Mayor Found Guilty Of Disorderly Conduct

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After two days of testimony, it took Judge Pro Tem John Perlman just a few minutes to pronounce Payson Mayor Ken Murphy guilty of disorderly conduct-fighting, a class one misdemeanor.

Perlman fined Murphy $500 and assessed court costs of another $500. The maximum sentence is a $2,500 fine and six months in jail.

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Payson Mayor Ken Murphy and his attorney, Harlan Green, return to the defense table moments after Murphy was sentenced by Judge Pro Tem John Perlman. Murphy was fined $500 for disorderly conduct - fighting.

The verdict came at 6:20 p.m. Friday, immediately following closing arguments.

The charge stemmed from a confrontation Aug. 16, 2002 between the mayor and then-Fire Marshal Jack Babb over Babb's decision to enforce capacity restrictions at the Ox Bow Saloon during August Doin's.

According to the testimony of several witnesses, Murphy approached Babb on the steps outside the Ox Bow in an agitated manner and yelled at the fire marshal to come inside and show him "what's the problem." The particular disorderly conduct statute invoked requires "seriously disruptive behavior."

In finding Murphy guilty, Perlman said that the state had proved that charge beyond a reasonable doubt.

"We attempt to live in a civilized society," Perlman said. "In a civilized society, we should be able to disagree on substantial issues and not have to resort to behavior that goes against public order."

But Perlman, who also is a practicing attorney in Globe, told the court he has mixed feelings about the statute.

"As a defense attorney, I'm not terribly fond of that statute," he said. "However, as a judge, I've been sworn to uphold the law."

Perlman also expounded on civil disobedience.

"The first rule of civil disobedience is you may have to break the law to make your beliefs known," he told the mayor. "The second rule of civil disobedience, however, is that you may have to pay a price for breaking the law."

Both Babb and the Gila County attorneys who prosecuted the case -- Bryan Chambers and Robert Standage -- were subdued after the verdict.

"There's nothing to celebrate," Babb said.

Chambers was almost as brief. "I think the only thing we have to say is that we're satisfied with the judge's verdict," he said. "The verdict speaks for itself."

Green said the defense will consider appealing the verdict.

"We're talking about that now," he said in the parking lot after the trial. "The sentence was unlawful, because you can't sentence to prosecution costs. The difficulty in Gila County is that the appellate process goes to Superior Court and they read the transcript, and if there's any reasonable way of upholding the judge, they'll do that. Ultimately for $500, I don't know if I'd tell any client that's the best spent money."

On the stand

The second day of the trial began with Babb on the stand. The fire marshal told the court that the entire confrontation with Murphy lasted less than five minutes, that he definitely felt threatened, and that he was prepared to defend himself with his flashlight if the mayor took a step forward.

During his cross examination, Green had Babb write out the entire conversation with Murphy, including several profanities, on a white board with a dry erase marker. The board stayed in clear view of the entire courtroom the remainder of the day, and Chambers reread the conversation several times in its entirety during his closing argument.

When Green asked Babb why he didn't go into the Ox Bow to show the mayor the problem as requested, he replied, "I don't bow to the demands of people who are intoxicated."

Following Babb's testimony, the state rested.

Green immediately called for a directed verdict. "The mayor is not somebody who wears a hat that says ‘Mayor' that he takes off when he goes out in public," Green said. "You have to show that the mayor was disturbing the peace of Mr. Babb. It is rather clear that this is no different from any other employee-employer relationship -- an employer is asking someone to explain his conduct."

Chambers countered that the disorderly conduct statute does not exempt mayors, and that Murphy's actions were not justified.

"Saying ‘F-You' in and of itself is probably not seriously disruptive behavior, but adding to that the agitation, the pointing, the yelling, that makes it seriously disruptive behavior," he said.

When the judge denied Green's motion for a directed verdict, the defense proceeded to call a series of witnesses, including the owners of the Ox Bow Saloon, Roy and Beverly Nethken, and several of Murphy's friends who were with him the evening in question.

Finally, he put Murphy on the stand. The mayor said he was talking loud so he could be heard over the band, and that Babb was non-responsive to his request to show him the problem.

He also talked of an unusually heavy police presence at the Ox Bow that night, suggesting a "vendetta" against alcohol consumption on the part of the police and fire departments.

"This was a planned harassment of this business that a lot of people didn't want reopened," Murphy testified.

Before the mayor stepped down, Perlman asked him to explain his comment.

"Why would Mr. Babb have an agenda -- a vendetta?" the judge asked. "Why would anybody want to shut down the Ox Bow?"

"Religious beliefs," Murphy answered.

Following the trial, the mayor was unrepentant.

"All I can say is, I did what I did, and I believe I was right and I stand by that and I'd do it again tomorrow," he said.

Murphy, who promised to resign if he did anything to embarrass the town, said he has no intention of stepping down at this point.

"I did what I believed was right at the time," he said. "I think the fire marshal, to this day, was wrong, and I have no apology."

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