderson
 STATE V. HON. CHAMBERS/HENDERSON
Opinion of the Court

Mikel Steinfeld (argued), Arizona Attorneys for Criminal Justice, Phoenix,
Attorney for Amicus Curiae Arizona Attorneys for Criminal Justice

JUSTICE MONTGOMERY authored the Opinion of the Court, in which
CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and
JUSTICES BOLICK, LOPEZ, BEENE, and KING joined.

JUSTICE MONTGOMERY, Opinion of the Court:

¶1 We consider whether a county attorney’s prior representation
of a criminal defendant creates an appearance of impropriety in a current
prosecution, warranting disqualification of an entire county attorney’s
office, absent a finding that a substantial relationship exists between the two
matters. Because the current prosecution for a drug sale offense is not the
same nor substantially related to the prior representation in a marriage
annulment matter, we hold that there is no appearance of impropriety upon
which to disqualify the office.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 Before 2008, Elaine Henderson (Henderson) married Gary
Roberts (Roberts), believing she was divorced from her first husband,
Charles Henderson (Charles). While Henderson was in prison for
possession of a dangerous drug for sale, she learned that her former sister-
in-law sought to have her charged with bigamy because she never finalized
her divorce from Charles. Consequently, Henderson’s father retained
Bradley Beauchamp (Beauchamp) on her behalf to secure an annulment of
her marriage to Charles.

¶3 Beauchamp and Henderson never met in person. They only
communicated by telephone and mail. Henderson does not remember
much about the representation, but she recalls that she may have received,
signed, and mailed documents. She never discussed with Beauchamp
why she was in prison or the nature of the underlying charges. She does
not remember discussing her relationship with Roberts but believes she
must have provided information about his location and their marriage.
Eventually, Beauchamp obtained a default annulment and his
representation of Henderson ended in 2009.
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 STATE V. HON. CHAMBERS/HENDERSON
Opinion of the Court

¶4 In 2010, while still in private practice, Beauchamp represented
the state in a child support enforcement matter against Henderson. In
court and on the record, Beauchamp asked Henderson to waive any
potential conflict due to his prior representation in the annulment matter,
which she did. In 2012, Beauchamp was elected Gila County Attorney and
currently leads the Gila County Attorney’s Office (“GCAO”).

¶5 In May 2018, Henderson was arrested for the transport and
possession of methamphetamine for sale. Detective Richard Rosales
interviewed Henderson concerning her connection to the Aryan
Brotherhood (the “AB”) through her husband, Roberts. The purpose of
the interview was to determine if Henderson had any information that
would make it worthwhile to offer a plea agreement conditioned on her
cooperation. Henderson told Detective Rosales that her husband’s name
was “Grizz,” and that he had “probated” under an AB member but was
never fully “patched.” 1 She also told Detective Rosales that she knew
other people affiliated with the AB but did not want to provide their
information. Detective Rosales consulted with now County Attorney
Beauchamp about offering a plea agreement based on Henderson’s
information, but no such offer was ever made.

¶6 GCAO charged Henderson for the crime of possession of
methamphetamine for sale on May 30, 2018, and eventually extended a plea
offer with a stipulated thirty-two-year prison term. In early 2019,
Henderson filed a motion to disqualify GCAO based upon an appearance
of impropriety given Beauchamp’s previous representation in the marriage
annulment matter. The trial court denied the motion after considering the
four-factor inquiry, which is set forth in Gomez v. Superior Court, 149 Ariz.
223 (1986):

(1) whether the motion is being made for the purposes of
harassing the defendant; (2) whether the party bringing

1 A “probate” is a prospective gang member. State v. Riley, 248 Ariz. 154,
166 ¶ 2 (2020). A full member of a gang is denoted by a signifying tattoo
or “full-patch.” See, e.g., United States v. Mongol Nation, 56 F.4th 1244, 1246
(9th Cir. 2023).

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 STATE V. HON. CHAMBERS/HENDERSON
Opinion of the Court

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.

¶7 The trial court found: (1) there was no evidence from which it
could conclude Henderson made the motion for the purpose of harassment;
(2) Henderson would not be damaged by denial of the motion because there
was nothing in Beauchamp’s previous representation that could be used
against her; (3) other alternative solutions to disqualification existed that
were less damaging than disqualification; 2 and (4) public suspicion of
GCAO’s continued prosecution did not outweigh its potential benefits
because there was no allegation that GCAO was giving Henderson any
preferential treatment.

¶8 Additionally, the court reviewed Ethical Rule (“ER”) 1.9 and
found that the two cases—the prior annulment matter and the instant
prosecution—were not substantially related. The court therefore
concluded that there was no appearance of impropriety and denied
Henderson’s motion.

¶9 In 2021, Henderson renewed her motion to disqualify GCAO
based upon this Court’s opinion in State v. Marner ex rel. Cnty. of Pima, 251
Ariz. 198 (2021), and on new information not previously considered. In
her motion, Henderson theorized that she could have provided confidential
information to Beauchamp concerning Roberts’ AB affiliation and that this
may have caused him to form a poor opinion of her, resulting in him
“throw[ing] the book” at her with “extremely harsh” plea offers.

2 The other possible solution arose in the context of Henderson’s concerns
about the State’s use of a 2003 charge of child abuse or the bigamy situation
in 2008 as prior bad acts. In a minute entry from the first disqualification
hearing, the court entered an order “precluding State from mention of prior
any 2003 bigamy and/or child abuse allegations for which Defendant was
not convicted of.”
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 STATE V. HON. CHAMBERS/HENDERSON
Opinion of the Court

Henderson also argued that, under State v. Hursey, 176 Ariz. 330 (1993), an
appearance of impropriety existed due to the potential that, during the
prior representation, she and Beauchamp shared a confidential
communication regarding Roberts. Accordingly, Henderson asserted that
the court should presume prejudice to her and disqualify GCAO.

¶10 The State opposed the renewed motion, arguing that no good
cause warranted reconsideration and that the Gomez factors did not support
disqualification.

¶11 The trial court heard argument from the parties on
Henderson’s motion and then recessed to review Hursey, which involved
the disqualification of a prosecutor who had formally represented a
defendant in a prior criminal matter. 176 Ariz. at 331. Reading portions
of Hursey into the record, the trial court noted that “[t]he mere fact of
confidential communications in the prior relationship is enough to presume
prejudice to the defendant.” Id. at 334. The court acknowledged,
however, that Beauchamp’s prior representation of Henderson involved an
annulment rather than a criminal matter and that Henderson “hasn’t really
shown that there was some confidential communication that has now
prejudiced her here.” Nonetheless, the court felt bound to follow Hursey
and assume prejudice to Henderson that warranted disqualification of the
entire GCAO.

¶12 The State petitioned for special action review, but the court of
appeals declined to accept jurisdiction in a split decision. We granted
review to clarify our holding in Marner and to consider whether the trial
court abused its discretion in disqualifying the entire GCAO by finding an
appearance of impropriety without first finding that a substantial
relationship existed between the prior representation and the current
prosecution. The disqualification of a prosecutor’s office is also a matter
of statewide importance and is likely to recur. We have jurisdiction
pursuant to article 6, section 5(3) of the Arizona Constitution.

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 STATE V. HON. CHAMBERS/HENDERSON
Opinion of the Court

II. DISCUSSION

¶13 We apply an abuse of discretion standard to a trial court’s
decision to disqualify counsel. Marner, 251 Ariz. at 200 ¶ 8. However,
“[w]e review conclusions of law de novo.” Id. “An error of law in
reaching a discretionary conclusion may constitute an abuse of discretion.”
State v. Thompson, 252 Ariz. 279, 290 ¶ 26 (2022).

A. Our Holding In Marner

¶14 We begin by clarifying our holding in Marner. Henderson
argued before the trial court on her renewed motion that Marner
represented an issue of first impression concerning an extension of the
four-factor Gomez inquiry to disqualify a prosecutor’s office based on an
appearance of impropriety. According to Henderson, Marner “is the first
time the Supreme Court has said an appearance of impropriety by itself is
enough to kick an entire prosecuting agency off of the case.” The State
argued that Marner merely reiterated the analysis previously set forth in
Gomez.

¶15 While Henderson may have accurately characterized
Marner’s result, that characterization is not what made Marner a case of first
impression. We stated that “[b]efore us is an issue of first impression for
this Court: whether an appearance of impropriety, arising from a prosecutor's
actual misconduct, may be imputed to disqualify an entire prosecutor’s
office.” Marner, 251 Ariz. at 199 ¶ 1 (emphasis added). Thus, the issue of
first impression in Marner was whether actual misconduct required
disqualification of an entire prosecutor’s office, not the use of the Gomez
factors to address an actual or alleged appearance of impropriety.

¶16 Although we did say in Marner that this Court had never
applied Gomez beyond the actual conflict of interest or misconduct contexts,
we noted that Gomez “held that [an] appearance of impropriety ‘survives as
a part of conflict of interest.’” Marner, 251 Ariz. at 200 ¶ 10 (quoting
Gomez, 149 Ariz. at 225). We then clarified that the Gomez factors are to be
used “whenever a defendant seeks to disqualify an entire prosecutor’s
office, regardless of whether the basis for the motion is a conflict of interest,
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 STATE V. HON. CHAMBERS/HENDERSON
Opinion of the Court

misconduct, or appearance of impropriety.” Id. ¶ 11. Marner thus did
not represent an “extension” of Gomez to matters involving an appearance
of impropriety. It simply restated the circumstances in which the factors
are to be used. Furthermore, Marner does not stand for the proposition
that an allegation of an appearance of impropriety may, on its own, call for
the disqualification of an entire prosecutor’s office. See also Gomez, 149
Ariz. at 225 (stating that “[i]t does not necessarily follow that [an
appearance of impropriety] must disqualify [a prosecutor] in every case”).

¶17 The trial court accurately noted in the rehearing that what we
said in Marner confirmed the analysis that it was required to consider—and
did consider—in denying Henderson’s first motion to disqualify.
Nevertheless, the court concluded that Hursey required disqualification of
GCAO because “[t]he mere fact of confidential communications in the prior
relationship is enough to presume prejudice to the defendant.” 176 Ariz.
at 334. Based on Hursey, it found an appearance of impropriety and
granted Henderson’s motion to disqualify GCAO without considering the
Gomez factors or determining whether a substantial relationship existed
between the matters in question—unlike what the court did in the first
hearing. This was error. Because the trial court did not do so, as in
Marner, we review the Gomez factors to determine whether the trial court
abused its discretion in granting Henderson’s renewed disqualification
motion.

B. Application Of Gomez Factors

1. Harassment

¶18 The first Gomez factor, “whether the motion is being made for
the purposes of harass[ment],” Gomez, 149 Ariz. at 226 (quoting Alexander
v. Superior Court, 141 Ariz. 157, 165 (1984)), is not at issue in this case.

2. Damage to movant

¶19 The parties focus their arguments on the second factor:
“whether the party bringing the motion will be damaged in some way if the
motion is not granted.” Id. (quoting Alexander, 141 Ariz. at 165). The
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 STATE V. HON. CHAMBERS/HENDERSON
Opinion of the Court

gravamen of the trial court’s analysis in both the first hearing and the
rehearing was whether Henderson would be prejudiced by GCAO’s
continued prosecution. As noted, the court presumed in the rehearing
that, based on Hursey, Henderson would be prejudiced.

¶20 In Hursey, the prosecutor alleged the defendant’s two prior
convictions to enhance the sentence. 176 Ariz. at 331. Problematically,
the prosecutor had served as the defendant’s attorney in those very same
cases. Id. After the jury found the defendant guilty, the prosecutor
apparently recognized the problem with his prior representation and called
on a different deputy county attorney to prove the existence of the two prior
convictions. See id. The issue before the Court concerned whether the
prior representation of the defendant should have resulted in the
prosecutor’s disqualification from the case entirely. Id. at 332. The Court
found In re Ockrassa, 165 Ariz. 576 (1990), dispositive. Hursey, 176 Ariz.
at 332.

¶21 Ockrassa involved a defendant facing his third driving under
the influence (“DUI”) charge. 165 Ariz. at 576. The prosecutor had
served as the defense attorney in the two previous DUIs alleged as
predicate offenses. Id. Finding that the prior DUI convictions were at
issue in the pending prosecution, the Court concluded that the matters were
substantially related and that the prosecutor had violated ER 1.9, stating:

We do not believe that, in the context of multiple DUI offenses, a
“substantial relationship” is established only if the prior
conviction is an element of the subsequent offense. One of the
aims of ER 1.9 is to protect the client. . . . Respondent’s
conduct in prosecuting [his former client] created a
substantial danger that confidential information revealed in
the course of the attorney/client relationship would be used
against [the former client] by . . . his former attorney.

Id. at 578 (emphasis added) (internal citation omitted).

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 STATE V. HON. CHAMBERS/HENDERSON
Opinion of the Court

¶22 The Hursey court likewise concluded:

The facts in this case are similar; the prior convictions were
“directly in issue,” and the prosecutor should have
disqualified himself from the prosecution. It is not enough
that the prosecutor had a colleague prove the prior
convictions; the prosecutor remained in charge of the
prosecution, and the “substantial danger that confidential
information revealed in the course of the attorney/client
relationship would be used against [the defendant]” was still
present.

176 Ariz. at 332 (alteration in original). Although the facts of Hursey are
readily distinguishable from Henderson’s case, Hursey underscores the
principle that a presumption of prejudice based on confidential
communications to support disqualification requires a finding that the
matters in question are substantially related. In granting Henderson’s
motion, the trial court did not engage in such an analysis, which was error.

¶23 The “substantially related” standard is grounded in the Rules
of Professional Conduct. See Ariz. R. Sup. Ct. 42; see also State v. Sustaita, 183 Ariz. 240, 241–42 (App. 1995). ER 1.9(a) prohibits a lawyer from
representing a client in a matter that is “materially adverse to the interests
of [a] former client” when the lawyer represented the former client in “the
same or a substantially related matter.” ER 1.11(c)(1) forbids a lawyer who
is a public officer from participating “in a matter in which the lawyer
participated personally and substantially while in private practice.” See
also State ex rel. Romley v. Superior Court, 184 Ariz. 223, 228 (App. 1995) (“The
inquiry under ER 1.11(c) is whether the attorney personally and
substantially participated in the matter for which the prosecutor is seeking
to hold the defendant accountable.”).

¶24 The defendant bears the burden of proving such a substantial
relationship. See Alexander, 141 Ariz. at 161 (“The burden should be upon
the moving party to show sufficient reason why an attorney should be
disqualified from representing his client.”); Amparano v. ASARCO, Inc., 208
Ariz. 370, 378 ¶¶ 31-33 (App. 2004) (affirming the trial court’s holding that
former representation and the present matter were not “substantially

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 STATE V. HON. CHAMBERS/HENDERSON
Opinion of the Court

related” because the attorney’s access to former client’s information was too
speculative and the former client failed to carry its burden to show the prior
work was substantially related to the present action).

¶25 Unremarkably, Arizona courts have found a substantial
relationship where a criminal defense attorney ceased representing his
client to work for the government agency engaged in the ongoing
prosecution. See Turbin v. Superior Court, 165 Ariz. 195, 199 (App. 1990)
(affirming disqualification of the Navajo County Attorney’s Office where a
defendant’s criminal defense attorney withdrew mid-representation to join
the Office); see also State v. Latigue, 108 Ariz. 521, 522–23 (1972) (finding a
substantial relationship when deputy public defender who worked as
co-counsel for the defendant left to become chief deputy county attorney
for the prosecuting agency). As noted previously, this Court has also
found a substantial relationship when an attorney prosecutes someone who
was formerly their client, and the subsequent prosecution is a different
matter but akin to “switching sides.” Ockrassa, 165 Ariz. at 578–79.
However, we limited this principle to scenarios involving crimes of the
same type. Id. at 579 (considering representation on a DUI and then
prosecuting a subsequent, separate DUI as more “akin to ‘switching sides’”
than if a subsequent prosecution involved forgery).

¶26 Obtaining a marriage annulment and prosecuting a drug
crime are two very different matters without any factual nexus. The only
similarity is that Henderson was married to Roberts at the time she sought
an annulment of her previous marriage and was later questioned about
Roberts’ affiliation with the AB after her drug arrest. The annulment
representation and the current prosecution thus are not the same or
substantially related and the current prosecution is not even remotely akin
to switching sides.

¶27 Nonetheless, Henderson argues that she may have given
Beauchamp confidential information relating to Roberts’ AB involvement
during his representation of her and that this contributed to the harsh

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 STATE V. HON. CHAMBERS/HENDERSON
Opinion of the Court

charges and lack of a more lenient plea offer. 3 However, she does not
point to any specific confidential communication. In fact, throughout her
testimony in the initial hearing on disqualification, she repeatedly stated
she could not remember sharing any specific information. Consequently,
because there is no basis upon which to conclude that Henderson shared
any confidential information with Beauchamp that is relevant or remotely
related to the instant prosecution, Hursey does not control for purposes of
presuming prejudice based on confidential communications from the prior
representation. Ultimately, Henderson has not provided evidence that
she would be “damaged” if her motion to disqualify GCAO was not
granted.

¶28 Before considering the third factor, we note that the State
argues the substantial relationship inquiry should be the only step in the
disqualification analysis. However, we made clear in Marner that, when a
defendant seeks disqualification based on an appearance of impropriety, a
trial court should consider all “these factors,” not just one. Part II.A.
And the substantial relationship inquiry may not always be significant.
For example, in Marner, actual misconduct served as a basis for finding
prejudice to the defendant. 251 Ariz. at 201 ¶ 15.

3. Alternative solutions

¶29 The third factor addresses “whether there are any alternative
solutions, or [if disqualification is] the least damaging [option] under the
circumstances.” Gomez, 149 Ariz. at 226 (quoting Alexander, 141 Ariz.
at 165). This factor recognizes that disqualifying an entire prosecutor’s
office is a drastic remedy that should be undertaken only where no lesser
alternative would cure the problem. Given the incongruent nature of an
annulment and a prosecution for the sale of drugs and Henderson’s failure
to marshal any evidence of confidential communications during the prior

3 Additionally, the State noted in the renewed motion hearing that the
information regarding the AB was known to law enforcement prior to the
annulment matter based on an investigation of Henderson in 2003. See
Alexander, 141 Ariz. at 163 (observing that information in the public record
is not privileged).
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 STATE V. HON. CHAMBERS/HENDERSON
Opinion of the Court

representation, we are not persuaded that there is a problem in need of an
“alternate solution.”

4. Public suspicion

¶30 Finally, the fourth factor concerns whether “the possibility of
public suspicion will outweigh any benefits that might accrue due to
continued representation.” Id. (quoting Alexander, 141 Ariz. at 165). The
record here does not reflect that risk. As the trial court noted in the first
hearing, “the most obvious way of looking at public suspicion in a situation
like this, is that . . . the County Attorney would give some sort of
preferential treatment to a former client.” That is certainly not the case
here, where Henderson argues she has been given a harsh plea offer.
More persuasively, the prior representation in question was brief and
occurred in a completely unrelated matter ten years prior. Therefore, we
find no basis for any public suspicion of GCAO’s continued prosecution of
Henderson, let alone that such suspicion could “outweigh any benefits that
might accrue due to continued representation.” See id. (quoting Alexander,
141 Ariz. at 165).

III. CONCLUSION

¶31 Henderson alleged an appearance of impropriety in the
current prosecution premised solely on the fact that the Gila County
Attorney previously represented her in a marriage annulment matter. For
the reasons stated, there is no substantial relationship between the matters
upon which to conclude that Henderson would be prejudiced by GCAO’s
continued prosecution. Based on our analysis under the Gomez factors, we
vacate the order disqualifying GCAO and reinstate GCAO as the
prosecuting agency.

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