Thursday, January 28, 2021

UPDATE: Arizona's "QAnon Shaman" Arraigned Today On Jan. 6 Insurrection Charges, Will Remain In Custody Pending March 5 Status Conference

Update, 1/29/21, 2:00pm: Chansley was arraigned today, and will remain behind bars. Next status conference scheduled for March 5. (Speedy Trial clock tolled 'til then.)

Original Article, 1/28/21, 2:30pm: "Arizona's "QAnon Shaman" Faces Arraignment Tomorrow On Jan. 6 Insurrection Charges; READ Detention Order"

 Arizona's self-described "QAnon Shaman" will be arraigned in federal court tomorrow on the six charges for his activities at the January 6 violent takeover of the U.S. Capitol.

Saul Loeb (AFP)

Jacob Chansley (aka Jake Angeli) will appear at 2:30 (EST) for his arraignment, per a minute entry issued this afternoon. Chansley has been in custody since his arrest on January 9.

As reported in the Arizona Republic, Chansley - in his distinctive outfit and carrying a flag-strewn spear - left a threatening note for then Vice President Mike Pence. According to the detention order (below), he had also advocated on Twitter that "traitors within the United States government" should be identified and hanged.

Prosecutors had also convinced the U.S. Magistrate in Arizona to keep him in custody because he "had the motivations and capabilities to participate in similar unlawful acts." (aka lack of remorse).

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcast.


Wednesday, January 20, 2021

NOT SO FAST: Maricopa County Does NOT Have Agreement To Turn Over Election Materials To Senate President Fann, GOP

"There is no agreement finalized. Period." Maricopa County Supervisor Steve Gallardo told Arizona's Law this afternoon that the statement earlier today from State Senate President Karen Fann declaring victory in the subpoena battle over Maricopa County elections info/equipment/materials/etc is premature.

Oral argument in the court case filed last month by the County Board of Supervisors pushing to declare the original subpoenas unlawful was scheduled for this morning, but was vacated at the last minute by Fann's attorneys. The Supervisors were also set to meet in Executive Session this morning, but that was also vacated. Gallardo indicates that the latter might be rescheduled for Friday.

He tells Arizona's Law that "we agreed to come together and talk about how an audit might be done", but that a straight turnover of all of the requested items to the Legislature was NOT a viable option. He suggested that an independent third party or one appointed by the Court would be more likely to receive approval from a majority of the five-member Board of Supervisors.

Indeed, at 3:50pm this afternoon, the County released a statement saying that negotiations continue. Here is the complete statement, credited to new Board Chair Jack Sellers:

The Board of Supervisors through its legal team continues to negotiate in good faith with the representatives of the Arizona State Senate President.  This Board is being updated as negotiations continue on the terms of a potential agreement.  The parties are working toward an agreement which delivers some of the requested documents and information while protecting voter privacy and the integrity of election equipment.  We look forward to reaching consensus on these matters.

This Board has always been consistent in supporting a forensic audit and will continue to take steps toward that end. Members are actively working with stakeholders, including the Recorder, and hope to have an audit completed soon.

Earlier today, Fann released a statement (below) saying that "not only has the Board agreed to turn over all the relevant information we sought in our subpoenas so that we may perform an audit, but they also acknowledge that the Legislature is a sovereign power of the state and that they county is a political subdivision, and as such, the Legislature has the constitutional and statutory authority to issue subpoenas."

At about the same time, Sellers did release a letter agreeing to the latter part of that statement, but not about a turnover of the ballots, machinery, etc.


This is a developing story. Please check back for more information.

"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, January 14, 2021

BREAKING: Rep. Biggs' Defamation Threat Against Former Opponent BOMBED By Greene's Counsel (READ Pithy Lawyer Letter)

 When faced with an unthreatening letter from an attorney claiming you defamed a Congressman at the heart of last Wednesday's mob violence at the U.S. Capitol, a pithy retort referencing the downfall of the Third Reich may be in order.


Counsel for Arizona Rep. Andy Biggs (R-CD "the fighting Fifth") sent Democrat Joan Greene a letter referencing several of her tweets and posts after the Electoral College votes were done being counted by Congress.

When Greene noted the intimidation attempt on Twitter Monday, Chandler attorney Tom Ryan jumped at the opportunity to respond to a colleague he knows well (Kory Langhofer). He did not mince words.

"I could set forth a point-by-point refutation of your letter, but I see it as not helpful. Instead, I provide you with one of my favorite stories of WWII. On December 22, 1944, U.S. Brig. Gen. Anthony C. McCauliffe and the troops of the 101st Airborne Div. were near Bastogne, France*. A German Panzer division believed it had surrounded the Americans. The Germans sent a letter to Gen. McCauliffe demanding the Americans surrender. Gen. McCauliffe sent back a simple response:

To the German Commander,
N U T S !
The American Commander

I cannot improve upon Gen. McCauliffe's response and provide the same to you." 

No, there will not be a defamation suit.

Tom Ryan Ltr to Kory Langhofer by arizonaspolitics on Scribd

*Ryan tells Arizona's Politics he has one regret about the letter. "Bastogne is in Belgium, not France."

Disclosure: I have provided legal representation to Greene.

"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: Judge Refuses To Issue Injunction Stopping "Invest In Ed" Surcharge From Going Into Effect, Knocks Down Major Argument Against It (READ Opinion)

In an interim victory for the proponents of Prop. 208 ("Invest In Ed"), Superior Court Judge John Hannah refused to slap an expedited preliminary injunction against the income tax surcharge that will help fund Arizona schools.

Republican leaders of the both the State House and Senate have teamed up with the Arizona Free Enterprise Club and other opponents of the measure passed by voters in November to sue the state to overturn it. They had asked for an accelerated ruling on their preliminary injunction request because the Legislature was about to begin a new session and would have to consider a new budget.

Judge Hannah knocked that down, while saying "the Court holds that increased expenditure of time and effort that an initiative measure may cause at the Legislature cannot be a cognizable injury that weighs in favor of a preliminary injunction."

The Court will nevertheless do its best to issue the balance of the ruling Motion for Temporary Restraining Order (With Notice) and Preliminary Injunctive Relief shortly. But it will do so because of the priority afforded motions for preliminary injunctions under the Rules of Civil Procedure, and as a courtesy to the parties, not as an effort to adhere to a schedule based on the business of the legislature.

Hannah also questioned whether the lawmakers have standing to make that argument. And, more importantly, he bluntly disposed of one of plaintiffs' key arguments. Opponents of the measure claim that the initiative violated the Arizona Constitution by prohibiting the lawmakers from reducing appropriations to the state's public schools in response to the new dedicated revenue stream. (aka the "no supplant" provision)

"Simply put, the "no supplant" clause is directed at the school districts and charter schools that receive the Proposition 208 funds. It does not limit or affect what the legislature does with general fund revenues," said Hannah.

Here is the Court's interim ruling:

Interim ruling on Invest In Ed by arizonaspolitics on Scribd

"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, January 12, 2021

NEW: "There Must Be Consequences For AZGOP's Bad Faith" - AZ Secretary of State Hobbs Uses Jan. 6 Failed Insurrection To Justify Sanctions Vs. Party (READ Reply)

 Attorneys for Arizona Secretary of State Katie Hobbs has renewed its call for sanctions against the AZGOP for filing an "objectively groundless" lawsuit. The blistering Reply to the AZGOP's warning to  Judge Randall Warner uses a January 6 tweet from Chairwoman Kelli Ward as the ultimate example that the party's "obvious motives were to delay final election results and sow doubt about the integrity of Arizona's elections system." 

Superior Court Judge Warner now has the issue of whether or not to hold the AZGOP responsible for the more than $18,000 in attorneys' fees incurred by Hobbs (D) in defending the action. The case was about forcing Maricopa County to audit 2% of precincts rather than 2% of vote centers, which the court dismissed because Arizona's Election Procedures Manual has the force of law and explicitly provides for such an audit.

The Reply (below) notes that AZGOP attorney Jack Wilenchik "chides the Court for 'even contemplat[ing] sanctions' in this case because in ARP's view, its arguments are 'debatable'. Not so." Arguing for the Secretary of State, Kristen Yost points out that the "plain text" of the hand count audit statute "debunks" the party's claim, and that the GOP participated in previous similar audits and could have and should have challenged the procedure long before the November election. Finally, she points out that AZGOP should have known the audit had already been completed before the lawsuit was filed.

Wilenchik's Response had emphasized that he had only had a few hours to research the lawsuit before filing it (because of tight election case deadlines). Hobbs' Reply bluntly answered "That is no excuse. Election litigation is no doubt fast-paced, but litigants and their counsel still must comply with their ethical obligations, the Rules of Civil Procedure, and A.R.S. §12-349(A)."

A different lawsuit filed by Wilenchik on behalf of Chairwoman Kelli Ward is currently on appeal at the U.S. Supreme 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.


Monday, January 11, 2021

UPDATE (Really): U.S. Supreme Court To Conference On Accepting AZGOP's Election Contest Appeal Feb. 19

UPDATE, 1/27/21, 3:00pm: Supreme Court  Justices To Conference On Accepting AZGOP's Election Contest Appeal Feb. 19

The U.S. Supreme Court Justices will likely decide on February 19 whether or not they will hear one of the Arizona Republican Party's appeals of the November Presidential election in Arizona. (Although their order accepting it or denying it will probably be made public the following week.)

The appeal the highest court will be considering is the one filed by AZGOP Chairwoman Kelli Ward contesting the Arizona results, which favored now-President Joe Biden over then-President Donald Trump. In the state courts, the case focused on the duplicated ballots in the Southeast Valley and signature envelopes on mailed-in ballots.

However, in the appeal to the Supreme Court, the AZGOP shifted its focus to the constitutionality of the Electoral Count Act - specifically the safe harbor deadline.

The Justices declined to expedite the appeal, and asked defendants to respond to the petition by January 14. None of the previous contestants - Secretary of State Katie Hobbs, Maricopa County, and the Democrats - bothered to file a brief opposing the case.

The Supreme Court has summarily declined to accept several of the other election-related challenges filed by the AZGOP and others trying to support Trump. This case may very well join that list.

The other AZGOP appeal in front of the Supreme Court is currently in wait and see mode, as well. That "Kraken" case has a deadline for defendants to respond set for tomorrow, before the Justices decide whether to accept that appeal. (The U.S. Supreme Court has discretion on which appeals to accept, and only take a tiny fraction of those presented to it each year.)

(For more details, please read our previous article, below.)

ORIGINAL ARTICLE, 1/11/21: BREAKING (Really): U.S. Supreme Court REJECTS Efforts to Expedite Remaining AZGOP/Ward's Election Appeals

The U.S. Supreme Court today rejected Motions to Expedite the other two appeals that have been filed by the Arizona GOP and Chairwoman Kelli Ward. Responses will be due later this week and later this month.

Last week, the Justices flatly rejected the AZGOP's effort (along with Texas Rep. Louie Gohmert) to get the highest court in the land to tell Vice President Mike Pence that he was not bound by the Electoral Count Act - in place since 1877 - because it was unconstitutional. As Arizona's Law detailed, Ward mislead supporters into thinking that the appeal had been filed before the January 6 counting of the Electoral College votes - thus making it appear that the Supreme Court's eventual rejection was unreasonable. (It was filed on January 6.)

Today's rejections come in the Ward v. Jackson election contest appeal that had been dismissed by Maricopa County Superior Court Judge Randall Warner. That dismissal was affirmed by the Arizona Supreme Court, and the appeal to the U.S. Supreme Court had aimed to find a different portion of the Electoral Count Act unconstitutional (i.e. the safe harbor date). 

AZGOP attorney Jack Wilenchik had filed the Motion to Expedite on December 11, along with the appeal, but it was not until one month later that the Supreme Court denied the motion. The defendants (Biden electors) and the intervenors (Secretary of State Hobbs, Maricopa County Supervisors and Recorder) have until Thursday to respond to the appeal. (aka petition for writ of certiorari).

Today's second swat-down came in the so-called Arizona Kraken case. The AZGOP's attorneys - led by

Sidney Powell and Arizona attorney Alex Kolodin - lost the case in U.S. District Court and are trying to pair it with similar cases from Michigan, Georgia and Wisconsin. They are asking the Supreme Court Justices to order U.S. District Court Judge Diane Humetewa to un-do her dismissal and to force Arizona to "de-certify" the November 3 election results in favor of Joe Biden over Donald Trump.

The Motion to Expedite was late filed on December 18. Defendants have until January 28 to respond to the substance. (The AZGOP also has a concurrent appeal of this case before the 9th Circuit; however, they have not moved to expedite it and briefing will last into May.)

The Justices rejected similar motions to accelerate consideration in several other election-related appeals.

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, January 7, 2021

BREAKING: AZGOP Misled Supporters About Supreme Court Appeal Before Yesterday's Riots; Justices Reject Late Appeal (READ)

The U.S. Supreme Court Justices today REJECTED the Arizona GOP's belated appeal to try to free Vice President Mike Pence to reject Arizona's Electoral College votes. The terse rejection (at right) also revealed how the party and Chairwoman Kelli Ward have been misleading supporters (and, the nation) about their legal efforts.

The AZGOP case, filed along with Texas Rep. Louie Gohmert, was dismissed by a Trump-nominated District Court Judge and affirmed Saturday night by friendly judges on the 5th Circuit - after an 8-hour appeal.

On Sunday, AZGOP and Ward started praising Supreme Court Justice Samuel Alito, the Justice assigned to emergencies coming from the 5th Circuit. And, on Monday, Ward (and the party) announced they were sending "an emergency application for a preliminary injunction" in advance of Wednesday's counting of the Electoral College votes by Pence and Congress.

Neither part of that was entirely correct. It turned out Sidney Powell and their other attorneys did not file until yesterday (filing is below) AND that they were primarily seeking an accelerated schedule to *ask* the highest Court in the land to consider the lack of standing decision. (aka "Petition for Writ of Certiorari"). "Given the exigency of resolving the 2020 presidential election before January 20, 2021, Applicants propose an expedited schedule for the filing and resolution of a petition for a writ of certiorari. Alternatively, Applicants respectfully submit that the relief requested in this application could resolve this matter."*

Zach Henry, Communications Director for the AZGOP, tells Arizona's Law that attorney Sidney Powell and Gohmert had told them (after the video) of a "temporary request for a hold on the filing" but that it was expected to be filed later on Monday. Henry had no explanation on why it did not end up getting filed before Deadline Day.

Ward did not make any further announcements about the critical delay, leaving party members and supporters with the impression that Justice Alito had the filing under consideration up until today's rejection was released. "It was a fluid situation," was Henry's comment.

Henry declined to comment on the other two AZGOP appeals which are currently stalled in front of the U.S. Supreme Court, in addition to the languishing appeal at the 9th Circuit. (Until today, Ward may well have been holding a record for most active appeals by a non-incarcerated individual simultaneously in front of the Supreme Court.)

The other two appeals are (1) the election contest filed by Ward in state court, and (2) the Kraken case denied in Arizona's federal District Court. (The latter case also is under appeal to the 9th Circuit.) Both of those requested expedited or emergency consideration, and the latter suffered from filing issues similar to the Pence case.

Ward and the Arizona GOP have recently become national Twitter darlings among Trump supporters, boasting about the number of new followers they are gaining. 

*Of course, they may have framed it this way because they realized that they had neglected to ask the lower courts for injunctive relief, a key boo-boo.

AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcast.

Wednesday, January 6, 2021

UPDATES: Electoral College Counting Day; ARIZONA REPS. Will Be Debating Both Sides Of Arizona's Presidential Election

Arizona will be the first of the five swing states that Republicans intend to challenge in today's counting of the Electoral College votes, and Arizona's Politics will be providing coverage.

Congress will be convening at 11am, Arizona Time. We do not know how much initial skirmishing over rules and procedures there will be, but it is very likely that Congress will proceed opening the states' electoral votes and announcing them in alphabetical order. That is one of the procedures typically followed.

Thus, we are fairly certain that once the process of announcing begins, the Arizona challenge will

happen pretty quickly. Arizona's Politics has spoken with several of the Congressional offices, and a relatively clear picture is emerging. Several members of our House delegation will be taking part in the 2-hour debate that will happen concurrently in the House and Senate chambers.

So far, we have confirmations that Rep. Andy Biggs (R-CD5) will be leading the challenge to the bi-partisan certification of Arizona's Presidential election of the 11 Biden/Harris electors. He will have up to 5 minutes to speak, although he may yield a portion of that. It is also likely that one or more of the rest of Arizona's GOP delegation (Gosar, Schweikert, Lesko) will speak.

On the Democratic side, there will be a group of Representatives from around the country leading the defense of Arizona's - and the other swing states that Biden won - election process. However, it is fairly certain that Arizona Reps. Ruben Gallego (D-CD7) and Greg Stanton (D-CD9) will be part of the presentation. Rep. Raul Grijalva (D-CD3) is another possible defender. Arizona's Politics has not heard whether the rest of Arizona's Democratic delegation (O'Halloran, Kirkpatrick) will participate in the two hour debate.

Similarly, the plans over on the Senate side are still unclear. Arizona has two Democratic Senators, Kyrsten Sinema and Mark Kelly.

It is also expected that many of the elected officials who do not get a chance to speak will submit their written remarks for the record.

It is highly unlikely that either Congressional body - either the Democratic-controlled House or the (still) Republican-controlled Senate - will vote to approve the objections to Arizona's election. And, given that none of the courts, all the way up to the U.S. Supreme Court, have approved of the AZGOP-led requests to find the Electoral Count Act unconstitutional and grant Vice President Mike Pence the power to single-handedly decline to accept Arizona's certification of the 11 Biden/Harris electors, it is likely that Pence will grudgingly announce the acceptance of Arizona's election.

UPDATES:


Saturday, January 2, 2021

BREAKING: U.S. Supreme Court REJECTS AZGOP/Gohmert Appeal

UPDATE, 1/7/21 at 12:20pm: The U.S. Supreme Court has declined to hear the AZGOP/Gohmert appeal. Apparently, Justice Samuel Alito - who is the designated Justice for the 5th Circuit - did not wish to solely make the decision to not reverse the lower courts' dismissal for lack of standing. He presented it to his colleagues, who denied it as a full Court. 


(h/t LorenzoLaw)


UPDATE, 8:30pm: NOW, THAT'S WHAT I CALL EXPEDITED, Part 73:


5th Circuit AGREED with @AZGOP/@replouiegohmert that their appeal should be expedited. In less than 8 hours, the 5th Circuit judges AFFIRMED the dismissal of the case against the Electoral Count Act.

BTW, the three-judge panel of the 5th Circuit? Two REAGAN nominees and one TRUMP nominee. (Affirming the TRUMP-nominated District Court Judge.)
Original Article: AZGOP/Gohmert Electoral College Appeal Now With the 5th Circuit

(THANKS again to @Lorenzo1159 Law for all of the great Twitter-based coverage these past couple of days! You can check out his timeline over the past few days. And, he's well worth a "follow"!)

" 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...