Friday, October 22, 2021

BREAKING: USDOJ and AZAG Spar On Vaccine "Mandate" Impacts On "John Doe" (READ Filings)

LATE UPDATE, 6pm: Judge Mike Liburdi has set a status conference for this coming Tuesday morning. (10/26 at 10:00am)

UPDATE, 3:45pmBREAKING: USDOJ and AZAG Spar On Vaccine "Mandate" Impacts On "John Doe"

The legal filings are flying fast and furious in Arizona's case against the federal government's COVID vaccine "mandates", and John Doe is caught in the middle. His employer is either the U.S. government directly or a government contractor, and he claims a "medical exemption" from getting vaccinated.

The USDOJ pointed out that his concern about possibly getting fired is not sufficient to cause an emergency briefing and hearing on a preliminary injunction request filed this morning. Arizona replied and focused on the alleged potential harm to Arizona's economy and universities if the mandate goes into effect.

Local U.S. District Court Judge Mike Liburdi - who served as Governor Doug Ducey's general counsel before being nominated by then-President Donald Trump to the bench - earlier declined to expedite the schedule until knowing that all parties had been served. Now that the DOJ has filed, Liburdi is expected to make a decision (on expediting) shortly.

Original Article, 10/22, 7:45amBREAKING: AZ AG Shifts Gears In Vaccination Mandate Suit Vs. US - Brings In "John Doe" Federal Employee (READ Filings)

Arizona Attorney General Mark Brnovich today morphs his anti-vaccine mandate case against the U.S. and is working with outside counsel and an anonymous federal employee. Brnovich is asking for an expedited hearing because the vaccination deadline for employees and contractors is coming up "within the next several days."

You will recall that Arizona rushed to be the first in the country to file suit after President Joe Biden announced coming requirements to have workers at private companies vaccinated against COVID. Although he had not taken action on that suit in the past five weeks, today's filings required an amended complaint, a motion for a preliminary injunction and a motion to hurry up.

The "John Doe" is a federal employee working in Arizona, and is being represented by outside counsel Jack Wilenchik. (Wilenchik and the AG's Office are co-filing today's pleadings.) John Doe has a medical exemption from being vaccinated, but he believes that the government will not honor it and his job is at stake.

The suit is in federal court, in front of U.S. District Court Judge Michael Liburdi.

"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.


Tuesday, October 12, 2021

A BIT OF PERSONAL NEWS: Arizona's Law Founder Announces Run For State Legislature

The mainstays of both Arizona's Law and Arizona's Politics for the past 11 months have been legal wrangling about the 2020 election, the State Senate's subsequent subpoenas and "audit", and the Legislature's new laws limiting voting options (without balancing increases in election accuracy). Those are also among the key reasons why I am announcing my candidacy for the State House of Representatives*.

As readers of these two news blogs know, I have been dedicated to reporting news as objectively as possible. This reflects my previous life as a news reporter (primarily in Tucson) and my ethos to add some straightforward coverage to issues I believe to be important. 

I moved from journalist to being an honest advocate for my clients, and in recent years have spent time pursuing both of these passions. Since 2010, I have worked to deliver reporting that people would view as credible no matter where on the ideological spectrum they may currently rest; my conversations with R's, D's and everyone in between leads me to believe I was close to that mark. 

Today's announcement will not make it more difficult for me to write non-partisan articles on these news blogs, but it will make it more difficult for some readers to view them as factual, honest articles. 

I will continue to report on legal and political news as time permits, and will fully disclose my candidate status as warranted. I will also be looking to others to assist with coverage of Arizona legal news - and will continue to label items as "news analysis" or "commentary" where appropriate. (Let me know if you are interested.)

Thanks to everyone who has read and/or shared our articles to date, and I hope you will continue to find them worthwhile. (And, a special thanks to those who have provided feedback - positive *or* negative.)

Although my campaign website (and, Twitter account) will be up and running within the week, if you are interested in receiving updates, you could contact me here, or you could email me at "Paul Weich 4 AZ @gmail.com" (no spaces)

--Paul Weich

P.S. h/t to the sharp-eyed @KC_Haas at Yellow Sheet Report for "breaking" this story yesterday!


* I reside in the Ahwatukee portion of the current Legislative District 18. The boundaries of the new legislative district are not yet known, but I will be running in whichever district encompasses my address.

UPDATE: Senate Turns Over Disputed "Audit" Records To Judge, Asks Him To Let Them Appeal (Again) Before Releasing Them (READ Request)

UPDATE, 10/14, 11am: Senate Turns Over Disputed "Audit" Records To Judge, Asks Him To Let Them Appeal (Again) Before Releasing Them (READ Request)

The Arizona Senate has presented disputed communications related to its "audit" of the 2020 Presidential election to Superior Court Judge John Hannah on Tuesday, while asking him to defer any public release so that they can (again) appeal to keep them under wraps.

"The Senate believes that rushed, piecemeal, and potentially redundant appellate review ill-serves the imperatives of careful deliberation and judicial economy," attorneys Kory Langhofer and Tom Basile write. They specifically mention appealing the "legislative privilege" issue, which Superior Court Judge John Hannah firmly rejected in his earlier ruling (in original article).

Hannah had given the Senate until the end of the day Tuesday to turn over six sets of records related to the election "audit". This is in the public records lawsuit brought by the Arizona Republic. There is a similar case brought by American Oversight.

Other articles you might be interested in

*** A BIT OF PERSONAL NEWS: @ArizonasLaw Founder Announces Run For State Legislature 

***STILL ON HOLD: AZ Supreme Court Refuses To Let Ban of Face Mask Requirements Go Into Effect, As State Appeals Monday Decision (READ Motions, Orders)


Original article, 10/12: BREAKING - Judge To Senate Pres. Fann: Give Me Missing "Audit" Records TODAY For In Chambers Review! (READ Ruling)

The Arizona Senate must turn over disputed records relating to its "audit" TODAY, decided Superior Court Judge John Hannah. He will inspect the string of text messages between Senate President Karen Fann and Phil Waldron, communications between Cyber Ninjas' President Doug Logan and Senate liaison Randy Pullen, and four other sets of documents; the judge will then decide whether they should be turned over to the Arizona Republic and be made public.

Hannah decided that Arizona Senate President Karen Fann and her attorneys have not overcome "the legal presumption favoring disclosure."

In addition to the communications above, the Senate must turn over:

-- draft contracts between the Senate and Cyber Ninjas, including the mark-ups by Shiva Ayyudurai;

-- "inter-chamber communications" between Fann, House members Leo Biasucci, Mark Finchem and Sen. Sonny Borrelli, at various stages of the "audit".

The Senate has already appealed the two public records lawsuits up to the Arizona Supreme Court, which turned the process for turning over the records back to Judge Hannah. The second lawsuit was filed by American Oversight, and Judge Michael Kemp yesterday turned down a reiteration of the Senate's motion to consolidate the two lawsuits.

"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.

Wednesday, September 29, 2021

STILL ON HOLD: AZ Supreme Court Refuses To Let Ban of Face Mask Requirements Go Into Effect, As State Appeals Monday Decision (READ Motions, Orders)

The Arizona Supreme Court denied the State's last minute effort to allow its ban on schools requiring face masks to go into effect today. The law is on hold after Monday's Superior Court decision saying that the law (and other portions of the budget reconciliation bills) are unconstitutional.

The Justices will consider whether or not to accept the state's direct appeal (bypassing the Court of Appeals), and the victorious plaintiffs have until tomorrow to oppose the State's request. Duty Justice Ann Timmer then gave the State one more day to reply, thus confirming that this will be handled on an expedited basis.

The State, represented by both the Attorney General's Office and private outside counsel (Fennemore Craig), argued that the state will suffer "irreparable harm" if the four budget reconciliation bills are not permitted to go into effect today, and that Superior Court Judge Katherine Cooper's Order was incorrect and "alters the delicate balance between the elected branches of government and the courts."

Meanwhile, the State also filed an Emergency Motion in the Court of Appeals to get the process started even while the Supreme Court considers whether to skip the intermediate court. The Court of Appeals set an October 13 deadline for the Plaintiffs to respond.

"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.

Tuesday, September 28, 2021

UPDATE: Brnovich Appeals, Asks District Court and 9th Circuit To Allow Arizona Ban On Abortions Due To Genetic Abnormalities To Go Into Effect (READ Filings)

UPDATE, 1018, 6pm: Judge Refuses Request To Allow Arizona  Anti-Abortion Law To Go Into Effect Pending Appeal; Brnovich "Misconstruing" Court's Decision

As expected, federal Judge Douglas Rayes tonight DENIED a request by Arizona Attorney General Mark Brnovich to allow Arizona's new anti-abortion law to go into effect while an appeal is pending.

The state's "abstract injury is outweighed by the real-world harms a stay would visit upon the provider Plaintiffs and their patients," Judge Rayes bluntly stated in denying the stay. The portion of the law would prohibit abortions sought solely because of a genetic abnormality in the fetus.

UPDATE, 10/6, 3:45pm: Brnovich Appeals, Asks District Court and 9th Circuit To Allow Arizona Ban On Abortions Due To Genetic Abnormalities To Go Into Effect (READ Filings)

As expected, the state of Arizona is appealing an injunction against a new law that would prohibit abortions sought solely because of a genetic abnormality. Attorney General Mark Brnovich is also asking the District Court judge to allow the law to go into effect while the case is before the 9th Circuit as an "emergency".

U.S. District Court Judge Douglas Rayes is unlikely to agree to stay his injunction pending appeal, and today gave the Plaintiffs until October 13 to respond to the motion.

Brnovich argues that the Legislature intended “'to send an unambiguous message that children with genetic abnormalities, whether born or unborn, are equal in dignity and value to their peers without genetic abnormalities, born or unborn.' While the law is enjoined, doctors can continue performing abortions knowing that the abortion is sought solely because of a genetic abnormality. This certainly constitutes irreparable harm."

The Plaintiffs have not filed their own appeal of Rayes' decision to not block the "personhood" provision in the new law, and based on comments from Plaintiffs' attorney Emily Nestler, they will probably decide to continue fighting that at the trial court level (rather than appealing the denial of an injunction against it).

Original article, 9/28: BREAKING: Judge Refuses To Block Arizona Anti-Abortion "Personhood" Provision From Going Into Effect Tomorrow; DOES BLOCK Prohibition On Abortion Due To Genetic Abnormality (READ Order)

In an Order that will further enrage - and, make happy - both sides in a fierce abortion debate, a federal judge this afternoon allowed a key part of a new Arizona anti-abortion law to go into effect tomorrow, while preventing a prohibition on abortions sought because of a "genetic abnormality" from taking effect.

Tuesday, September 14, 2021

How AZ AG Brnovich Got To File "1st Lawsuit In the Nation" Against Biden's Yet-To-Be-Detailed Vaccine/Testing Mandate; The Double-Flip With A Twist (READ Lawsuit)

Arizona Attorney General Mark Brnovich boasted today about his "first lawsuit in the nation" status against the Biden Administration's yet-to-be-detailed vaccine/testing mandate. The broad outline was announced by the President last week, so how is it that noone beat Arizona to the courthouse?

The answer lies in the creative legal argument presented today by the Attorney General's Office.  Brnovich's fellow Republican AGs and Governors were likely drafting their Complaints to be ready when OSHA finally files the proposed emergency rule requiring companies with more than 99 employees to either mandate vaccinations or testing of all employees.

Since the Arizona AG team already has honed its arguments against the Biden Administration's policies regarding illegal immigrants and the southern border, some gymnastic moves were in the repertoire.

Brnovich is attempting to land a double-flip with a twist. He notes that there is no vaccine requirement for "unauthorized aliens", so to (kind of) impose such a requirement on U.S. citizens is a sort of reverse discrimination and violates the 14th Amendment's Equal Protection Clause. (And, therefore, the action is subject to "strict scrutiny".

To stick the landing and file the case today, Brnovich notes that his colleagues with the traditional arguments must wait. "Courts will have an opportunity to review and invalidate those forthcoming mandates as to private employers, federal contractors, federal employees, and health care workers. But this particular component—i.e., the unconstitutional discrimination against U.S. citizens, lawful permanent residents, and aliens lawfully residing and working in the U.S.—is ripe for judicial review and invalidation now.

Much of the lawsuit is a strongly-worded press release. Literally, the first six pages are an "Introduction", and much of it is repeated in the subsequent facts section. "The same Administration that would not dream of infringing upon the right of unauthorized aliens to choose whether to be vaccinated (or not), has no equivalent regard for the rights of United States citizens."

And, it includes a shout-out and reference to Fox News, for noting that Biden Chief of Staff Ron Klain had retweeted a commentator's opinion that the yet-to-be-delivered vaccine/testing requirement is a "workaround". (Brnovich has already announced his first national interview on a conservative show to promote today's lawsuit.)

The entire legal allegations could have been published in a very brief Twitter thread. Here it is in its entirety:


The case has been assigned to Michael Liburdi, former General Counsel for Governor Doug Ducey.

"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.

"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: AZ Supreme Court DENIES Cyber Ninjas & Sen. President Fann's Appeals Of Public Records Lawsuits; Stay Is Dissolved

The Arizona Supreme Court today DENIED separate appeals by both State Senate President Karen Fann and the Cyber Ninjas. 

The first appeal was brought by the Ninjas in the Arizona Republic case for public records. It focused on whether the Supreme Court could remove parties' right to demand a change of judge just because of the pandemic. That was an interesting tack that resulted from Cyber Ninjas' effort to have Superior Court Judge John Hannah removed from the case because he had sanctioned the Republican party in a post-election challenge.

Fann's appeal was directly on the point of whether the Senate was required to gather and turn over records that were in the control of the Cyber Ninja contractor (and their subvendors). The Supreme Court put a temporary stay (or, hold) on the August 31 turnover deadline. This removes that stay.

The newest Justice on the court, Kathryn King, did vote to accept both appeals, and Justice Bolick would have accepted the Ninjas' case in order to determine whether the peremptory right to a change of judge was substantive.


"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.

Wednesday, September 8, 2021

UPDATE: Maricopa County Board Schedule Possible Monday Action On State Senate Election Audit/Recount Subpoenas

Update, 9/17,  2:15pm: The Supervisors have scheduled another Special meeting for this coming Monday afternoon. But, this one is more enticing than most: they have listed an *Open* session to possibly take action "regarding the election and compliance with the Senate subpoena and litigation."

This will be the 22nd Special (and/or Emergency) Executive Session of 2021 for the Board, which is overwhelmingly Republican.

As noted below, both the Board's Notice of Claim and the Attorney General's finding are coming up on their calendar towards the end of the month. Given the wording of Monday's 1:00pm agenda, this would more likely deal with the latter.

Original article 9/8/21: Maricopa County Board To Hold Special Meeting To Discuss Election Audit Subpoenas Standoff

The Maricopa County Board of Supervisors will hold a special closed door meeting to discuss their long-running standoff with the Arizona State Senate regarding the 2020 election and the subsequent subpoenas and audit/recount.

The Republican-dominated Board will receive updates from both their "in-house" County Attorney's Office AND their outside (private sector_ counsel. In addition, they will be joined by other county-wide elected officials (Sheriff Paul Penzone, Recorder Stephen Richer and Assessor Eddie Cook), indicating that the Senate's demands for the county's routers are going to be part of the discussion.

This will be the 21st Special and/or Emergency Executive Session held this year by the Board of Supervisors; all or nearly all of them have had to do with the battle with the Senate.

Currently on the clock are (1) the Board's Notice of Claim against the State Senate, seeking reimbursement for the $2.8M which the County is incurring for new voting machines as a result of the "audit"; and (2) the Arizona Attorney General's finding that the County could lose state funds if it does not resolve the outstanding subpoena issues. Both of those are coming to a head at the end of September.

Here is tomorrow's agenda:

 "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 podcast.

Friday, September 3, 2021

BREAKING: Mesa's Jacob Chansley (aka "Jake Angeli" fka "QAnon Shaman" aka "Face of Jan. 6 Insurrection") Enters Plea Agreement

 Jacob Chansley, the Mesa man who became the face of the January 6 attempted insurrection at the U.S. Capitol, entered into a plea agreement this morning. He has pleaded guilty to obstructing a Congressional proceeding.

The maximum sentence is 20 years, and the Asst U.S. Atty stated today that the Sentencing Commission recommendations will likely be 41-61 months

(We are live-tweeting the hearing: https://twitter.com/arizonaslaw/status/1433810293621092355 )

Chansley previously called himself the "QAnon Shaman" and was a fixture at Arizona protests before becoming one of the most widely-known persons involved in the January 6 storming of the Capitol during the certifying of Electoral College votes.

Chansley turned himself in shortly afterwards and has been in several different jails since. Last month, he was in a Colorado facility for psychological testing.


 "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 podcast.

Wednesday, August 25, 2021

NEW: AZ Supreme Court Sharpens Definition Of "Substantially Prevailed" For Public Records Cases; Benefits ACLU and May Impact Election Audit Lawsuit (READ Opinion)

In a case of interesting timing, the Arizona Supreme Court today issued an Opinion in a long-running public records case that the ACLU has had against the State, and it might impact the much-watched lawsuit about the Senate's election audit records.

To be awarded attorneys' fees in many court cases, a party needs to convince the judge that they "substantially prevailed". However, that is often not as clear-cut as you might expect. 

The unanimous court sharpened the definition today for public records cases, suggesting that the trial court judge must conduct a "comprehensive examination" and award fees if the plaintiff "was more successful than not in obtaining the requested records, defeating the government’s denial of access to public records, or securing other relief concerning issues that were contested before litigation was initiated...." (The key word there is the "or".)

 

The Supreme Court remanded the case back to the trial court to apply their broader test. In this case, Superior Court Judge David Gass had already found that the ACLU substantially prevailed, so it is likely to succeed in getting its fees from the state's Department of Child Safety. (More than eight years ago, the ACLU sought records regarding child welfare services.)

Of course (as we have been reporting on this past week), the Supreme Court also is currently considering American Oversight's public records case against the State Senate Republicans regarding the ongoing election audit/recount being conducted by the Cyber Ninjas. That case is not yet at the point where the plaintiff is ready to ask for attorneys' fees, but the Senate's attorneys have already acknowledged that more records will be turned over.

"I’d say the court made it clear that a superior court judge has broad discretion to award fees in public records cases and AO has a better chance of getting fees now than it did before this decision," Phoenix appellate attorney Taylor Young (Burg Simpson) tells Arizona's Law.

Here is today's opinion, written by Justice James Beene:

 "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 podcast.

BREAKING: USDOJ and AZAG Spar On Vaccine "Mandate" Impacts On "John Doe" (READ Filings)

LATE UPDATE, 6pm: Judge Mike Liburdi has set a status conference for this coming Tuesday morning. (10/26 at 10:00am) UPDATE, 3:45pm :  BREAK...