Saturday, June 5, 2021

BREAKING*: Arizona Supreme Court DISMISSES "Quo Warranto" Action Against Secy/State Katie Hobbs; "We the People" leader had demanded answers about fraud in elections, etc.

(Updated 6/8/21, 12pm)
BREAKING*: Arizona Supreme Court DISMISSES "Quo Warranto" Action Against 
@SecretaryHobbs; "We the People" leader had demanded answers about fraud in elections, etc.

As expected, the Arizona Supreme Court has quickly dismissed the Quo Warranto action filed by Daniel Wood this past Friday. Justice James Beene signed the Order today in his capacity as the "Duty Justice", although it is unlikely any of the other six Justices would have dissented.

The one-page dismissal notes that Wood gave no indication that he had asked Attorney General Mark Brnovich to bring the action and that the AG had refused. (In fact, as noted below, Wood indicated in his livestream that he had simply delivered a courtesy copy to Brnovich's office.) Therefore, he did not comply with the legal prerequisites to filing the action on his own.

Here is the dismissal Order. For more details about the lawsuit, see the original article below. 


6/5/21: "We the People" Group Leader Heads Back To AZ Supreme Court, While Accusing Justices - And Hobbs - Of Treason and Sedition For Not Acting On "Fraud" In November Elections

Hard on the heels of last month's hasty dismissal - and unmasking - a leader of the "We the People" group headed back to the Arizona Supreme Court yesterday to demand answers from Arizona Secretary of State Katie Hobbs about last November's elections. Later in the day, the Congressional candidate declared this to be "war" and accused the Supreme Court Justices of implicating themselves in the crimes of "maladministration, treason and sedition".

The Justices unanimously dismissed the then-anonymous petitioners' action to declare Arizona elections in 2018 and 2020 to be invalid and temporarily install them in 20 (city/county/state) government offices. The Justices then denied the group's request to stay anonymous.

Daniel Wood was not one of the petitioners in that case, but was publicly behind the filing. Yesterday, he filed a new quo warranto action with the state's Supreme Court, in an effort to force Hobbs to explain her authority to make several decisions surrounding the November elections.

Wood charges that Hobbs had a duty to ask the Legislature to decide who the Presidential electors should be, and that she should not have certified the election. He also re-raises the certifications of election machines and asks why Hobbs did not immediately appeal the October court decision extending the voter registration deadline.


Arizona law gives the Attorney General the sole authority* to file a quo warranto action challenging a public official if they are believed to be unlawfully holding or exercising their office. (The most recent time such an action was filed by the AG was in 2005 when (late) David Burnell Smith was removed from the State Legislature.)

In a Facebook livestream later Friday, Wood read his new action and vowed to supporters that he would keep fighting, declaring this to be "war". He stated that the "judge" (Justices) had implicated themselves in dismissing last month's action. "He (they) didn't even look at the evidence. That's something serious to take into consideration....Now, the (justices) have implicated (themselves) in a crime....Now (they) have evidence of fraud in our election process and (they) did not look at it."

In explaining why you do not give up after last month's dismissal, Wood makes the aim clear: "We're dealing with a lot of corruption, folks....It is our duty to overthrow such government that is outside of their...oath of office."

He demands answers from Hobbs within five days. It is likely that the Supreme Court will take some steps to deal with the case within that same time period.

* If AG refuses, then the person who is being usurped can ask the court for permission to file. Wood says he gave AG Brnovich a courtesy copy yesterday.

 "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, June 4, 2021

NEW: Tucson Cop Killer Loses Another Supreme Court Appeal, Death Sentence Still In Place (READ Opinion)

 For the third time, the Arizona Supreme Court today rejected an appeal from John Montenegro Cruz. Cruz has been on Arizona's death row since his 2005 sentencing for killing Tucson Police Officer Patrick Hardesty in 2003. 

Today's unanimous decision (below) rejects a claim focused on a 2016 U.S. Supreme Court decision (Lynch v Arizona) finding that Arizona had misapplied a previous case and deprived a capital defendant of his rights*. Writing for the Court, Justice Bill Montgomery noted that the earlier Supreme Court opinion (Simmons) HAD been known and considered in Hardesty's initial trial and appeal, and that the Lynch II opinion thus was not a significant change in the law. Therefore, it is not an appropriate basis for a new appeal.

"Thus, the law relied upon by the Supreme Court in Lynch II—Simmons—was clearly established at the time of Cruz’s trial, sentencing, and direct appeal, despite the misapplication of that law by Arizona courts. Consequently, Lynch II does not represent a significant change in the law for purposes of Rule 32.1(g)."

The opinion also notes that Cruz has not yet exhausted exercising his legal options. In addition to the likely appeal to the U.S. Supreme Court of today's decision, he currently has habeas proceedings in federal court.

 "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.



Thursday, June 3, 2021

UPDATE: Judge Finds MCSO Responses "Unpersuasive", Will Move Forward With Contempt Hearing In Long-Running Discriminatory Policing Suit

 A 2nd Maricopa County Sheriff will "absolutely" face contempt hearings in the long-running discriminatory policing case, U.S. District Court Judge G. Murray Snow declared this morning after a 80-minute hearing in the Melendres case.

Sheriff Paul Penzone will likely be on the hot seat in August, although Snow gave his attorney a week to confer with the other parties and see if they can agree on limiting the scope of the hearing. The Sheriff could concede the substantive part of the claims from the ACLU and the USDOJ about the department taking way too long to conduct internal investigations, and focus on the methodologies for improving the system. (Two to three months is required, but the MCSO is averaging 550 days.)

Judge Snow told counsel that he found the MCSO's defenses "unpersuasive", which helped prompt attorney Mary O'Grady's request for the week. One attorney opposed the meet and confer week, but Judge Snow rejected that.

Much of the hearing had focused on the discovery that the plaintiffs would be permitted to take of the MCSO's experts before the OSC hearing.

This case was filed in 2007 by the ACLU (as Melendrez v MCSO/Arpaio), focusing on Sheriff's deputies targeting Hispanic drivers. There has been a long-running court-appointed Monitor involved in overseeing County efforts to remedy such issues. 

The case drew the most national attention when former Sheriff Joe Arpaio was found in contempt of court for disregarding Court orders in the case. That resulted in former President Donald Trump offering Arpaio his first Presidential pardon in 2017.

The next few months should determine whether a second successive Sheriff is subject to a contempt finding. (Penzone defeated Arpaio in 2016 and was the only countywide Democrat to win (re)election last year.)

 "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.

Tuesday, June 1, 2021

NEW, LISTEN: AZ Law Conversation With Mike Bailey - U.S. Attorney for Arizona (2019-2021)

In today's BONUS installment of "AZ Law", we bring you our recent conversation with Mike Bailey, the most recent U.S. Attorney for the District of Arizona. Bailey served during the later part of the Trump Administration and resigned shortly after the Biden Administration took the reins. (That is SOP.)

We had a wide-ranging talk about his tenure in that important office, focusing on border-related enforcement issues, last year's election and other topics. We also touched on the current interim U.S. Attorney and Bailey's plans for the future.

"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 also 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.

 "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.

Tuesday, May 25, 2021

BREAKING: AZ Secretary of State Hobbs Filed Pre-Election Bar Charge Against AG Brnovich (READ Complaint)

In a just-discovered development, Arizona Secretary of State Katie Hobbs filed a 21-page Bar Charge/complaint against Attorney General Mark Brnovich last October. The battle between two of Arizona's top elected officials apparently took that hard turn due to disagreements on how the state should be represented in various election-related lawsuits, including the one currently in front of the U.S. Supreme Court about Arizona's so-called "ballot harvesting" prohibition and out of precinct voting laws.

The status of the Bar Complaint is not known at this point, but Arizona's Law has acquired a redacted copy of the complaint from the Secretary of State's Office (below).

Hobbs also provided us with the following statement: "Attorney General Brnovich has engaged in a pattern of behavior—directed at me and my office—that violates his ethical duties as an attorney. He frequently sought to substitute his judgement for my own and allowed his political preferences to interfere with his obligation to represent me as a client, in my pursuit of the best interests of Arizona voters. Because of this, last October I filed a complaint with the State Bar of Arizona. I asked the State Bar to treat the complaint confidentially and have not spoken of it publicly, in the hope that it would be resolved professionally and free of politics. Unfortunately, it appears that AG Brnovich isn’t asking forgiveness for his behavior—he’s asking our legislature to authorize it. The people of Arizona elected me to serve as our state’s Chief Election Officer. Despite partisan attacks and political power grabs, I’ll continue to get the job done on behalf of all Arizona voters.”

Katie Conner, a spokesperson in Brnovich's office, calls the complaint "politically-motivated" and focuses on it reaching to attorneys working in the office. "The Secretary of State’s decision to file politically-motivated bar complaints against AGO lawyers and target their professional standing and reputation has fundamentally altered the historical track record of the offices working together despite differing political affiliations. The assistant attorneys general have steadfastly adhered to their statutory and ethical obligations. Their livelihoods should not be threatened for political purposes."

It should be noted that Hobbs apparently filed the charges in October but did not release them to the public. Today's news came out from an unrelated source.

Phoenix attorney Dan Barr wrote that "An attorney has no greater ethical duty than the duty of loyalty to a client. If you disagree with a client, you don't do so publicly. The 21-page Bar complaint that @SecretaryHobbs filed last October 1 against @GeneralBrnovich lists multiple appalling ethical violations. For example, an ethical attorney does not make derogatory comments about his client. Nor does his office defend his client in the trial court, but then switch sides on appeal to his client's detriment. That's pretty basic, right? Nor do ethical attorneys attempt to assert legal positions that they know their client disagrees with, especially when they do get advanced permission from the client to do so."

After reviewing the letter, Chandler attorney Tom Ryan points out to Arizona's Law that "a lawyer's duty to the court is highest, even above the duty to the client....If these allegations are true and General Brnovich cannot refute them, this is serious enough to have his ticket yanked (i.e. suspended or disbarred)."

Arizona's Law will be seeking comment from the Attorney General's Office, and will be providing further updates as warranted.

 "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

NEW GUEST ANALYSIS/COMMENTARY: State Budget Bill Also Aims To Steal Power From Citizens Clean Elections Commission

Arizona's state budget bill was introduced yesterday, and it passed the House Appropriations Committee today on a 7-6 vote. Yesterday, we tweeted about the provision which temporarily takes power away from the Secretary of State and reassigns it to the Attorney General. This guest analysis and commentary from Tom Collins explains how it also grabs power from the voter-approved Citizens Clean Elections Commission. (Below the analysis is the current text of the budget bill.)

For those of you who don’t know, Clean Elections is Arizona’s bipartisan, voter approved, anti corruption and voter education law. 

There is really nothing like it in the country. 

We provide voter education, correctives for mis and disinformation, and access to information for voters in each corner of the state. We also provide financing for candidates who chose to set aside large private and pac donations and abide by strict spending rules, breaking the link between dollars and political favors. 

So it’s no surprise the new budget bills take aim at clean elections. 

*HB2891*

First, Section 15

This section provides that GRRC, The Governor’s Regulatory Review Council, can reach out strike Commission rules on its own recognizance, rather than requiring a petition or any notice to the public.  

In other words the Governor’s council could override Commission decisions at will. This is contrary to the Voter Protection Act. 

Under Prop. 306 (2018) and  Prop. 200 (1998) this is an amendment requiring a three-quarter vote as applied to the Clean Elections Act.  

I have yet to hear any lawyer, including the legislators own, suggest that expanding GRRC's authority over the Commission does not constitute an amendment. 

Notably, GRRC is entirely appointed by the Governor, while the CeC is appointed partly by the Governor and partly by the Secretary. So this provision is a double whammy. 

Second, Section 24 is written so broadly that it appears to seek to amend or supersede the Clean Elections Act.  It does this primarily by designating the Attorney General as " the. . . sole authority in all election litigation to direct the defense of election law."  This section expires with the current terms of the AG and the SOS. 

However,  the language making the AG the sole authority directly contradicts the Commission's express authority to intervene in cases where the constitutionality of the act is in question, among other things.  ARS 16-960. 

While the bill may be aimed at Secretary Hobbs, it seeks to inflict clear legal damage on the Clean Elections Act. It does so by attempting to preempt the role of defending clean elections that the voters granted to the Commission. 

Likewise, Subsection A. of Section 24, which alters the relationship between the AG and election officials, appears to usurp the Arizona Supreme Court's authority to determine the scope of conflicts for government law firms.  See Ariz. Supreme Court Rule 42, Ethical Rule 1.13, cmt. 9 (stating conflict rules governing organization apply to government organizations.). 

You might wonder why the AG needs to be relieved from these rules. One reason is they prevent him from advising clients one way then suing them. 

Here, the bill provides the AG will not advise the SOS, leaving CEC as the agency that must rely on attorneys who reserve the right to sue their clients. This is troubling for anyone concerned about the independence of the agencies responsible for the 2022 election. 

While these issues may not grab the headlines of some of the other provisions of these bills they are nevertheless serious legal problems that undermine the confidence of the public not only in elections, but in government ethics and transparency. 

Tom Collins is the Executive Director of Arizona Citizens Clean Elections Commission. 

Arizona's Law/Arizona's Politics occasionally runs guest commentaries and analysis. If you would like to submit a column, please email to Paul . Weich . AZlaw @ gmail.com (without spaces).

"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, May 21, 2021

BREAKING UPDATE: Court Orders Psychological Exam For Key Jan. 6 Participant Jacob Chansley (aka "QAnon Shaman")

(Clarification: Chansley's attorney asked for the psychological examination. The Court docketed the Minute Entry that it granted the speaking motion after posting the Order. The Order did not reference the speaking motion.)

Jacob Chansley, the so-called "QAnon Shaman" who was one of the most recognizable participants in the January 6 insurrection at the U.S. Capitol, will undergo a psychological exam. That was District Court Judge Royce Lamberth's Order this afternoon, granting the Defendant's attorney's speaking request.

The Mesa man has been in federal custody since turning himself in shortly after he became a key figure on January 6. The Court's Order will move him from the facility in Virginia to another on for up to 30 days to perform the competency examination. The exam is to determine whether "he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense."

Yesterday, the USDOJ filed with the Court the list of materials that they have turned over to Chansley's attorney. There were several new disclosures just this past week, giving some insight into the ongoing nature of the investigation into Chansley and others who were arrested after Jan. 6. (The list is below.)

Here is today's Order:

 

"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.

THIS WEEK IN ELECTION AUDIT LEGAL NEWS: Thursday Hearing Set On Demand For State Senate/Cyber Ninja Contracts and Records

The election audit world has not stopped simply because the Veterans Memorial Coliseum is hosting high school graduations.

1) Superior Court Judge Mike Kemp has set a Thursday hearing on American Oversight's public records request lawsuit. The group is demanding that State Senate President Karen Fann be required to turn over all requested public records surrounding the Senate's/Cyber Ninjas' audit/recount of the November 2020 election in Maricopa County.

The return hearing will be at 10am on May 27.

Here is the Complaint that was filed earlier this week, including the records requests and the correspondence back and forth with the attorneys for the State Senate.

 

2) Jacob Chansley, the so-called "QAnon Shaman" who was one of the most recognizable participants in the January 6 insurrection at the U.S. Capitol, will undergo a psychological exam. That was District Court Judge Royce Lamberth's surprise sua sponte (i.e. on the court's own consideration) Order this afternoon. Additionally, the government released a list of materials that it has turned over to Chansley's counsel, including several supplemental disclosures this week. More details here.

3) Embattled Kraken attorney Sidney Powell is not listed as a speaker at any of the Arizona events this coming week focusing on Maricopa County's audit, but her fundraising vehicle - Defending the Republic - is under intense scrutiny in Florida. According to a new report by investigative reporter Grant Stern today, Florida authorities have been investigating whether Powell committed a felony for fundraising - for her suits in Arizona and elsewhere - without registering or disclosing her activities to charity regulators. Here is that report.

 "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.

Thursday, May 20, 2021

BREAKING: Arizona Supreme Court Says Group That Tried To Invalidate 2018-2020 Elections CANNOT Remain Anonymous (READ: Order, Original Affidavits)

An anonymous group tried to invalidate Arizona's 2018-2020 elections and take temporary control of many of the elected offices. The Arizona Supreme Court quickly rejected that. And today the Court ruled that the individuals did not have the right to remain anonymous. They released the group's identities today.

The Court did keep the individuals' addresses, telephone numbers and dates of birth redacted, noting that they did not need to provide that information in the first place.

Here is the group of 20 would be replacement officials and who they had proposed to temporarily sit in for:




  "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.

Monday, May 17, 2021

TODAY IN ELECTION AUDIT LEGAL NEWS: "Don't Dox Us" - Anonymous Group Who Tried To Overturn Arizona Elections Pleads With Arizona Supreme Court

 As we prepare for Maricopa County and the State Senate Republicans to hold competing meetings today and tomorrow, we have these developments to ponder:

1) The anonymous band of 20 petitioners who unsuccessfully asked the Arizona Supreme Court to overturn Arizona's elections between 2018 and 2020 - and temporarily install them in the vacated elected offices - today asked the Justices to not engage in the "dangerous practice" of "doxing" them by unsealing their identities.


The entire Motion is posted below. The Supreme Court had immediately dismissed the Petition to find that 2018, 2019 (Tucson) and 2020 elections were void because voting machines licenses had expired and proper recertification procedures had not been followed. Petitioners had suggested that they fill the elected offices until a new election could be held.

There is no word yet on when or how the Supreme Court will rule on this filing. However, if inclined to grant the motion to keep the identities sealed, the Court would likely invite a response from Defendant Governor Doug Ducey and the other parties.

 "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*: Arizona Supreme Court DISMISSES "Quo Warranto" Action Against Secy/State Katie Hobbs; "We the People" leader had demanded answers about fraud in elections, etc.

(Updated 6/8/21, 12pm) BREAKING*: Arizona Supreme Court DISMISSES "Quo Warranto" Action Against  @SecretaryHobbs; "We the Peo...