Wilcox v. Apraio – the 9th Circuit Sidesteps Mediation Confidentiality Questions
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On Monday, the 9th Circuit handed down its decision in the Wilcox v. Apraio case, a decision that made the newspaper yesterday in Arizona. The case arises out of the Maricopa County wars, when former County Attorney and now gubernatorial candidate Andrew Thomas, with the help of Sheriff Joe Arpaio, indicted several sitting Superior Court judges and several members of the County’s Board of Supervisors, including Mary Rose Wilcox, over funds slated for a new county courthouse. The political drama here has been titillating, to say the least, and resulted in Thomas’ disbarment (opinion here) for using the prosecutor’s office to punish his political enemies. For more detailed background about the situation, here are two stories from the ABA journal (here and here).
Wilcox, along with virtually everyone who was indicted, sued the County under 42 USC §1983 and included several other state claims (malicious prosecution, infliction of emotional distress, etc.). Recognizing the potential for conflict of interest charges, the Board of Supervisors adopted a resolution giving the County Manager the authority to “enter into binding arbitration/mediation agreements” and to “enter into contracts as needed” to settle the various lawsuits.
Like all of the other cases arising out of the courthouse wars, Wilcox’s claim against the County went to mediation. She alleged that during mediation she reached a settlement agreement with the County through the County Manager for $975,000 only to have the County renounce the agreement two weeks later. She moved to enforce the agreement in District Court, and after a hearing, the Court granted her motion saying that the outcome was the same applying either federal or Arizona mediation privilege law. On appeal, the County argued that the District Court’s decision should have been based on the Arizona mediation privilege statute, ARS §12-2238, and that the District Court misapplied the statute and relied on evidence that should have been privileged.
Read original articleTags: Andrew Thomas, Arizona, County?s Board of Supervisors, Mary Rose Wilcox, Sheriff Joe Arpaio
