BREAKING: Kari Lake's Lawsuit To Get Ballot Envelopes Fails; "Her Goose Failed To Lay The (Golden) Egg She Expected" (READ Minute Entry)

Kari Lake does not have the right to get Maricopa County early voters' ballot affidavit envelopes with their signatures, a judge ruled today.

After an unusual two day public records request trial in September, Superior Court Judge John Hannah waited until the end of his 60 days to issue his opinion. The 12-page Minute Entry (below) explains why he concluded that Maricopa County Recorder Stephen Richer was correct in denying Lake's PRR for the envelopes.

Hannah indicated that he had earlier denied the County's Motion to Dismiss the Special Action lawsuit because the parties had not clearly defined whether the envelopes that voters sign to indicate that they had legally voted the ballot inside were part of the "voter registration record".

Having now considered the matter further, the Court concludes that the Recorder correctly relied on section 16-168(F) as a basis for refusing to disclose the ballot affidavit envelopes. As a matter of law, section 16-168(F) presumptively forecloses wholesale disclosure of the ballot affidavit envelopes to Ms. Lake because they are “records containing a voter’s signature,” and because the Recorder in fact makes them part of the “voter registration record” and uses them for signature verification in subsequent elections.

Hannah also curtly disposed of Lake's attorneys' (Bryan Blehm and Kurt Olsen) argument that they needed the envelopes as part of their ongoing legal challenge to the results of the 2022 gubernatorial election. The Minute Entry notes that that case is well beyond the trial and evidence-gathering phases - it is on appeal - and, importantly, that they had not even argued that Maricopa County had erroneously verified an early ballot through a bad signature match. Instead, Lake had claimed the County did not do any signature matching. "That argument failed. She does not get to start over with a different argument now."

In a memorable conclusion to the Minute Entry, Judge Hannah went back to Aesop's Fables for an analogy.

 

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

BREAKING: Indictments Returned Against Cochise County Supervisors For Election Interference

 (This is a breaking story. Please check back for further info.)

UPDATE: The indictment has now been set in Maricopa County (CR2023-008495).

WORTH NOTING: The activity allowing it to proceed in Maricopa - rather than Cochise - County is that their actions "affected the Secretary of State’s ability to complete the canvass/certification."

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

BREAKING: "No Thanks"; AZ Supreme Court Giving Kari Lake The Boot In Latest Effort To Remove Her 2022 Election Contest Appeal From Southern Arizona Appeals Court

The Arizona Supreme Court unanimously refused Kari Lake's latest effort to leapfrog the intermediate Court of Appeals, and have the Justices instead decide her 2022 Election Contest appeal.

Justice Bill Montgomery drew the short straw to write up the Order (below) before the Thanksgiving holiday. (Lake had filed the Motion last week to transfer the case.)

"Appellant Lake does not show good cause for transferring the appeal from the court of appeals, where the matter has been fully briefed."

On Monday, Lake asked the Justices to sanction Maricopa County for their Response, alleging "repeated and deliberate mischaracterizations of the record and Arizona law". (Motion and proposed Reply below.) Montgomery was not impressed with that, either; he denied the request to file a Reply and declared that the sanctions issue was, thus, moot. (Lake has been sanctioned in the past by the court for such misconduct.)

The appeal remains with Division 2 of the intermediate Court of Appeals, where briefing was completed last week.

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

BREAKING: 9th Circuit REVERSES, and Rules Arizona Abortion Providers Do Have Standing To Challenge State's Ban On Abortions Due To Genetic Abnormality

A 9th Circuit panel today ruled that Arizona abortion providers do have the necessary standing to ask for an injunction stopping the state's ban on abortions sought solely because of a genetic abnormality in the fetus. The Opinion REVERSES a lower court ruling earlier this year that refused to stop the 2021 law from going into effect after the Dobbs' decision reversed Roe v Wade.

The opinion, written by Judge Ronald Gould - the other two, approving judges were Arizonans Andrew Hurwitz and Roopali Desai - rested partly upon the physicians' assertions that the vagueness in the law have forced them and others to over-comply, inhibiting their practices and decreasing their patients' well-being.

Contrary to the holding of the district court, standing does not also require that the economic injury be sustained while engaging in an activity separately protected by the Constitution, such as First Amendment protected speech.  Rather, our cases make clear that an Article III injury in fact can arise when plaintiffs are simply prevented from conducting normal business activities.

Today's decision sends the issue back to District Court Judge Douglas Rayes, with instructions to re-determine whether the law should be prevented from going into effect. He previously enjoined the other portion of the law, which would have granted a fetus "personhood".

The renewed court battle also comes as many of the same parties (and attorneys) are preparing for oral arguments before the Arizona Supreme Court on December 12, in a case that will determine whether Arizona's Territorial-era complete ban on abortions snapped back into place after the Dobbs' decision. (A determination that it did could render the fight about the genetic abnormalities ban irrelevant.)

Meanwhile, Arizona abortion rights advocates are also attempting to place a constitutional amendment on the 2024 ballot which would protect access to reproductive healthcare.

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

BREAKING, SANCTIONS SCOREBOARD UPDATE: AZ Supreme Court SANCTIONS Hamadeh $55,000 For Improper Special Action Petition (READ Order

The Arizona Supreme Court this afternoon sanctioned unsuccessful Attorney General candidate Abe Hamadeh (R-AZ) more than $55,000 for filing an improper Special Action Petition with the highest court in the state.

The sanctions are designed to cover the attorneys' fees and costs incurred by now-AG Kris Mayes and the Arizona Secretary of State's Office.

Hamadeh had found himself in a strange situation (fully-documented by Arizona's Law) because the trial court judge in his Election Contest long failed to sign an appealable judgment (thus making an appeal premature).

Hamadeh's attorneys asked the Supreme Court to not only order Judge Jantzen to sign a final judgment dismissing the contest, but also to reverse Jantzen's decision not to grant a new trial. This, Chief Justice Robert Brutinel today wrote, unnecessarily expanded the Special Action and prompted Mayes' attorneys to spend much more time (aka fees) on the matter. (For example, Republican lawmakers weighed in and brought up other legal issues.)

Mayes's outside counsel incurred $42,123.15 in fees (and $154.81 in costs).

Hamadeh also argued that the Secretary of State's Office should not be awarded its $12,921.50 in fees because they were a nominal party. However, Chief Justice Brutinel pointed out the parts of Hamadeh's Petition which alleged that the Office "violate(d) the duty of candor to the tribunal and to falsely assert that Petitioners had no evidence...." Thus, the Secretary of State's Office was "more than a 'nominal' defendant who need not be expected to remain silent to refute these allegations." 

Hamadeh does have an appeal of the dismissal of his Election Contest currently pending in the Court of Appeals. (Mayes and the Secretary of State's Office have cross-appealed the denial of sanctions in the trial court.) Briefs from the defendants (also, they are appellees and cross-appellants) are due on November 6.

(This is a developing story. Please check back for updates.)

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

BREAKING: 9th Circuit Re-DISMISSES Kari Lake Hand Count Lawsuit (READ Opinion)

A panel of 9th Circuit judges did not require much time to affirm the dismissal of Kari Lake and Mark Finchem's lawsuit to force all future ballots to be tabulated by hand. 

The unanimous Opinion handed down today agreed that Lake and Finchem had only presented "speculative allegations that voting machines may be hackable", and that they therefore could not establish that they had a right to bring such a suit.

Lake and Finchem had initially attempted to force a handcount in the 2022 elections. That case was dismissed by District Court Judge John Tuchi. Since they both lost in that election, they appealed by arguing that future elections - and they are now both 2024 candidates - should be counted by hand.

Oral argument took place on September 12 in Phoenix. The 9th Circuit panel issued a "per curiam" opinion, in which none of them are listed as the authoring judge. The panel consisted of Judges Andrew Hurwitz, Ronald Gould, and Patrick Bumatay.

The judges found that even if Lake/Finchem had standing, they could not prove that "future injury was either imminent or substantially likely to occur."

Their operative complaint relies on a “long chain of hypothetical contingencies” that have never occurred in Arizona and “must take place for any harm to occur—(1) the specific voting equipment used in Arizona must have ‘security failures’ that allow a malicious actor to manipulate vote totals; (2) such an actor must actually manipulate an election; (3) Arizona’s specific procedural safeguards must fail to detect the manipulation; and (4) the manipulation must change the outcome of the election.” This is the kind of speculation that stretches the concept of imminence “beyond its purpose.”

Separate panels are considering the appeals by Lake's and Finchem's attorneys, contesting the $122,000 in sanctions imposed against them. (There are separate appeals from Alan Dershowitz and the Kurt Olsen/Andrew Parker groups.)

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

BREAKING: U.S. Supreme Court Vacates ANOTHER Arizona Death Sentence; Although This Time, Without Scolding Arizona Supreme Court

The benches for the U.S. Supreme Court Justices are barely warm today as they begin their new term, but they have again taken aim at Arizona, vacating another death sentence and sending the case back to Maricopa County Superior Court.

Without any noted dissents, the Justices summarily vacated the death sentence given to Manuel Ovante for one of his 2008 killings (while he and his friends were looking for meth). He pled to the murders after a judge told him he could be eligible for parole if he was sentenced to life. The sentencing jury was later told that, too, and then decided to impose a death penalty. By law, he would not have been eligible for parole. The Arizona Supreme Court decided that that incorrect information did not make Ovante's guilty plea involuntary.

The U.S. Supreme Court vacated two similar Arizona death penalties earlier this year, including strong rebukes of the Arizona Supreme Court for ignoring its similar instructions in a 2016 opinion. 

For more on the earlier 5-4 Opinion, Cruz, please see our previous article, "U.S. Supreme Court OVERTURNS Arizona Death Sentence For a Tucson Cop Killer, Again Criticizes Arizona Supreme Court". For that article, former Acting U.S. Solicitor General Neal Katyal told Arizona's Law that we "believe Arizona must be far more careful in how the death penalty is administered." (Katyal represented the Petitioner pro bono.)

Today's decision undoes Ovante's death sentence, and refers back to the February Cruz case.

The Justices could have proceeded with the case to again rebuke Arizona courts. However, the Arizona Supreme Court's decision not to consider Ovante's appeal was in November 2022, so the U.S. Supreme Court obviously did not want to gratuitously issue another scolding 

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

BREAKING, IT'S FINAL: Arizona Must Cover Employees' Gender Reassignment Surgeries; ALSO: Judge Rejects Petersen/Toma While Reducing AZ's Payment To ACLU

After years of litigation and months of both settlement efforts and disputes about the settlement, a judge today approved a Consent Decree between Arizona and the ACLU. The Decree finds that Arizona's 2017 decision that it would not permit health insurance companies to cover state employees' gender reassignment surgeries is unconstitutional.

U.S. District Court Judge Rosemary Marquez also had to resolve several issues that arose out of efforts to resolve the legal challenge brought by the American Civil Liberties Union. For example, she decided to reject Arizona House Speaker Ben Toma and Senate President Warren Petersen's effort to file an amicus brief in the case.

However, Toma and Petersen raised a couple of issues which did impact the rest of Marquez's decision. They argued that an Executive Order from Governor Katie Hobbs earlier this year (that erased Doug Ducey's mandated exclusion) had mooted the later-filed Consent Decree, and that the state should not be responsible for $500,000 of the ACLU's legal fees in bringing the successful challenge.

Judge Marquez decided that Hobbs' Executive Order did NOT moot the Consent Decree, but that it DID lessen the impact of the Consent Decree to binding the state in the future. On that basis, Marquez reduced the $500,000 bill to only $375,000. (She found that the $6.6M in fees incurred by the ACLU's counsel was too high, especially the out-of-state co-counsel's hourly rates. But, that that did not impact her decision to reduce the lower, negotiated amount.)

Arizona's Law published the Consent Decree here. With its approval today, the case is now closed. (Petersen and Toma are not in a good position to appeal.)

***

Later reaction: 

In response to this article, the Arizona ACLU sent us these reactions from the Plaintiff/state employee Russell Toomey and their senior staff attorney: "The relief from Gov. Hobbs' Executive Order in June of this year was immeasurable. Finding out today that the Federal Judge in my case, the Honorable Márquez, ordered that the removal of the exclusion of gender affirming surgical care from our state employee health insurance is permanent, provides even greater relief,” said Dr. Russell Toomey, the lead plaintiff in the case. “Today, my soul is full of joy knowing that I and other current and future Arizonans will be able receive the medical care coverage necessary to live our lives fully and authentically."

“After nearly five years of litigation, we have finally achieved equal access to healthcare coverage for trans state employees,” said Christine Wee, ACLU of Arizona senior staff attorney. “This is a victory for all state employees defeating this clear violation of federal civil rights law once and for all.”

Also in response to this article, Kari Lake's campaign X-Twitter account responded: "A judge just ruled that our taxpayer money will be used to fund sex changes for state employees. Arizonans are struggling thanks to Biden’s economy. Now we are forced to foot the bill for radical sexual reassignment. We didn’t vote for this. Activists made the decision for us."

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

UPDATE: Judge Holds Phoenix Responsible For $220,000 In Attorneys' Fees In Homeless "Zone" Lawsuit (READ Order)

11/20, 1pm: Judge Scott Blaney today ordered Phoenix taxpayers to reimburse local businesses for the $220,000 in attorneys' fees and costs they incurred in forcing the City to clear out the homeless "Zone" in central Phoenix.

*****

Original article, 9/20: "BREAKING: Businesses in Phoenix's Homeless "Zone" Granted Permanent Injunction; Phoenix Has Until Nov. 4 To Remove Tents, Etc."

In a 27-page Order, Maricopa County Superior Judge Scott Blaney gave Phoenix until November 4 to clear out the homeless "Zone" in central Phoenix, granting local businesses the permanent injunction they sought to deal with the public nuisance.

Blaney had issued a temporary injunction iu March, and noted that the city has had "nearly two years" since the plaintiffs had first sought help from the City Council. The tents and makeshift structures must be gone and the city is to keep the public property free of "biohazardous materials including human feces and urine, drug paraphernalia and other trash".

Blaney notes that the City has begun moving forward on a "structured campground" separate from the Zone.

Beyond the public policy embodied in the statutes above, the public interest counsels that the City take immediate action to protect the homeless individuals residing in squalor in the Zone from the many risks and dangers identified throughout this Ruling. “Immediate action” means abating the public nuisance in which they reside and developing temporary shelter space for those that truly need it. It does not mean leaving the public nuisance in place and allowing it to fester while the City pursues development of long-term plans of permanent supportive housing.

The Court will conduct a follow-up hearing on November 30, but plans to award attorneys' fees and issue a judgment in October.

Phoenix's homeless Zone received local attention, and national attention from media such as the New York Times.

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

WHERE ARE THEY NOW? Updates on Arizona's 3 Ongoing 2022 Election Contest Cases!

 SHORT ANSWERS:

1) Kari Lake's Election Contest (Governor race) is in the intermediate Court of Appeals (Division 2). She just filed her Opening Brief.

2) Abe Hamadeh's Election Contest in the ultra-close (280) Attorney General race is in the strange purgatory time period between filing the Notice of Appeal in the trial court and the Court of Appeals docketing it.

3) Mark Finchem's Election Contest in the ultra-not-close Secretary of State race is in the Court of Appeals. He has dropped his substantive appeal of the dismissal and is only contesting the $48,000 in sanctions assessed by the trial court after dismissing the case. (Although he did pay the sanctions.)

TO THE MOUNTAINTOP... WHERE THEY'VE BEEN:

All three contests have already made visits or neo-visits to the Arizona Supreme Court. The Justices affirmed the dismissal of all but one of Lake's counts, and sent that last one back for a trial (held in May). The Justices also recently rebuffed Lake's efforts to bring her first appeal straight to the highest court, and her attempt to block the (random) transfer of the second appeal to Division 2.

Happier times (photo by Gage Skidmore)

Hamadeh's attorneys filed a Special Action Petition directly with the Justices, because his trial judge was not signing a final, appealable judgment. That Petition was quickly dismissed, and sanctions were ordered. Hamadeh just filed an objection to the amount of fees being sought by Kris Mayes' attorneys. 

And Finchem had initially floated the idea that he might take his appeal directly to the Supreme Court (as is permitted under the Rules in some instances). He never did, but the Supreme Court caused some confusion by opening up a docket "in anticipation". They caused some (continuing) confusion on December 28 when they issued an Order closing that docket.

WHAT'S NEXT: 

1) Lake: The defendants'/appellees' Answering Briefs are due by October 26 - although they can file them sooner. A Reply Brief is then due by 20 days. No effort to expedite the briefing schedule was made, and Lake waited nearly two months after the appeal was transferred to Division 2 before filing her Brief at the deadline.

2) Hamadeh: The Court of Appeals will soon docket both Hamadeh's most recent appeal (the first one was dismissed as premature) and the defendants' Cross-Appeals (on the denial of sanctions). Hamadeh's attorneys have indicated that they will try to expedite the briefing schedule.

3) Finchem: Answering Briefs are due by October 10. No expediting efforts made.

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.