Arizona history: Law in Hobbs abortion order was used in Bolles case
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Don Bolles' bombed-out Datsun on display in the Newseum in Washington. Photo: Jeremy Duda/Axios
The law that Gov. Katie Hobbs recently used to strip county attorneys of authority over abortion-related prosecutions and give it to Attorney General Kris Mayes may have only been used once before — the controversial 1976 decision involving the investigation into the assassination of Arizona Republic reporter Don Bolles.
Flashback: Because of the high-profile and sensitive nature of the case, the AG's office would lead the investigation while working with the Maricopa County Attorney's Office.
- After County Attorney Moise Berger resigned in July 1976, the Board of Supervisors appointed Don Harris to serve out the final months of his term.
- While the county attorney's office previously kept a low profile in the case, Harris gave interviews and made ill-advised public statements.
- Those statements contributed to a mistrial for suspect John Adamson in October 1976.
The intrigue: At the request of Attorney General Bruce Babbitt, Gov. Raul Castro used the law that Hobbs is now invoking to remove the county attorney from the case and give it exclusively to the AG's Office.
- Harris asked the Arizona Supreme Court to overturn Castro's order, arguing in a court briefing the statute didn't permit governors to remove county attorneys from criminal cases.
- Babbitt and Castro argued it was both justified and permissible, and the governor's power to act would be limited only if the decision were arbitrary and capricious.
- The state Supreme Court declined to accept the case after hearing oral arguments, permitting Castro's order to stand and permanently removing the Maricopa County Attorney's Office from the Bolles case.
Between the lines: The Supreme Court's refusal to review Castro's order means the law that Hobbs is using to grant Mayes control of abortion prosecutions has never been litigated by the judiciary.
- The AG's office isn't aware of any other times the law has been used to take a case away from a county attorney, though it appears to have been on the books since at least 1953, and a similar law was enacted in 1928.
- The most similar situation Babbitt, Castro and Harris cited in court filings was a 1947 case when the governor ordered the AG to prosecute the Navajo County treasurer over misappropriated money.
- In a 1967 case, the Supreme Court overturned a Superior Court judge's order that the attorney general take a case from the Cochise County Attorney's Office, ruling the AG can only supplant a county attorney when "directed to take over these duties … upon specific action taken by the Governor."
Why it matters: Disaffected county attorneys, GOP lawmakers or others could go to court to challenge Hobbs' executive order.
- Some critics have questioned its legality and constitutionality.