Thursday, June 20, 2019

BREAKING: Appeal Filed On Non-Decision To Force Earlier Special Election For Arizona's Senate Seat

An appeal was filed tonight in the constitutional challenge to Arizona Governor Doug Ducey's ability to control the late Senator John McCain's seat until November 2020. There has not been a decision by Judge Diane Humetewa, but plaintiffs call it an "effective denial" of their challenge.

Oral arguments were held on April 12, and was taken under advisement at that time. Today's appeal notice follows an unusual round of letters and responses filed last week, as the plaintiffs have grown impatient.

AZ Law and Arizona's Politics have previously reported on the constitutional challenge to the Arizona vacancy law. At that point, Sen. Jon Kyl was serving at the Governor's request. Kyl then resigned, permitting Ducey to appoint Martha McSally to the seat until a special election would be held in 2020 to fill the last two years. Sen. McCain passed away on August 25, 2018.

The Arizona plaintiffs challenge the constitutionality of the vacancy law, and say the election must be held as quickly as possible.

This round of out of the ordinary filings began last week, when Judge Humetewa entered an order (below) noting that she had received a letter from plaintiffs' counsel that she would not consider.
Plaintiffs filed a Motion for a Status Conference later that day as a way of further nudging the judge, and Governor Ducey's attorneys promptly opposed it. The judge has not taken any action on the motion or the underlying issue in the subsequent week. That apparently prompted today's appeal of an "effective denial".

Plaintiffs cite a 9th Circuit opinion from 1992 that involved a well-known Arizona case - the Sierra Club's battle against the University of Arizona regarding the nearly-extinct Mt. Graham Red Squirrel. In that case, the appellate judges did express "dismay" over the trial judge's failure to schedule a hearing on a motion for an injunction.

(This article written by Phoenix attorney Paul Weich.)

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