Divorce case stirs ethics allegations about judge

This is not a story about a dog or a divorce, but that's where it begins.

After Mark Dixon and his ex-wife, Carol Johnson, terminated their marriage in late 2009, they got into a custody dispute over Shiloh, an Australian shepherd.

On Dec. 2 of that year, Dixon was pulled over by three plainclothes Pinal County sheriff's deputies with semiautomatic weapons, according to the incident report and court records.

Dixon alleges he was ordered to surrender the dog or face immediate arrest, so he acquiesced. A civil complaint he filed in federal court against a group of Pinal County deputies and Dixon's ex-wife says he argued that the disagreement with his wife was a civil matter and that deputies "did knowingly and willingly criminally extort property" by threatening arrest if he did not give up the dog. His lawsuit accused Pinal County officials of conspiracy.

In a court motion, Dixon asserted that his ex-wife, who then worked for a credit union, had assisted Pinal County Superior Court Judge William J. "Bill" O'Neil in obtaining a $300,000 loan prior to the canine-custody dispute.

Dixon, who represented himself during most of the case, speculated that O'Neil, who was not named as a defendant, returned the favor by influencing deputies to seize the dog.

Deputies denied any conspiracy, court records show, and O'Neil also denied any impropriety in an interview with The Arizona Republic. Defense attorneys successfully argued that the lawsuit, which sought $5 million in damages, was legally flawed and failed to show proof.

Thus began a four-year saga of intrigue involving O'Neil, who presides over discipline in the Arizona court system, and Dixon, a 49-year-old construction contractor who acknowledges a 1997 federal fraud conviction.

Dixon and at least two lawyers subjected to discipline by the State Bar of Arizona question the integrity of O'Neil, a key figure responsible for maintaining ethical standards within Arizona's justice system.

In a court motion filed last month, suspended Phoenix attorney Jane O. Ross asked that O'Neil be removed from Bar disciplinary proceedings against her because of "a pattern of corruption, failure to uphold the due-process rights of disciplinary respondents, failure to acknowledge conflicts of interest, abuses of discretion and power, dereliction of judicial duties and knowingly making false statements."

The motion to remove O'Neil contains allegations of criminal and unethical behavior. It relies heavily on information gathered by Dixon and includes an affidavit from him sworn under penalty of perjury.

A motion is made

"O'Neil is accused of illegal conduct in his personal affairs and ethical misconduct from the bench," Ross wrote. "It is patently unfair for a judge, so accused, to continue to sit in judgment of others similarly accused until such accusations are either confirmed or dispelled."

O'Neil did not respond to a Republic request for comment on Ross' motion, though he previously spoke to the newspaper and rejected challenges to his integrity. He has not withdrawn from the case, but he did assign another judge to conduct an April 17 hearing on Ross' motion.

Heather Murphy, director of communications for the Arizona Supreme Court, said she does not know what actions or investigations into the allegations the Supreme Court might launch, if any.

Dixon and O'Neil, both Casa Grande residents, have known one another since Dixon's daughter began boarding and riding her horse at O'Neil's stables years ago. In a sworn affidavit and formal complaints, Dixon said a friendship evolved. O'Neil characterizes Dixon as an acquaintance.

Either way, the two men agree that Dixon worked on O'Neil's property occasionally and that they talked often. The judge presided over Dixon's wedding. Dixon says they often discussed legal matters; O'Neil says that Dixon sometimes asked for legal advice but that he tried to brush off the queries.

After the dog incident, however, Dixon filed complaints or claims against O'Neil with the Arizona Supreme Court, the Commission on Judicial Conduct, the Attorney General's Office and the State Bar of Arizona.

Dixon shared copies with The Arizona Republic. The Commission on Judicial Conduct usually posts complaints online after its investigation, but it opted not to publish the complaint against O'Neil, a spokesman said.

Investigations and litigation proceeded at the same time the Supreme Court was setting up a new ethics system to deal with attorney misconduct — and appointing O'Neil as the state's first and only "presiding disciplinary judge."

For the past three years, O'Neil has overseen proceedings against scores of lawyers, including the disbarment of former Maricopa County Attorney Andrew Thomas, while fending off Dixon's accusations of unethical conduct. He is now considering approval of a proposed Bar reprimand against former U.S. Attorney Dennis Burke for ethics violations during a national political scandal involving the Operation Fast and Furious firearms investigation.

In an August 2012 complaint to the Commission on Judicial Conduct, Dixon told the story of Shiloh.

According to a copy of the complaint provided to The Republic, Dixon also asserted that O'Neil was his "ghost writer" in a Pinal County Superior Court motion and secretly authored an ethics complaint Dixon lodged against another judge.

Finally, he wrote that O'Neil acted improperly — or created an appearance of conflict — in transactions involving a residence owned by the judge's mother-in-law.

According to public records, Sarah Holmes, O'Neil's mother-in-law, executed a short sale of her Casa Grande house to a family friend. The friend subsequently sold a half-interest in the dwelling to O'Neil. Holmes continued to reside at the house — as a renter, according to O'Neil.

In an interviewlate last year, O'Neil told The Republic that he did not author legal papers for Dixon, did not enlist deputies in a scheme against him and did not engage in a fraudulent real-estate scheme. "I categorically deny the allegations," he said.

Former Arizona Supreme Court Chief Justice Stanley Feldman, who represents O'Neil, said the judge has been smeared by a felon who bears a grudge. "There's really nothing to it. ... This is just a plain vendetta," Feldman said.

The Commission on Judicial Conduct dismissed Dixon's complaints after an initial review. A federal judge threw out the conspiracy lawsuit. No other government entity has sustained allegations by Dixon, who says each setback reaffirms his belief that Arizona's justice system is corrupt.

The chain of events

Documents in the Pinal County Recorder's Office show the chain of events: In August 2006, Sarah Holmes, O'Neil's mother-in-law, secured a $204,000 loan on her house. Within months, Holmes borrowed an additional $203,950 using her home as collateral.

Three years elapsed. In January 2010, records show, Holmes executed a short sale of her property for $72,000 cash to a man named BrienBrenfleck. O'Neil confirmed that Brenfleck is a longtime family friend who once lived at O'Neil's residence.

Short sales usually occur when a property's mortgage debt exceeds its market value. In order to avoid foreclosure, lenders in some cases allow a homeowner to sell the residence and eliminate debt in excess of the proceeds.

Such transactions typically must be approved by mortgage holders, and the indebted seller generally cannot have close ties with the buyer.

Within days of the short sale, according to records on file with the Arizona Secretary of State's Office, Brenfleck and "Bill O'Neal" (sic) were registered as owners of a new Arizona trade name, BOBB Investments, initials from the principles' names.

Ten months later, Brenfleck transferred half-ownership of the Holmes property to Judge O'Neil and his wife, Tammy. O'Neil signed an affidavit listing his purchase price at $25,000.

O'Neil told The Republic he had "nothing to do with the refinancing" of his mother-in-law's home or her decision to do a short sale. O'Neil said it was sheer coincidence that Brenfleck was looking to invest in a house and happened to see a real-estate ad about the short sale.

"We did not give him a check (to purchase the residence as a straw buyer)," O'Neil said. "We did not set a bag of money on the doorstep. We were not involved."

About the same time as the home was advertised, O'Neil said, he and Brenfleck contemplated a business buying depressed real estate and reselling it. He said that BOBB Investments was created for that purpose but that they were unable to borrow funds to get the enterprise started.

O'Neil said Brenfleck called him months later saying that he had lost his job and that the house he had purchased from Holmes needed major repairs. Brenfleck asked if the judge would acquire a half-interest in the residence, then share refurbishment costs. O'Neil said he agreed to do so.

Brenfleck could not be reached for comment.

Short sale detailed

Ross' recent motion to remove O'Neil describes the short sale and alleges that evidence implicates Arizona's presiding disciplinary judge in "illegal conduct."

The motion says an attorney who played a key role as trustee in the transactions, Christopher Perry, later was convicted of negligent homicide and fleeing the scene of a 2011 drunken-driving accident.

Records show that Perry was sentenced to 18 months of incarceration but that he did not get disbarred until March 2013, a month before his release, although the disbarment was retroactive. Ross' motion alleges Perry received favorable treatment from O'Neil in disciplinary proceedings because the suspension of his license was stayed. She alleges that the entire matter creates a "shocking appearance of impropriety."

Records show that Perry litigated a number of cases before O'Neil when the judge worked in Pinal County Superior Court. Most were perfunctory evictions where the Phoenix attorney appeared by telephone.

O'Neil told The Republic he has no acquaintanceship with Perry: "Never talked to him. Maybe he was in my court at some time. ... But I don't know Christopher Perry."

Perry could not be reached to discuss the matter.

Ross is a prominent attorney in Arizona's gay and lesbian community. Her law license was suspended in March 2013 for four years after a hearing before O'Neil. In that case, she was accused of pressuring a client to pay an additional $10,500 shortly before trial, then withdrawing as counsel when the client refused. She also was charged with signing a false document, making misleading statements and publicly accusing a judge of prejudice because he "just doesn't like lesbians."

The current case against Ross is based on Bar allegations that, while her license was inactive, she continued to practice law and failed to notify a client of her suspension.

In a court filing, Ross answered that she had not acted as a lawyer, but utilized a power of attorney available to anyone. She asserted she was unable to locate her client to advise him that she'd been suspended.

In seeking O'Neil's removal, Ross also alleges that the late Robert Gallo of Casa Grande repeatedly served as an independent "public" member on attorney-discipline panels with O'Neil. Ross contends the judge unethically failed to notify defendants that Gallo was his close friend, neighbor and business associate.

O'Neil previously confirmed to The Republic that he and Gallo were friends. He said that he does not believe the friendship constituted a conflict, but understands that others might disagree.

Ross' motion also says O'Neil repeatedly violated her legal rights in disciplinary proceedings and discriminated against her based on his religious beliefs regarding homosexuality.

Ross concluded that O'Neil should not merely be disqualified from her case, but should no longer serve as Arizona's presiding disciplinary judge.

Code requirements

The Arizona Code of Judicial Conduct requires jurists to "avoid both impropriety and the appearance of impropriety" that occurs when a reasonable person believes a judge's conduct is unethical.

O'Neil obtained half-ownership of a house for $25,000. The judge conceded that the residence was purchased from his mother-in-law by a family friend. The mother-in-law remained in the home. The friend and the judge contemplated becoming partners in real-estate ventures.

Asked if that scenario was inappropriate, O'Neil responded, "I don't believe so, no. I ran it by an attorney during the commission (inquiry) ... and he said there was no fraud."

What about the appearance of impropriety? "In hindsight, would I have done this?" O'Neil said. "The answer is 'No.' "

Upon learning of O'Neil's remark, former Justice Feldman said, "I hate to contradict the good judge, but ... there isn't any appearance of impropriety."

Brenfleck and Holmes, who declined to be interviewed, wrote letters to Feldman declaringthat the transactions were proper. An affidavit of "arm's length transaction," signed by Brenfleck, says that no family member or business associate participated in the short sale and that there were "no hidden terms or special understandings."

Arizona judicial canons say a jurist must conduct private affairs "so as to minimize the risk of conflict. ... A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others. ... Public confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety."

Dixon provided The Republic a copy of his judicial-conduct complaint against O'Neil. It alleged that the judge "did in fact commit mortgage fraud in using Brien Brenfleck as a straw buyer."

George Riemer, executive director of the Commission on Judicial Conduct, recused himself from the case because he serves on lawyer-discipline panels with O'Neil.

The Dixon complaint was referred for screening to Michael O. Miller, a commission member and then-Pima County Superior Court judge.

Miller recommended dismissal of the complaint. On Nov. 12, 2012, the full commission ruled there was "no evidence of ethical misconduct."

Complaints surface

Dixon's complaints against O'Neil surfaced in the disbarment proceedings against County Attorney Andrew Thomas and his deputy, Lisa Aubuchon, accused of unethically filing criminal charges against political foes.

Before he became presiding disciplinary judge, O'Neil had been assigned briefly to a key case in the scandal, in which he ruled against the prosecutors. When Bar complaints were lodged against Thomas and Aubuchon, O'Neil was placed in charge of the disciplinary hearings. Aubuchon asked that he withdraw due to a conflict of interest. O'Neil declined.

Thomas and Aubuchon were stripped of their law licenses in April 2012, and O'Neil authored the 232-page decision.

Two weeks later, Mark Dixon signed an affidavit alleging that O'Neil had privately discussed the Maricopa County attorney controversy with him in spring 2009 and had expressed bias against Thomas and Aubuchon. Aubuchon included his statement in an appeal of her disbarment to the Arizona Supreme Court.

O'Neil denied such a conversation occurred and said he had no conflict in overseeing the disbarment case.

The Supreme Court rejected all of Aubuchon's appellate arguments, including claims of bias by O'Neil, which the court said "lacked merit." In its September decision, justices saidshe failed to "prove bias or prejudice by a preponderance of the evidence" and "did not demonstrate that Judge O'Neil's impartiality might reasonably be questioned or that he was biased or prejudiced as a result of his limited roles in the related criminal matters."

Even if Dixon's allegations were true, the court said, his affidavit "does not overcome the presumption that Judge O'Neil acted without bias or prejudice."

O'Neil said Dixon's unceasing accusations had created safety concerns. He noted that Dixon's judicial complaint described an incident in which a horse at the judge's stable was euthanized with a gun while the O'Neils were at church. O'Neil said he had not even been aware that a horse was shot on his property until he read Dixon's account.

"It terrified us, absolutely terrified us," he said. "I'm horribly concerned. I lock my doors at night. ... We keep our dogs in the house."

Dixon said the suffering animal was put down by an off-duty police officer, who corroborated that account to The Republic. Dixon said he mentioned the incident in his complaint because he was told of an alleged plan to discredit him by charging him with a weapons violation as a result of the mercy killing.

Dixon, meanwhile, says he is in hiding outside Arizona, fearful of being framed by officials in the justice system as he continues to investigate.

"I just want this (expletive) straightened out," he said. "I mean, this is so far beyond a man and his dog that it's not even funny."

Reach the reporter at dennis.wagner@arizonarepublic.com.