BACK AGAIN: U.S. Supreme Court Forced To Reconsider Arizona's Mystery Title 42 Case

When last we checked in with the status of Arizona v. Mayorkas, a former Arizona Deputy Solicitor General was ready to argue the Title 42-related case in front of the U.S. Supreme Court when the justices  mysteriously* yanked the Title 42-related case from its calendar just one week's notice. The case has been in a judicial purgatory for the past two months.

Now, with Title 42 in the immigration enforcement dustbin, the U.S. Department of Justice is now trying to send the case to the judicial dustbin. 

Not so fast, the Arizona-now-Louisiana Deputy AG tells Arizona's Law. Drew Ensign will tell the Court that the case should go on, noting that it is important for future, similar situations, and that DOJ is directly contradicting what they argued to the Supreme Court last year.

Confused? We do not blame you. Here is our most recent article: "MYSTERIES (MOSTLY) RESOLVED: Fmr AZAG Deputy Solicitor General Ready To Argue "Arizona v. Mayorkas" Title 42 Case In Front Of U.S. Supreme Court... For Louisiana"

The origin of this case makes it all the more confusing: Arizona - under previous AG Mark Brnovich - and the other states - were attempting to INTERVENE in a case brought by private entities to force the Biden Administration to leave the pandemic-era Title 42 immigration restrictions in place. It is the lower courts' refusal to allow the states to intervene that is before the Supreme Court.

In a letter to the Court (published) today, the U.S. argued that the case is now, indeed, moot and that the lower courts are waiting for the highest court to dismiss. That letter is below.

Since Arizona attorney Ensign is now retained by Louisiana's Attorney General to handle this case on behalf of the states, Arizona's Law asked for their position. Ensign states that they intend to oppose the DOJ by the end of the week. He addressed the mootness issue with the Court back in February, and the DOJ's "letter notably makes no attempt to engage with those arguments or explain why the voluntary cessation and capable-of-repetition/yet-evading-review exceptions do not apply in this case."

In other words, it is similar to many pregnancy and abortion cases; even if the woman involved in the case is no longer pregnant, the court should hear the case because the same situation will continue to recur and evade the court's review. Here, future temporary federal orders could be issued and expire before the legal issues are resolved.

We will continue to follow this unusual case. It will not evade our review and reporting.

Arizona's Law is also monitoring the Supreme Court for decisions in two other Arizona-related cases: Arizona v Navajo Nation (water rights) and Jack Daniel's v VIP (parody products)

"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.

* The Court gave no explanation why it was vacating the argument or what would then happen to the case.

BREAKING: Arizona Federal Judge To Question Alan Dershowitz About Why He Should Not Be Sanctioned In Failed Kari Lake/Mark Finchem Pre-Election Lawsuit

Nationally-known attorney Alan Dershowitz will be on the hotseat in an Arizona courtroom later this month, as U.S. District Court Judge John Tuchi will ask him why he should not have to reimburse Maricopa County for some of its legal fees in a Kari Lake/Mark Finchem pre-election lawsuit.

The Order setting a May 24 evidentiary hearing came four months after the parties finished briefing Maricopa County's request for $141,000 in sanctions as a result of the dismissed case "to prohibit the use of electronic voting machines" in last year's elections. Judge Tuchi then found that the plaintiffs "made false, misleading, and unsupported factual assertions" when they repeatedly stated that Arizona does not use paper ballots, and authorized sanctions.

Near the end of the briefing on sanctions, Dershowitz requested that he be released from any possible penalties, claiming that he was barely involved in the case. He was listed as "of counsel" to Lake and Finchem, and (belatedly) completed an application to be permitted to practice in the Arizona court.

Judge Tuchi is allowing 90 minutes for the May 24 hearing, and stated "the Court also will question, at a minimum, Messrs. Parker and Dershowitz."

Lake, Finchem and/or their attorneys also have sanctions pending in their Election Contest cases.

"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.

SUNS UPDATE: Tonight On Court, Tomorrow In Court; Bankruptcy Hearing On Whether Suns Violated Bally Sports' Automatic Stay (READ Filings)

UPDATE, 5/10, 1:45pm: At the conclusion of today's hearing, the Bankruptcy Court Judge ruled that the Phoenix Suns had VIOLATED the automatic stay laws, and VOIDED their new TV contract for next year.

Judge Christopher Lopez noted in his Order (below) that he is reserving the right to sanction the Suns by awarding attorneys' fees and costs to Bally. He also noted that the portion of the new TV deal for broadcasting the Phoenix Mercury's WNBA games is still in place.

***

The Phoenix Suns face a critical Game 5 in their playoffs series, on the Denver Nuggets' home court.

Tomorrow morning, the Phoenix Suns face a critical hearing, in Bally Sports' home Bankruptcy Court. And, instead of Book, KD, Ayton, CP and crew, the team will rely only on DC to carry the workload.

The issue is whether or not the Suns violated the Bankruptcy Code's Automatic Stay by prematurely entering into a new broadcasting agreement for next season's games. Once Bally's parent company (Diamond Sports) filed for bankrupcty protection, other parties are limited in the actions involving Bally that they can take.

Even though Bally was done covering Suns' games at the end of the regular season last month, they claim that the contract was valid through the conclusion of the entire NBA season and that they have a right to try to match any other broadcasting rights offer.

The Suns Executive Vice President Dan Costello is expected to testify, and told the court yesterday that the new contract has a clause stating that it is subject to Bally's rights. Bally's replied today that this is the first they have heard of that, and that it the Suns' "belated sleight of hand cannot camouflage the fact that the Suns have already confirmed through their actions that they have no intention of complying with those backend rights, and actions speak louder than words."

The Bankruptcy Court judge will conduct an evidentiary hearing tomorrow.

Meanwhile, the judge today ordered Bally's to make (another) disgorgable payment to the Arizona Diamondbacks this week. The network continues to broadcast Diamondbacks games, and their dispute in Bankruptcy Court continues.

"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: Kari Lake's Attorney Files New Lawsuit To Get Video From Runbeck (READ Complaint)

UPDATE, 5/23, 7:40PM:

UPDATE, 5/16, 8pm: 

Judge DOES ALLOW @KariLake to present evidence showing Maricopa "failed to conduct any level 1 signature verification".

He's also not impressed with ever-changing theories: "also recognizes the contradiction between this new theory & the other allegations in Count 3". Contradiction, per Judge: "her own affiants declare that they conducted signature review at level 1."

"The Court will give such affidavits and the evidence presented at Trial the weight that each is due. Plaintiff is further bound by her concession that she “brings a Reyes claim, not a McEwen claim. She challenges Maricopa’s failure to act, not its action on any particular ballot.”

Chandler attorney Tom Ryan and I will be providing live coverage of the trial, starting tomorrow morning at 9am, on Twitter. (twitter.com/ArizonasLaw)

UPDATE, 5/16, 10:30am: BREAKING: DON'T FENCE ME IN; Kari Lake Attorneys Tell Judge He Got It Wrong By Boxing Them In Pre-Trial

Judge Peter Thompson granted Kari Lake a trial on her signature verification count last night, but set forth the constraints that he says they are attempting to prove in order to prevail. By 2am, Lake's attorneys had filed a Motion to reconsider and arguing why the judge got it wrong.

"The Court held that Plaintiff alleged only that Maricopa failed to perform “ANY steps to comply with level 2 or level 3 screening or notification of electors to cure ballots where level 1 screeners found signatures were inconsistent.” Order at 3. However, the Complaint pleads violations at all levels of signature verification i.e., level 1 as well as levels 2 and 3. In addition, the Complaint pleads a consistent factual bases for this Court to find that Maricopa’s misconduct in the 2022 general election with respect to levels 1, 2, and 3, and that 130,520 ballots would fail as egregious mismatches and another 167,176 2022 ballots would fail Maricopa’s signature-verification process."

The oral arguments last Friday were the specific opportunity for Lake to explain to the judge what they were alleging and why the Count should go to trial tomorrow. The judge took a significant amount of time and effort reading and listening to their somewhat shape-shifting arguments, and determined what he would consider from their witnesses. 

This new Motion appears to be an effort to extricate themselves from a difficult box that they placed themselves in.

***

UPDATE, 5/15, 8:30pm:

The long-awaited decision from Judge Thompson. There will be a trial on Count 3 (sig verification) on Wednesday. The Lake effort to revive Count 2 (tabulators) is DENIED. (Ryan Heath's amicus brief is REJECTED.)

UPDATE, 5/12 1pm: "BREAKING: Kari Lake's Attorney Files New Lawsuit To Get Video From Runbeck"

In a further expansion of Kari Lake's efforts to overturn last November's gubernatorial election, one of her attorneys filed a NEW public records lawsuit this week, seeking to obtain post-election video from Maricopa County contractor Runbeck Election Services.

The new case has been assigned to Superior Court Judge Joseph Mikitish, and there are no dates set yet.

Maricopa County has utilized Phoenix-based and nationally-used Runbeck for a number of elections-related tasks, and that has become an issue in Lake's ongoing Election Contest lawsuit. We the People Arizona is represented by Bryan Blehm, and the Complaint cites the decisions in the public records lawsuits filed against the State Senate and Cyber Ninjas as support. The Court of Appeals determined that Arizona's public records laws did apply to Cyber Ninjas.

Arizona's Law contacted Maricopa County officials, and they reiterated their previous answer to Blehm, that the County does not have the video to reply to public records request. Runbeck's attorneys had also declined to turn over the video, stating there is "no legal obligation to do so."

Blehm has several other public records request lawsuits filed against both Maricopa County and the Arizona Secretary of State's Office. He had indicated to the judge in the Election Contest case that he might seek to fold the suit about the ballot envelopes into the Election Contest, but he did not.

Because the Election Contest statutes do not allow for discovery (other than inspection of ballots), these PRR suits are a sort of a parallel track. However, none of them are being expedited by either the plaintiff or the Court.

***

UPDATE, 5/12, 12:45pm:

We can now post the Replies filed yesterday. We are still looking for the *Responses*.

Here they are, and here is our (then-)live coverage of this morning's oral arguments. (Thank you to the great folks at the Superior Court Clerk's office and several attorneys for providing the filings.)

LIVE COVERAGE: Coming up at 9am, live coverage of oral arguments in the Kari Lake Election Contest.

Judge Peter Thompson will be deciding whether to:
1) to dismiss the remaining signature verification count or to proceed to trial next week
2) Lake's request to reopen... pic.twitter.com/wElef4QRET

— Arizona's Law (@arizonaslaw) May 12, 2023

 

***

UPDATE, 5/10, 7am:

Yesterday (at 11:59pm) was the deadline for parties to file any Motions they felt were justified in the wake of the Supreme Court sending the case back to determine Count 3 (signature verification). We received and posted the Secretary of State's supplement to their previous Motion to Dismiss below. Here are the rest of the filings:

• 1) Kari Lake's Motion for Relief on Count 2 (logic and accuracy)
• 2) Maricopa County's supplemental memo to dismiss Count 3
• 3) Katie Hobbs' (as Contestee) supplemental memo to dismiss Count 3
• 4) Ryan Heath's Motion and Amicus Brief on behalf of independent voter David Mast

At first blush, the big surprise is that Lake did NOT attempt to fold in the separate public records request lawsuit related to early voting ballot envelopes. (That case was reassigned yesterday to Judge Melissa Iyer Julian.) Lake had indicated to the Court (see below) that consolidation would be presented. (Probably a good non-move by Lake's counsel.)

The Motion to throw out the December dismissal of Count 2 alleges that there was newly-discovered evidence and/or fraud/misrepresentations that warrants a new look at the allegations. In the 16-page Motion (with nearly 250 pages of exhibits (below), they flesh out their claims that Maricopa County "secretly tested" all of its tabulators after it had "falsely certified" them (and before Election Day). Lake is alleging that:

"...not only did Maricopa officials knowingly violate the law mandating L&A testing, but that they knew about and planned the Election Day debacle. Further, Jarrett’s demonstrably false and conflicting testimony shows that Maricopa officials are attempting to cover up their misconduct."

Although it was indicated that whistleblowers' testimony would be significant, the motion relies upon analysis by Clay Parikh. 

Maricopa County's supplement does a very good job of explaining the signature verification laws and processes, noting that Arizona law requires them to determine whether the signature on the ballot envelope is "consistent" or "inconsistent" with those in the voter's records. It is not a more extensive analysis that would be involved in a verfication, and is one of several fraud prevention measures set forth by law.

Responses are due before midnight tonight, Replies tomorrow, and there will be oral argument on Friday. 

Heath, the attorney who has offered his thoughts and insights on this case to several of the judges/justices previously (and attaches them to this brief), makes his arguments as to why the judge should proceed on Count 3 - and that he has already seen enough evidence to set aside the November 2022 election results.

 

***

UPDATE, 5/9, 3pm, "NEW: "It is time for finality"; Secretary of State Asks Court To Dismiss Last Count Standing In Kari Lake Election Contest (READ Motion)":

Saying "it is time for finality", Arizona Secretary of State Adrian Fontes today urged the judge to -again - dismiss the last count standing in Kari Lake's Election Contest lawsuit.

Fontes's attorneys filed the "Supplemental Memorandum" today, and the other parties to the case are also expected to file motions (or, supplements) by midnight tonight. This first one is published below.

The memorandum notes that Judge Peter Thompson must go back in time to when only the Election Contest Complaint had been filed, and determine whether those allegations state a provable claim to overturn November's election results. They do not, the memo states.

It goes on to argue that the Arizona Supreme Court's reversal and remand of the dismissal of Count 3 specifically did not order a trial on the signature verification count "seven months after the election". Further, the Complaint's allegations were too hazy and conclusory to survive the motion to dismiss and comparing the ballot envelopes to multiple signatures in the voter's record is appropriate as a matter of law.

Lake is expected to file motions to consolidate the case with a separate lawsuit to obtain the ballot envelopes, and a motion to reconsider the dismissal of Count 4 (dealing with logic and accuracy testing). The Supreme Court affirmed the dismissal of that count.

***

UPDATE, 5/9, 12:30pm, "NEW UNCERTAINTY: Judge Recuses Himself In Ballot Envelopes Lawsuit Tied To Kari Lake Election Contest (READ Minute Entry)": Kari Lake's attorneys are expected to file a motion today to combine her Election Contest with a public records lawsuit to obtain ballot envelopes. The judge in the latter case is now recusing himself, adding some (temporary) uncertainty into the proceedings.

Judge Michael Gordon was assigned to the We the People public records suit on April 28. The Minute Entry recusing himself - without a stated reason - was filed this morning. Civil Presiding Judge Danielle Viola will assign a new judge to the case. 

An interesting outcome could be that she taps Judge Peter Thompson to handle the related matter, as consolidation of the two very statutorily-driven cases seems unlikely. (Thompson has been handling the Election Contest.) He would then be better able to manage the interplay between them.

***

UPDATE #2, 5/8: Superior Court Judge Peter Thompson set a tight timeline for the parties this afternoon, and will hear oral arguments on whether he should hold a trial on Kari Lake's signature verification Count 3 next week.

Saying the statutes give him "little wiggle room", Thompson asked for Motions to be filed tomorrow, Responses on Wednesday, and Replies the following day.

We expect three separate Motions tomorrow:

1) Defendants to re-package/re-file Motions to Dismiss Count 3 (sig verification)

2) Lake to Move for Reconsideration of the dismissal of Count 4 (logic and accuracy)

3) Lake to Move to Consolidate this case with their public records lawsuit re: ballot envelopes

After hearing oral arguments Friday morning, Judge Thompson said he "will do my best" to rule later that day. That is important because his rulings will determine whether or not there will be a full-blown, 3-day trial starting next Wednesday. ("I can't give you a blood oath promise, but I know time is short." He noted several times that he is a one-person crew when it comes to deciding and writing up his rulings.)

Kari Lake remotely joined the hybrid status conference shortly after it began, and the judge noted her appearance at the end of the conference. 

***

UPDATE, 5/8: We will be providing live coverage of this status conference at 2pm, here on Twitter:

LIVE COVERAGE: Join the incisive and irrepressible @tomryanlaw and I for live coverage of this afternoon's status conference in the on-going @KariLake Election Contest lawsuit to reverse the Nov. '22 gubernatorial election.

Right here, right now. (Well, 2pm, anyway.)

— Arizona's Law (@arizonaslaw) May 8, 2023

*** 

Original article, 5/5: "UPDATE: Kari Lake Tells Judge She May File New Lawsuits To Overturn Election; Status Conference Set For Monday (READ filing, Order)"

Within hours of being sanctioned by the Arizona Supreme Court for repeatedly making "unequivocally false" statements to the Justices, Kari Lake's attorneys informed Superior Court Judge Peter Thompson that they are "contemplating" a new lawsuit to allege her constitutional rights have been violated, and that they may re-challenge Maricopa County's logic and accuracy testing.

Judge Thompson has set aside 30 minutes for a status conference this coming Monday afternoon (2pm).

Lake's attorneys also indicated that they will try to consolidate the long-running Election Contest case with a recently-filed public records lawsuit to get the early-voting ballot envelopes from the County.

These three possible actions to extend Lake's legal battle to claim victory in last November's gubernatorial election were set forth in the Motion for a Status Conference.

"Plaintiff-Contestant Lake is also contemplating a motion to reconsider the dismissal of Count IV (logic-and-accuracy testing) under ARCP 60(b)(3) within the same likely time frame as the proceedings remand. Indeed, she may also bring a new and separate action under 42 U.S.C. § 1983 and state law to press her federal and Arizona constitutional claims." (The U.S. Code section cited deals with claims that constitutional rights have been violated.)

The public records request lawsuit was filed on April 25 and has been assigned to Judge Michael Gordon. No effort to expedite that case has been made, and an effort to consolidate a case contending that Maricopa County must turn over voters' signatures and envelopes with an Election Contest would be unusual. Even though the cases are related by subject, the Election Contest statutes are very limiting in what may occur.

Yesterday, the Arizona Supreme Court sanctioned Lake's attorneys for their repeated false statements to the state's highest court that it was an "undisputed fact" that more than 35,000 ballots had been injected into Maricopa County's election tallies. 

While noting that Lake's alleged support for the ballot injection claim are two exhibits - "one exhibit that included an estimate... and a different exhibit showing a precise count" - Chief Justice Robert Brutinel focused on the attorneys' statements that the injenction was undisputed. "More to the point here, this was certainly disputed by the Respondents. The representation that this was an "undisputed fact" is therefore unequivocally false." (He then footnoted part of the ethics rules stating "the lawyer must not mislead the tribunal by false statements of law or fact or evidence that the lawyer knows to be false.")

The Supreme Court thus decided not to sanction Lake's attorneys by forcing them to repay the defendants' legal fees, but by the "extraordinary remedy" of paying a fine of $2,000 to the Court. There was no dissent.

"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 AFFIRMED VS AZGOP

 The AZ Court of Appeals AFFIRMED a $17,000 sanctions award against the AZ GOP today.

The 2020 election case is the one where the AZGOP claimed that Maricopa County erred by auditing vote Center results rather than precinct results. (A distinction without a difference, in most ways. Especially since the law had adjusted for the shift.)

https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2023/CV%2021-0201%20Ariz.%20Republican%20Party%20OP.pdf

The AZ GOP has already deposited the monies with the court. If not appealed to the AZ Supreme Court, the money will be released to the County.

This is the oldest of the outstanding election case sanctions issues. 

As we've previously noted,  the amounts requested/awarded are gradually increasing.

BREAKING UPDATE: Mark Finchem and Attorney Are Sanctioned... Again

BREAKING UPDATE, 5/26: In a late Friday afternoon decision, Judge Melissa Iyer Julian delivered a long-awaited Judgment issuing $48,000 in sanctions against unsuccessful Secretary of State candidate Mark Finchem and his attorney, Daniel McCauley.

The judgment holds McCauley responsible for $7,434, representing the Secretary of State's Office's attorneys fees. Finchem is responsible for both defendants' court costs and Contestee Adrian Fontes's attorneys fees - totaling more than $40,000.

The previous dismissal of the Election Contest is already on appeal, and the sanctions will now become part of that appeal.

Finchem and/or his attorneys have also been sanctioned in two other cases currently on appeal - a pre-election suit with Kari Lake to ban the use of voting machines and a dismissed defamation case about his actions during the January 6 attack on the U.S. Capitol.

*****

UPDATE: Finchem's Zombie Appeal Is Back On Hold, His Attorney Wants Sanctions Order First (READ Joint Motion, Order)

The zombie appeal of Mark Finchem's unsuccessful Election Contest of last year's Secretary of State race is back on hold, as his attorney seems to expect to be sanctioned in Superior Court for the case.

The parties jointly asked for the stay of the appeal, which was granted. However, the wording of the Motion makes it clear that Finchem's attorney, Dan McCauley, is preparing for Judge Melissa Iyer Julian to levy sanctions against him and/or his client. ("The Parties are awaiting a final judgment from the superior court on the sanctions issue. Once that occurs, undersigned Mr. Finchem intends to appeal the superior court’s sanction order.")

After the entire case was dismissed before trial in December, Finchem filed a Notice of Appeal. As detailed earlier by Arizona's Law, McCauley was then awaiting further instructions from his client and the appeal appeared to be abandoned and dismissed. The courts gave it a new life.

Judge Julian's ruling on sanctions could come at any time.

Finchem and/or his attorneys are also facing sanctions in two other cases brought before the November election. One was a defamation case he, Rep. Paul Gosar and Anthony Kern filed about January 6 allegations, and the second is a case he and Kari Lake filed to try to force hand-counting last November.

"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, ROLLERCOASTER RIDE STOPS HERE: 9th Circuit DISSOLVES Arizona Injunction Against (Part Of) Biden's COVID Vaccine Policies (READ Opinion)

Most rollercoaster rides end before you know it. The legal rollercoaster ride which began when then-Arizona Attorney General Mark Brnovich filed his "1st in the nation" lawsuit against President Joe Biden's COVID vaccine policies may finally be slowing to a stop today.

The 9th Circuit Court of Appeals today DISSOLVED the permanent injunction Arizona had previously received against the so-called Contractor Mandate portion of Biden's Executive Order(s). The rest of the case - including counts that attempted to claim the EO had violated immigration laws - was dismissed by Judge Michael Liburdi earlier this year after new Attorney General Kris Mayes took office and stipulated with the U.S. Department of Justice. 

And, Mayes is highly unlikely to appeal today's decision to the U.S. Supreme Court, so you can expect to see a dismissal soon filed at the the District Court level.

Today's unanimous 50-page opinion acknowledges that a couple of other Circuits in other parts of the country did disagree, finding that the Major Question Doctrine can be applied to analyze Presidential Executive Orders. This split between the Circuits makes it more likely that the Supreme Court will hear the U.S. DOJ's appeal(s) in those other 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.

BREAKING: Diamondbacks Get May 31 Evidentiary Hearing In Effort To Get Bally Sports To Pay For TV Broadcasts; Team Refuses To Say How Much "Significant Portion Of Total Revenues" They're Stiffed

The Arizona Diamondbacks may be in first place in the division standings, but they are (tied for) last in TV revenues received. The baseball team has not received a "signifcant portion of their total revenues" since Bally Sports' parents filed 30 bankruptcies last month.

Today, a Bankruptcy Court judge in Houston set a May 31 evidentiary hearing in the team's effort to receive its payments despite the court protections for Bally. (They list several alternative ways for the court to allow the payments.)

The Diamondbacks also received permission from the court this week to hide the amount of money they receive from the cable network for the broadcasts of most of their games. 

Fans have complained that they have not been able to see the broadcasts, possibly due to other complications caused by the bankruptcies. Bally's is actually part of the "Diamond Sports" family of entities, and Diamond Sports is largely owned by the conservative Sinclair Broadcasting. The Diamondbacks are one of about 13 MLB franchises waiting for money from Bally's/Diamond/Sinclair.

The hearing will cover those other teams', as well; however, the Diamondbacks have separately - and, aggressively - pursued their creditor's rights in the bankruptcy. (They are being represented by Phoenix's Gallagher & Kennedy, as well as a Houston firm.)

The Diamondbacks justified hiding the amount of their broadcast rights by claiming it could hurt them. CFO Tom Harris said it "is both sensitive commercial information and subject to confidentiality. It is essential that the information sought to be redacted remain confidential to protect the Diamondbacks’ payment structure and amounts, which information is commercially essential to the Diamondbacks’ business and operations, and which information, should it be disclosed, would cause the Diamondbacks potential harm."

The Diamondbacks may eventually need to negotiate with other potential cable networks, but they are not clear about the potential harm. The Court has extended Bally's deadline to file bankruptcy schedules (which would contain the outstanding debts) until May 12.

The Diamondbacks' 20-year contract with the broadcasters is said to average $75M/year, and it appears that the payment due in March - reported to be more than $30M - was the first of a few installments for this year's sum. (There are other marketing and ancillary fees Bally's is supposed to pay to the Diamondbacks.

Before the bankruptcies were filed, Major League Baseball indicated that they would move to cancel Bally's/Diamond's/Sinclair's rights and would take over the broadcasts. Commissioner Rob Manfred acknowledged that such an arrangement would not match the Bally's revenue "in the short term."

The Diamondbacks' and MLB's bankruptcy strategy does not appear to focus on canceling the contracts. Rather, they are trying to get the Court to order Diamond Sports to make payments for the quarter of a season that will have passed before the May 31 hearing, and ongoing payments as they broadcast the game.

Bankruptcy laws are designed to provide protections for the debtor and to put creditors on fairer footing - to prevent more aggressive creditors from getting an unfair upper hand over similar creditors or destroying the ability of the debtor to reorganize its business.

"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: Fontes Asks Supreme Court To STRIKE Lake's Stretch To Get Final Word On Sanctions Issue (READ Motion to Strike)

UPDATE, 4/19: "UPDATE: Fontes Asks Supreme Court To STRIKE Lake's Stretch To Get Final Word"

Secretary of State Adrian Fontes's attorneys are asking the Arizona Supreme Court to STRIKE Kari Lake's most recent effort to avoid having additional sanctions levied against her.

Last week, Arizona's Law covered Lake's filing, calling it "another unauthorized filing to support a not-allowed motion". Fontes is not asking the Justices to strike the entire "Motion to Reconsider"; instead, he is suggesting that the "Reply" is actually a thinly-veiled and disallowed "sur-reply" (aka reply to a reply) on the sanctions motions.

In its March 22 Order, the Supreme Court unanimously refused to accept Ms. Lake's Petition for Review of the dismissal of all but one of her election contest counts - the signature verification issue. In the same Order, they gave Lake a chance to file a Response to defendants' request for sanctions - and a chance for defendants to Reply. That was it.

The Supreme Court instructed the parties to explain why sanctions should not be granted for Lake's claims that more than 35,000 ballots were illegally injected into Maricopa County's election. The Justices said there was no support for those claims in the record.

Instead, Lake combined her sanctions Response with a motion to reconsider the denial, even though court rules prohibit such a motion. After the defendants' sanctions Replies referenced the reconsideration request, Lake submitted her reply-to-a-semi-response.

The Motion to Strike concludes: "This Court should strike Ms. Lake’s Sur-Reply and view it for what it is: the latest of several attempts to harass two duly elected officials and their constituents by improperly and unreasonably delaying and expanding these proceedings in order to very publicly perpetuate the unjustified delusion that Arizona’s elections are corrupt and cannot be trusted."

Original article, 4/13: " Lake Attorneys Dig Deep(er), Give Supreme Court Another Unauthorized Filing To Support Not-Allowed Motion (READ Reply)"

Maybe moreso than even political candidates, attorneys are known for always wanting to get the last word. Therefore, courts set up rules to prevent endless "yeah, buts".

"No, I get the last word!"

But, Kari Lake's attorneys are not just playing to the Justices in their already-decided Election Contest appeal to the Arizona Supreme Court. Which might explain why today they filed another "yeah, but" which is not permitted by court rules, to support their Motion for Reconsideration that is expressly prohibited by the Supreme Court's rules.

None of which can help their case as the Justices decide whether to sanction them for their earlier unsupported accusations about more than 35,000 ballots being illegally injected into Maricopa County's election last year.

Besides trying to take a fourth bite of the apple regarding their injected ballot theory, Lake claims today (below) that she did not violate Rule 22(f) that prohibits filing "a motion for reconsideration of... an order denying a petition for review" because she "did not request reconsideration of 'the *entire* election contest'". (I cannot throw Lake or her attorneys very far, but I could throw them farther than that Lake defense would fly.)

***

Recent relevant articles:

1) UPDATE: Kari Lake Acting Under "Undeniably False Pretenses" and Must Be Sanctioned, Fontes' & Hobbs' Attorneys Tell Supreme Court 

2) TRIPLING DOWN: Don't Sanction Us Because Lake "Honestly Believes" There Were 35k+ Injected Ballots - Even If Not In the Record

3) AZ Supreme Court Sends Kari Lake Case Back To Trial Court To Look At Whether Maricopa County Followed Signature Verification Policies In 2022; Denies Review Of Rest Of Appeal

"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 UPDATE: Kari Lake Acting Under "Undeniably False Pretenses" and Must Be Sanctioned, Fontes' & Hobbs' Attorneys Tell Supreme Court (READ Replies)

The Secretary of State's Office's and Katie Hobbs' attorneys filed their Replies with the Arizona Supreme Court yesterday and today, arguing that it is "essential" that Kari Lake and/or her attorneys be sanctioned for alleging "under undeniably false pretenses" that more than 35,000 ballots had been illegally injected into Maricopa County's election.

The Supreme Court had declined to consider most of Lake's appeal, and asked for the additional briefings about sanctions on that ballot-injection claim - which they said was not supported in the trial court's record. Lake's attorneys filed their Response last week, tripling down on the claim and asking the court to reconsider their entire appeal again. (Rules do not permit a Motion for Reconsideration of a denied Petition for Review.)

Both Replies covered similar ground. Hobbs (in her personal capacity as the candidate who defeated Lake by more than 17,000 votes) set out a chronology of the "moving target" of Lake's chain-of-custody claim, concluding:

"Lake would now have this Court believe that she has finally stumbled upon a bullseye, having uncovered an “undisputed fact” of 35,563 unaccounted-for ballots lurking in the trial court record that her counsel and three Arizona courts had somehow missed. But once again Lake’s claims are not supported by the evidence."

The Secretary of State's Reply was equally blunt: 

"Ms. Lake and her counsel have attempted to mislead this Court – and worse, the public at-large – by knowingly misstating the facts and evidence on appeal. This is not an instance of someone invoking their constitutional right to free speech. Ms. Lake and her counsel have tried to use our judiciary as a mechanism to topple an election under undeniably false pretenses. Such misconduct warrants stern rebuke from Arizona’s highest Court. Sanctions are not just appropriate, they are essential to ensure that all who seek judicial redress do so in good faith."

At the trial court level, Judge Peter Thompson did not sanction Lake's team for opposing attorneys' fees, but did order her to repay $33,040 in taxable costs. 

Both Replies also pointed out the Court Rule (22(f)) not allowing Motions for Reconsideration in this situation. 

The Supreme Court should rule on the sanctions motions shortly, and then send it back to Superior Court for Judge Thompson to re-rule on Motions to Dismiss the last remaining count dealing with alleged improper signature verification.

"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.