TOMBSTONE — An attorney’s petition that pending DUI charges against his clients and other defendants in Tombstone be dropped because of a contention that the city attorney has no jurisdiction to prosecute criminal cases, was dismissed Wednesday by a superior court judge who relied in part on the municipality’s 139-year-old charter.
Cochise County Superior Judge Laura Cardinal dismissed the complaint filed by attorney Robert Zohlmann challenging the authority of Tombstone City Attorney P. Randall Bays — and anyone Bays would designate — to prosecute criminal cases in the city’s magistrate court.
At a hearing Wednesday, the judge relied on case law for her decision, but she also cited the city’s 1881 charter, which she said “remains viable.”
Cardinal said that the language of the charter — which she called “old” — allows the city attorney and the city court to “act on behalf of the state.”
Zohlmann had argued that Bays and attorney Roger Contreras — whom Bays contracted with to act as a city prosecutor for Tombstone — only have the authority to prosecute violations of city ordinances, not criminal cases.
“The (city) prosecutor is not authorized to practice in the criminal court, that’s the county attorney,” Zohlmann told Cardinal.
But Bays, who was on speaker phone during the hearing, also invoked the charter, saying it gives him authority to prosecute criminal matters.
In his written response to Zohlmann’s petition/complaint, Bays cited Article V, Section three of the Tombstone charter: “It shall be the duty of the city attorney to prosecute in behalf of the mayor and common council of the city of Tombstone all criminal cases of or violation of city ordinances and resolutions pending in the recorder’s court, and in all other courts upon appeal thereto and to attend to all suits, matters and things in which the city may legally be interested; to give his advice or opinion in writing whenever required by the mayor or common council, and to do and perform all such things touching his office as by the common council may be required of him.
The city attorney shall draft and approve the form of all official and other bonds required by this act, or any ordinance, resolution, motion or order of the common council before the same are submitted to the common council or mayor for final approval as hereinbefore provided, and no such bond shall be approved by the mayor or common council until the city attorney shall signify his approval of the form of such bonds. (2-21-1881)”
The plaintiffs in Zohlmann’s complaint are Tombstone residents Jack Feather and Steven Staly, both defendants in 2019 DUI cases in the city’s magistrate court. Zohlmann also listed the criminal cases of seven other individuals he represents who are being prosecuted in the same court.
Initially, Zohlmann filed a motion with Tombstone Magistrate Kenneth Curfman in 2019, asking that Bays and Contreras be disqualified from trying criminal cases in that court. He also requested that charges be dropped against his clients.
Curfman, named as the main plaintiff in the complaint addressed in Wednesday’s hearing, denied the motion.