Monday, August 8, 2022

UPDATE: Opponent Claims Scottsdale Resident Kevin Robinson Ineligible For Phoenix City Council; Expedited Appeal Filed With AZ Supreme Court

Phoenix City Council candidate Moses Sanchez is asking the Arizona Supreme Court to decide whether opponent Kevin Robinson resides in the district or in neighboring Scottsdale. The Court will rule next week.

The appeal was filed Friday afternoon, after Superior Court Judge Scott McCoy ruled on Wednesday that the evidence shows that Robinson had moved to Ahwatukee last year, even while the rest of the family had not. Phoenix City Code gives some guidance on the residency requirement, and McCoy came down on Robinson's side even while noting some skepticism because the thermostat was typically "set at relatively high temperatures".

The relevant Code section: "If a person’s family resides in one place and the person does business in another, the former is the person’s place of residence. However, a person whose family resides in one place, but who has moved to another place with the intention of remaining there, shall be regarded as a resident of the place to where the person has moved."

The Supreme Court has asked for briefing to be completed by next Wednesday, and - as is customary in these expedited election appeals - they are not setting oral argument.

Sanchez is represented by Jack Wilenchik and Robinson by Dan Arellano.

Here is Judge McCoy's ruling:

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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, July 26, 2022

BREAKING: NY Times Publishes Arizona Attorney's Emails Re: "Fake Electors" Plans

The New York Times this morning published 2020 emails from Phoenix attorney Jack Wilenchik about the plans to assemble "fake" electors to help stop the certification of the Electoral College count.

Wilenchik was representing AZGOP Chair - and Trump elector - Kelli Ward in her contest of the election, which was before the Arizona Supreme Court on December 8. He was also communicating with Trump attorney/advisor Boris Epshteyn (and Christina Bobb) about the cases and the plans to "sending in 'fake' electoral votes to Pence".

The emails show that Wilenchik seemed to have a clear-eyed view of both the plans and the court cases - he used emojis to clarify that it would be better to call them "alternative" votes, and that the Arizona Supreme Court was likely to deny his appeal of Superior Court Judge Randall Warner's decision.

In fact, the Arizona Supreme Court unanimously denied his appeal later that day. (As our Arizona's Law article had suggested the day before.)

Wilenchik also discussed the plan to convene the unelected Trump/Pence electors in Phoenix. He viewed it as "fake" votes to give Congress/Pence a chance to dispute election. "Kind of wild/creative", but no "legal harm" in it. (He stated that Ward raised the idea of keeping the convening of the fake slate secret and springing it on Congress and the media on January 6.)

Interestingly, one of the emails also indicates that Arizona Rep. Andy Biggs was trying to get Wilenchik to testify before the Senate on the evidence uncovered in the litigation. (This was the case where a sampling of ballots in the East Valley were inspected and found a high enough level of accuracy that, if extended, would have only changed 103 votes to Trump; not nearly enough to impact the Arizona results in Biden's favor.)

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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, July 20, 2022

BREAKING: "Unqualified"! Hobbs Moves To Exclude Doug Logan & Ben Cotton Testimony From Tomorrow's Hearing On Electronic Voting Machines (READ Motion)

Arizona Secretary of State Katie Hobbs filed a Motion to exclude testimony from former Cyber Ninja Doug Logan and other election conspiracy theorists from tomorrow's hearing. U.S. District Court Judge John Tuchi set aside several hours for evidence and arguments on whether to grant an injunction to prevent the use of electronic voting machines in this year's (underway) elections.

The lawsuit was brought by Trump-endorsed candidates for Governor (Kari Lake) and Secretary of State (Mark Finchem). 

The Hobbs' Motion in Limine argues that

"Plaintiffs rely on declarations and anticipated testimony from five individuals: John Mills, Ben Cotton, Walter Daugherity, Douglas Logan, and Shawn Smith.  Their declarations and anticipated testimony, however, advance generalized conclusions that voting machines are unreliable. These opinions largely rest on conjecture, conspiracy theories, and self-serving statements and reports that were produced to (unsuccessfully) overturn the 2020 election results. Plaintiffs’ proffered declarations and anticipated testimony, which purport to be expert opinion, are unreliable, unhelpful to the trier of fact, and irrelevant to proving Plaintiffs’ claims. The declarations’ conclusions are hardly worthy of the kind of analysis required for “scientific, technical, or other specialized knowledge,” but even if they were, Plaintiffs’ “experts” are unqualified to offer opinions in the areas of electronic voting systems or electronic voting system security."

The five hour hearing is also set to include arguments on Maricopa County's Motion to Dismiss the entire case. 

Here is today's Motion to Strike/Exclude:

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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.

Friday, July 15, 2022

BREAKING: Rep. Biggs' Campaign Spends $92,000 On Legal Fees (READ Campaign Finance Report)

UPDATE, 10:25pm: Arizona Rep. Paul Gosar's campaign paid $55,000 in legal fees during the 2nd quarter. $45,000 was paid to Alex Kolodin's New Orleans-based firm, and another $10,000 to Tim LaSota. Gosar filed his report moments ago, after the midnight EDT deadline.

Arizona Rep. Andy Biggs has spent $92,000 in legal fees since March 2022. Most of those fees were paid in May and were likely related to the unsuccessful challenge to his nomination by Democratic-related groups. However, that was also the month the January 6 Select Committee issued a subpoena to Biggs and he objected to it.

The noteworthy expenses were disclosed today in the Biggs' campaign finance report filed with the FEC today. Arizona's Law has reached out to the Biggs campaign for comment, and will update this report as necessary.

Biggs retained Arizona political law attorneys Kory Langhofer and Tom Basile (Statecraft), and began paying them in March. Langhofer has represented former President Donald Trump committees and many other Republican candidates and groups.

For example, Rep. Debbie Lesko's campaign also retained Statecraft and paid them $7,000 on June 1. (Rep. Paul Gosar's campaign has not yet filed.)

In March, Biggs - more accurately, Biggs' contributors - paid $4,215 (noted in the previous report). The following month, $7,000 was paid. The Biggs campaign sent Statecraft $66,996 on May 17 and another $13,987 on June 14.

The Democratic challenge to Biggs, Gosar and Secretary of State candidate Mark Finchem was based on their participation in planning the January 6 insurrection. The cases were filed on April 7 and were finally decided by the Arizona Supreme Court on May 9.

Biggs' campaign finance filing shows that legal fees were incurred and/or paid both before and after the nomination challenge.

But for the legal fees, Biggs' campaign brought in nearly the exact amount of contributions as they paid in expenses, and their cash on hand dropped to $777,000. Biggs has no primary election competition, but an independent (Clint Smith) and Democrat (Javier Ramos) will be on the general election ballot.

For perspective, the legal fees paid to date by Biggs' campaign is dwarfed by the $1.1M spent by Arizona colleague Rep. David Schweikert  during his long-running ethics probe.

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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, July 6, 2022

BREAKING: AZ Supreme Court To Brnovich and Ducey: Meh, Election Procedures Manual Challenge Is Not "Extraordinary"

The Arizona Supreme Court today effectively thumbed their collective noses at Arizona Attorney General Mark Brnovich's late lawsuit to try to force a new Elections Procedures Manual from Secretary of State Katie Hobbs.

The Justices refused to reach down and take the appeal from the intermediate Court of Appeals, saying none of the criteria - including for "extraordinary circumstances" - have been met. (Governor Doug Ducey also urged the court to take the case.)

The decision guarantees that Brnovich will not succeed in forcing a rewrite. Yavapai County Superior Court Judge John Napper said the statutes setting up the process for approval of a new manual had been followed and that Brnovich was "far too late" in filing the lawsuit.

Here is the Order:


Wednesday, June 29, 2022

BREAKING: Supreme Court REINSTATES Arizona's Prohibition On Providers Who Perform Abortions Due To A Genetic Anomaly

UPDATE, 6/30, 7:45am: BREAKING: Supreme Court REINSTATES Arizona's Prohibition On Providers Who Perform Abortions Due To A Genetic Anomaly

The U.S. Supreme Court this morning decided that Arizona's 2021 law prohibiting medical providers from performing an abortion if they know it is solely because of genetic abnormalities could go into effect even while the appeal process was pending.

AZ Attorney General Mark Brnovich had requested the ruling back in December, while the case is proceeding in both the District Court and the 9th Circuit.



As more fully described below, this adds a level of confusion to the several Arizona laws restricting abortion care.



UPDATE, 6/29, 4:15pmDID THEY (IN THE SHADOWS), OR DIDN'T THEY? Adding to Confusion, U.S. Supreme Court *MAY* Have Discussed Part of AZ Abortion Ban TODAY

Ah, the shadows cast by the shadow docket are long on the penultimate day of the session.

Earlier today, Arizona's Law broke the news that the U.S. Supreme Court Justices were conferencing TODAY on a portion of one of Arizona's (several) anti-abortion laws. After some odd postings by the Court and further investigation, it is unclear whether the discussion took place.

We posted the docket this morning, which includes an entry from earlier in the day suggesting that they were going to conference the Brnovich v. Isaacson case. (Below) A couple of hours later, we refreshed the docket to see if an Order had been docketed. To our surprise, the entry scheduling the conference had disappeared.

After ill-fated - and, slightly humorous - attempts to get an answer to the mysterious disappearance from the Court's Public Information Office (before closing time), we waited for clarity.

It arrived. Partly. The Clerk's Office re-posted the conference announcement, along with an entry noting that Justice Elena Kagan - who is assigned to handle emergency matters for the 9th Circuit - had referred the Motion to the entire Court. That may have explained the temporary disappearance of the conference entry, but it was also a clear sign that Kagan was not going to use this to re-dissent or try to distinguish it from Dobbs.)

However, the Court's calendar shows that no conference took place today. (It is regularly refreshed during the end of session hubbub.)

Did they or didn't they? That is the question. And Arizona's Law will bring you the answer as soon as it becomes available.




Original article, 6/29, 10:45amBREAKING: U.S. Supreme Court Considering Part of AZ Abortion Ban TODAY; Elsewhere, Oral Argument On July 8 On "Personhood Provision"

Hot on the heels of last week's overturning of Roe v. Wade, the U.S. Supreme Court is TODAY considering the fate of part of Arizona's 2021 anti-abortion ban.

Arizona's Law readers may recall that Attorney General Mark Brnovich asked the Court in December to state the prohibition on medical providers performing an abortion if they know it is solely because of genetic abnormalities could go into effect even while the appeal process was pending.

The Supreme Court did not rule on the emergency motion, likely because it would have tipped their hand about their deliberations on the Dobbs case.

With Friday's historic retraction of the constitutional rights set forth in Roe, the path was cleared for today's conference on the Arizona case. An Order deciding the status in Arizona will likely come before the Supreme Court adjourns for the summer (in the coming several days).

That could add another layer of confusion to the current legal landscape in Arizona surrounding abortion care. Planned Parenthood and other abortion providers have paused providing such care in light of the uncertainty.

The other part of Arizona's 2021 law (SB1457) is also currently at issue as part of the same case, in Arizona's U.S. District Court. The ACLU asked Judge Douglas Rayes to change his decision about the so-called Personhood Provision in light of Friday's Dobbs' ruling. 

Rayes has set oral argument on that issue for July 8.

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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.

Thursday, May 19, 2022

BREAKING: AZ Court Kicks Alan Dershowitz Out of Court; Kari Lake & Mark Finchem Lose Their Big Gun Due To "Noncompliance"

UPDATE, 6/15, 11:30am: The court has now granted Alan Dershowitz's motion to participate in the case - for the plaintiffs - as an out of state attorney. 

UPDATE, 5/19, 8:40pm: Alan Dershowitz tells Arizona's Law that his termination will be fixed. "Just a technical glitch in my pro hac application. It’s being fixed." He did not respond to the request for an interview regarding his involvement in the Arizona cases.

In an unexpected twist, an Arizona court has kicked out Alan Dershowitz for non-compliance. Dershowitz is a well-known attorney and Harvard Law professor who has been representing Arizona election deniers Kari Lake and Mark Finchem in the federal court case against Secretary of State Katie Hobbs*.

The court did not give details of the "termination", other than to indicate: "(O)ut of state attorney Alan M Dershowitz terminated as counsel of record for noncompliance with admission procedures." 

There is no record on the docket that Dershowitz had filed the required application to be admitted as an out of state attorney (i.e. pro hac vice". However, co-counsel Kurt Olsen was granted pro hac vice status, and he does not have an application on the docket, either.

Andrew Parker, the lead attorney (who is admitted to practice in federal court in Arizona), filed an Amended Complaint in the case earlier this month. The case attempts to prohibit Arizona from using electronic voting machines in the upcoming election.**

Here are the District Court's requirements for an out of state attorney to be permitted to represent a client in Arizona's federal court: 

The pro hac vice application must be presented to the Clerk and must state under penalty of perjury (i) the attorney's principal office address and city and state of principal residence as well as current telephone number, facsimile number and electronic mailing address, if any, (ii) by what courts the attorney has been admitted to practice and the dates of admissions, (iii) that the attorney is in good standing and eligible to practice in those courts, (iv) that the attorney is not currently suspended, disbarred or subject to disciplinary proceedings in any court, and (v) if the attorney has concurrently or within the year preceding the current application made any other pro hac vice applications to this Court, the title and number of each action in which such application was made, the date of each application, and whether each application was granted. The pro hac vice application must also be accompanied by payment of a pro hac vice fee to the Clerk, U.S. District Court and a current, original certificate of good standing from a federal court.

We have reached out Dershowitz for an explanation and will update as necessary.

*He is also representing the Arizona Republican Party and Kelli Ward in related cases in state court. The pro hac vice rules differ between state and federal court, and he has not yet been kicked out of the state court cases.

**Full disclosure: I am a candidate for the Arizona Legislature, and my name will appear on the paper ballots fed into the voting machines.

Thursday, May 12, 2022

BREAKING: Big 9th Circuit Win For Environmentalists Fighting Rosemont Copper Mine In S. Arizona (READ Opinion)

The U.S. Forest Service cannot allow 2,400+ acres of southern Arizona wilderness to be buried under 1.9 billion tons of the Rosemont Copper mine's waste rock. That was the opinion today from a divided Ninth Circuit panel that delivered a big win to the coalition of environmental and Native American groups battling the southern Arizona mine.

The Center for Biological Diversity is leading the long-running litigation battle, along with the Sierra Club, Tohono O'odham Nation, Hopi Tribe and Pascua Yaqui Tribe.

Judge William Fletcher wrote the 38-page majority opinion, blasting the Forest Service's decision:

The Mining Law allows mining companies to occupy federal land on which valuable minerals have been found, as well as non-mineral federal land for mill sites, essentially free of charge. Rosemont wants to permanently occupy 2,447 acres of National Forest land with its waste rock, essentially free of charge, even though no valuable minerals have been found on that land and no mill sites have been established. On the current administrative record, the Service de facto amended the Multiple Use Act and the Mining Law to give Rosemont what it wants.

He finished by saying that Congress needs to revise the antiquated Mining Law. "But amendment of the Mining Law is a task for Congress, not for the Service, and certainly not for us."

Judge Danielle Forrest dissent, but concluded that it should have been remanded to determine whether the Forest Service complied with regulations that may have permitted the waste rock on that site.

The proposed mine in the Santa Rita Mountains and Coronado National Forest would be expected to produce 5 billion pounds of copper with the 3,000 foot deep (open) pit. The waste rock (tailings and waste rock) pile would be 2 1/2 times as large as the pit, and both would exist in perpetuity.

No word yet on whether the Forest Service or the proposed mine's Canadian owner (Hudbay Minerals) will appeal to the U.S. Supreme Court.

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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, May 10, 2022

BREAKING: U.S. District Court Judge denies Clarence Dixon's habeas corpus action, claiming that he is not competent to be executed (READ Order)

8:30pm: LATE NIGHT UPDATE: The 9th Circuit WILL NOT reconsider the panel's decision en banc. (No judge requested such a rehearing.)



Nothing showing on U.S. Supreme Court docket. (Does NOT mean nothing has been filed.) The Dixon case has been brought to the U.S. Supreme Court three times over the past 11 years.

5:30pm: The 9th Circuit panel of three judges REFUSED to stop tomorrow's execution. "As stated above, the ultimate question is “whether [Dixon] can rationally understand the reasons for his death sentence.” The state court’s conclusion that Dixon does have this understanding was not based upon an unreasonable determination of the facts."

3pm: Here is the video of the 9th Circuit oral argument this afternoon:


2pm: We are live-tweeting the oral arguments before the 9th Circuit. Tune in: https://twitter.com/arizonaslaw/status/1524132456869232641

BREAKING: U.S. District Court Judge denies Clarence Dixon's habeas corpus action, claiming that he is not competent to be executed.

Judge Diane Humetewa issued the 26 page ruling this morning, concluding that "In sum, the competency court did not improperly restrict its assessment of Dixon’s competency to his mere awareness that he was to be punished by death. In finding that Dixon did not prove his incompetence by a preponderance of the evidence, the court reasonably applied Panetti."

Execution set for tomorrow.

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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.

Monday, May 9, 2022

UPDATE: AZ Supreme Court Keeps Reps. Biggs, Gosar & State Rep. Finchem ON November Ballot (READ Decision)

Surprising noone, the Arizona Supreme Court unanimously allowed Reps. Andy Biggs, Paul Gosar, and State Rep. Mark Finchem to remain on the November ballot. Justice Clint Bolick - whose wife is a colleague of Finchem's in the Legislature - did not participate in the deliberations.

The Court decided that Arizona's election challenge statute does not explicitly permit lawsuits invoking the U.S. Constitution's 14th Amendment Disqualification Clause. That clause disqualifies those who participated in rebellion against the U.S.

The Order is below. If you would also like to review the parties' briefs on the matter, please click here.

In the first of what is expected to be four decisions today, the Arizona Supreme Court denied an expedited election challenge appeal by (former) legislative candidate Shawn Pearson. 

A panel of the Justices unanimously decided that Pearson did not prove that at least 26 signers of her petition were legitimately registered in her district when they signed, after the County Recorder had determined that they did not. Pearson had alleged that the County Recorder's list was not updated with recent moves, etc - the Court said that that was not enough to rehabilitate the signatures.

Pearson was challenged by a fellow Democrat running in her district (LD11), Naketa Ross.

Often, on fast-tracked cases like this, the Court will simply issue their ruling now and explain their reasoning later. However, this seemed to include their full legal opinion.

It is expected that the Court will also enter decisions on the other pending election appeals today - including the nationally-watched effort to bump Congressmen Andy Biggs and Paul Gosar - and State Rep. Mark Finchem - from the ballot due to their participation in planning the January 6 efforts to stop the Electoral College certification.

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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: Opponent Claims Scottsdale Resident Kevin Robinson Ineligible For Phoenix City Council; Expedited Appeal Filed With AZ Supreme Court

Phoenix City Council candidate Moses Sanchez is asking the Arizona Supreme Court to decide whether opponent Kevin Robinson resides in the di...