(CN) – Arizona’s Joe Arpaio, the self-proclaimed toughest sheriff in America, returned to court via attorneys Wednesday, complaining to the Ninth Circuit that a criminal contempt conviction dismissed two years ago is still hanging over his head.
The infamously hard-line former sheriff of Maricopa County earned President Donald Trump’s first pardon for the 2017 conviction. Now his lawyers want the entire case vacated to eliminate any possibility of future consequences.
Arpaio attorney Dennis Wilenchik told the three-judge panel Wednesday that the case is “judicial housekeeping,” that U.S. District Judge Susan Bolton’s decision not to vacate the conviction leaves Arpaio vulnerable to future consequences.
“That’s basically what we’re seeking – clarity that the conviction has no preclusive effect,” Wilenchik told the court. “If that judgment had said, ‘This case is hereby dismissed and all orders are vacated,’ that would resolve this issue.”
Bolton convicted Arpaio in a 2017 bench trial after he refused to comply with a court order to stop racially profiling Hispanic drivers, which the vociferous sheriff had publicly vowed to continue doing to rid his city of undocumented immigrants.
The appeal is of Bolton’s refusal two weeks later to vacate the conviction, which she had dismissed with prejudice after the pardon.
Wilenchik called the case moot “as practical matter” because of the presidential pardon, with the caveat that mootness is not a hard line. The case can be moot despite its potential collateral consequences, which normally would preclude mootness, he argued.
Those consequences make vacatur worth considering but don’t rise to the level that the case is not moot, Wilenchik told the panel. He argued that when a case becomes moot prior to or on appeal, the court must dismiss the case and vacate all prior orders.
U.S. Circuit Judge N. Randy Smith, a George W. Bush appointee, questioned whether vacatur should be automatic, because Arpaio voluntarily put himself in this legal position and such vacaturs require “happenstance.”
Wilenchik countered that the pardon was not voluntary.
“It’s done by executive fiat. Once it happens, it happens, regardless of whether the defendant likes it or not,” he told the court. Arpaio never asked or lobbied for a pardon, Wilenchik told the panel.
Smith countered with disbelief.
“I don’t believe your argument, as you’ve made it, has the ability to fly,” he said. “Is there any other argument you can make about vacatur?”
Wilenchik brought up equity.
“It’s not fair to say, ‘He’s forever convicted but can’t appeal that,’ and that would be the effect of leaving the court’s ruling as it is,” he said.
Christopher Caldwell, a special prosecutor appointed to the case by the Ninth Circuit, argued neither the automatic vacatur nor equity arguments hold water.
“This is not happenstance. This was a voluntary action in accepting the pardon,” he said. “This is the opposite of happenstance.”
Caldwell cited a letter Arpaio’s attorneys penned to a Trump attorney in the days before the pardon asking for it and indicating Arpaio would accept it, which he later did.
“It was urging the president to act quickly so that (Arpaio) would avoid the sentencing and avoid the possibility of a ‘perp walk,’ and that’s the language of Mr. Arpaio’s attorney,” Caldwell said.
“Mr. Arpaio got what he wanted from the pardon. There’s nothing inequitable or unfair about this result.”
The central issue is whether Bolton abused discretion by refusing to vacate all orders in the case, including the conviction, Caldwell said.
“The correct answer to this is that the district court did not abuse its discretion,” he said.
Smith asked Caldwell about the standards of review for vacatur, which include looking at the prospect of collateral consequences. That issue was never addressed directly in the case, but Bolton mentioned the review in a footnote on her ruling – hinting she had already considered the issues raised by Arpaio’s attorneys.
“So she’s saying, ‘This rule I have in my mind is that a pardon does one thing. It gets rid of any sentence, but there’s nothing further,’” Smith said.
Arpaio has dodged controversy for more than a decade.
His “tent city” for housing jail inmates in the Sonoran Desert, where summer temperatures often soar well past 100 degrees, and no-nonsense attitude earned him the nickname “Toughest Sheriff in America” – a label he wore proudly.
While he was sheriff, Arpaio was sued numerous times over civil rights violations. His defense has cost taxpayers roughly $70 million during his 24 years in office. Arpaio lost re-election in 2017 in the wake of his conviction.
U.S. Circuit Judges Jay Bybee, a George W. Bush appointee, and Daniel P. Collins, a Trump appointee, rounded out the panel.
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