Wednesday, April 28, 2021

TODAY In Election Audit Legal News

 Stay tuned for court filings, and coverage of today's Superior Court arguments.

ADGRG


GGA

Tuesday, April 27, 2021

NEW: Shooter's World Loses Appeal, Is An "Amusement" (For Tax Purposes); It's Not Just In the Name (READ Opinion)

 The well-known Phoenix shooting range known as "Shooter's World" should be taxed as "an amusement", the Arizona Court of Appeals ruled today. The unanimous decision upholds the Tax Court's ruling on the state's claim for more than $500,000 in taxes/interest/penalties.

The dispute about the indoor shooting range (and, more) focused largely on whether it is subject to the same tax as a longggggg* list of amusement businesses. Shooter's World tried to use a previous Arizona Supreme Court finding that "Wilderness World" was NOT subject to the amusement tax, However, Judge Paul McMurdie writing for the majority found that the higher court was not delineating a test to judge all businesses by, and that the river-rafting excursion company was a different kettle of fish. 

To be sure, Shooter’s World takes steps to ensure customer safety. Still, these safety precautions are a far cry from the guidance provided on Wilderness World’s 12-day, several-hundred-mile river expeditions. They are much more comparable to the supervision and safety measures present at any amusement park that operates rollercoasters or go-karts.

The Arizona Department of Revenue was represented by the Attorney General's Office. No word yet on whether Shooter's World will take a shot at bringing the case to the Arizona 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.

*A.R.S. § 42-5073: "theaters, movies, operas, shows of any type or nature, exhibitions, concerts, carnivals, circuses, amusement parks, menageries, fairs, races, contests, games, billiard or pool parlors, bowling alleys, public dances, dance halls, boxing and wrestling matches, skating rinks, tennis courts, except as provided in subsection B of this section, video games, pinball machines or sports events or any other business charging admission or user fees for exhibition, amusement or entertainment, including the operation or sponsorship of events by a tourism and sports authority...."

BREAKING: "Today In Election Audit Legal News", 11am Hearing In Superior Court

1) At 11am this morning, the new judge on the case (Daniel Martin) will be holding a get-up-to-speed return hearing on the Arizona Democratic Party's/Supervisor Steve Gallardo's lawsuit against the State Senate and Cyber Ninjas conducting the recount/audit.

I will be joined by Chandler attorney Tom Ryan for coverage of the hearing, on Twitter. You can click on the tweet below to be taken to that page, then you can "refresh" to read additional tweets.

2) Our NUTSHELL of this morning's hearing:

a. There is no court order currently hanging over the audit. (Which doesn't mean they should go haywire, natch.)

b. Hearing tomorrow at 10:30 on whether to put an order back in place.

c. No change in media/public access. First Amdmt Coalition is now in case, but for limited purpose of fighting Cyber Ninjas efforts to file their procedures under seal.

d. @SecretaryHobbs  also in, Staci Burks out. (Libertarians want to file amicus brief.)

3) Jen Fifield of the Arizona Republic has announced that members of the media have reached an agreement with the State Senate/Cyber Ninjas to allow pool media coverage of the audit/recount. Meanwhile, Ken Bennett (the Senate's liaison to the Cyber Ninjas) will hold a news conference at 5pm.

4) Some ANALYSIS of today's hearing and where we're at:

"I don’t see either Judge Martin or the AZ Supreme Court shutting down the Senate/Ninjas audit/recount at this point.

The unfortunate origin of this legal dispute is that this audit is extra-legal – we never anticipated this kind of post-election game.

So, the State Senate – the body that passes the election integrity laws we already have in place – did not lay down any procedures ----let alone laws ---- to be followed by the Cyber Ninjas.

That problem was exacerbated because Maricopa County, the Secretary of State and the AZ Democratic Party – kept waiting for procedures to become public. So they didn’t file this until the last minute. (Same with the media.)

Now, the judges need to carefully step through this minefield." --PW



ASDGEAHR

(Check back frequently for updates and new court filings. For previous updates and to read earlier court filings, please go here and here and here. For our article about how judges are chosen for this - and, other - cases, go 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.

Monday, April 26, 2021

BREAKING: "Today In Election Audit Legal News"; NEW JUDGE Daniel Martin Sets Status Hearing For Tuesday

 Of course, the legal developments in the election audit world did not take the weekend off, and are starting off early on Monday. Let's run them down:

1) The Court has corrected itself. Tomorrow's hearing in front of Judge Martin will be a "return hearing" - more like a status, where-do-we-go-from-here type, hearing. It was previously announced that it would be an "evidentiary hearing".

1) Judge Daniel Martin, assigned to this case earlier today, has set an 11am evidentiary hearing tomorrow (Tuesday), according to KPNX's Brahm Resnik. The Court has now confirmed this. 

FYI, an "evidentiary hearing" is more substantive than a "status hearing". It would not have been surprising for a new judge on the case to have set the latter.

1) As of 9:50: We now have confirmation that Judge Daniel Martin now has the case in Superior Court, and that the 11am hearing is vacated. It is expected that he will set a hearing for either later today or tomorrow to set a new schedule.

1) We are waiting to see if the new SUPERIOR Court judge keeps the 11am hearing that was set by Judge Coury, or needs more time to review the filings and sets a new time and/or date. Heck, we have not yet - as of 9:30am - received word of who the new judge will be.

2) The new judge was needed because Judge Coury suddenly recused himself Sunday night. A former extern of his appeared in the Sunday afternoon filing, which Coury declared to require his recusal. Chris Viskovic is a new associate attorney for Alexander Kolodin, representing Cyber Ninjas. He appeared on Friday at the Supreme Court's hearing, but not officially in the Superior Court case until yesterday.

3) The Senate defendants moved to dismiss the case yesterday. (Pleading below.) The other parties also filed their memoranda, with the Cyber Ninjas asking (again) that everything be filed under seal. (Supreme Court Justice Clint Bolick rejected that request on Friday.)

4) Staci Burk has moved to intervene in this case. Ms. Burk filed her own unsuccessful election challenge last year, and the U.S. Supreme Court is expected to deny her Petition for review next week.

(Check back throughout the day for more updates.)



"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, April 23, 2021

READ: Supreme Court Justice Bolick's Order Re: Election Audit Special Action

 Here are the legal updates on the State Senate's/Cyber Ninjas' election audit/recount. For more details, please visit our previous article and our sidebar about the judge assignment process.

Thursday afternoon, the Arizona Democratic Party and County Supervisor Steve Gallardo sued to stop the audit from taking place.

Friday morning, Superior Court Judge Christopher Coury held a hearing on the request for a TRO (Temporary Restraining Order) to stop the audit. He ordered a "pause" over the weekend (until noon, Monday) IF the Democrats posted a $1M bond to cover damages if their case was thrown out. He ALSO ordered that the Senate/Ninjas produce their policies/procedures for conducting the audit and that they follow all state laws.

The State Senate filed an Emergency Special Action with the Arizona Supreme Court to overturn Judge Coury's "pause", among other things. The Democrats decided not to post the bond, so the "pause" was off the table and the audit could continue on Saturday and Monday morning.

This afternoon, Supreme Court Justice Clint Bolick heard arguments on the Special Action. He took no action, praised Judge Coury's handling of the morning hearing, and ordered an updated pleading from the State Senate on Tuesday, responses on Wednesday, and a reply on Thursday. Either Justice Bolick - who is the "duty Justice" for the next week - or the entire Supreme Court will take it from there.

Here are the Special Action Petition, the Motion for Emergency Stay (mooted), and Justice Bolick'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.

Thursday, April 22, 2021

SIDEBAR: How Is a Judge Assigned A Case In Maricopa County Superior Court, and What Can the Parties Do?

UPDATE, 4/23 10am: The Maricopa County Superior Court has clarified to Arizona's Law that this case was indeed assigned to Judge Coury by an unbiased computer system. Presiding Judge Pamela Gates then approved the assignment and Judge Coury was then notified. 

The full explanation from the Superior Court Public Information Officer Vincent Funari is below**. 

The random assignment of Judge Christopher Coury to the case filed today by the Arizona Democratic Party and County Supervisor Steve Gallardo against those in the State Senate in charge of the election audit has prompted questions from several readers.

Specifically, how was the judge assigned, and what can the parties do if they object to the assigned judge. Yes, there are rules for that.

First, Rule 3.1.b of the Maricopa County Superior Court Local Rules sets forth how the judge is assigned. There are 22 judges currently on the Civil Bench, and either the Clerk (Jeff Fine), the Court Administrator (Keith Kaplan) or the Presiding Judge (Pamela Gates) makes the decision. 

It is NOT a fully randomized selection. The rule states the assignment "may be done by automated means or by a formula approved by the Supreme Court, and shall be done in a random manner so as to be unpredictable and provide an equal distribution of cases among the trial divisions."

In this case, the Superior Court tells Arizona's Law that the computer randomly assigned the case to Judge Coury, and that assignment was approved by Civil Presiding Judge Pamela Gates.**

Now, even though it is not fully randomized, there is no incentive for an official to make a politically-motivated judge assignment. (The Clerk is a partisan, elected office.) That is because state court rules permit a party to strike a judge "as a matter of right". (UPDATE: The "as a matter of right" rule - Rule 42.1 - has been suspended due to the pandemic. thanks to reader Matt McClellan for catching that.)

And, if the party believes that the judge "is a material witness in the action" or "that on account of the bias, prejudice, or interest of the judge he (the party) cannot obtain a fair and impartial trial." That is from Arizona statutes (A.R.S. §12-409)

Of course, the real, practical questions are whether the Plaintiffs believe that Judge Coury is too biased or prejudiced against them.* And if so, would striking him - either as a matter of right or for cause - be worth the delay that would cause by forcing a re-set of Friday's 11:00am OSC (Order to Show Cause) hearing on their TRO (Temporary Restraining Order) motion.

*During the Democrats' campaign against retaining Judge Coury, Arizona's Law published this commentary decrying the effort.

**The full explanation from the Superior Court Public Information Officer Vincent Funari: "The case was assigned through iCIS, our Superior Court automated database system.  Nothing was done with the case until it received a case number, assigned by the Clerk of the Superior Court.  When the matter receives a case number, a judge is assigned through an automated process.  In this case, the automated process assigned the case to Judge Coury. After the Civil Presiding Judge was notified of the case and the assignment, Judge Coury was informed the case was assigned to him."

 "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: Democrats Go To Court To Stop State Senate Audit Of Maricopa County Presidential Election (READ Complaint)

UPDATE, 1:30pm: Although NOT a party to the new suit re: the election audit, the @MaricopaCounty  Supervisors will hold an EMERGENCY meeting at 2pm to discuss Judge Coury's temporary pause/etc, and their next steps.



UPDATE, 4/23: Here is our play-by-play coverage of this morning's hearing. We were joined by elections professional @ThePolitiKat. (Click on the embedded tweet to show all of the coverage in a separate window): 

The SUMMARY: Judge orders temporary halt of @ArizonaAudit/recount between 5pm today and noon on Monday, in order to allow parties to brief issues of (1) legislative immunity, (2) separation of powers, and (3) standing. Plus, the @azdemparty must post a $1M bond today to stop the audit. (In case it is found they wrongly brought this suit and caused damage to the Senate's/Ninjas' audit.)TODAY, get blue pens off of the audit floor, protect secrecy.

UPDATE, 4:45pm: A hearing on the Democrats'/Gallardo's Motion for a Temporary Restraining Order to stop the election audit has been set for TOMORROW at 11am in front of Judge Coury.

The Arizona Democratic Party and Maricopa County Supervisor Steve Gallardo have gone to court this afternoon to stop the State Senate/private audit of Maricopa County's November Presidential election.

The Complaint was initially posted by KPNX (Channel 12) and is reproduced below.

The suit names State Senate President Karen Fann, Sen. Warren Petersen in his role as Chair of the Senate Judiciary Committee, former Secretary of State Ken Bennett in his role as the State Senate's liaison in charge of the audit, and the lead contractor Cyber Ninjas.

The Complaint alleges that state law forbids the private auditors from looking at voters' confidential registration and voting records, which includes signatures, private information, and how (i.e. the method) in which they voted in November. It further alleges that they may not possess voted early ballots and the tabulation equipment.

The Plaintiffs also note that the auditors were not required to take an oath before taking control of the subpoenaed information and equipment and that they are not trained in signature verification.

The equipment and ballots are already in the process of being delivered by Maricopa County to the auditors at the state-owned Veterans Memorial Coliseum.

The case has been randomly* assigned to Superior Court Judge Chris Coury, who enraged Democrats last year with a ruling that would have removed the Invest In Ed ballot initiative from that November ballot. The Arizona Supreme Court reversed the decision, but Democrats led an effort to remove Judge Coury from the bench... on that November ballot.

(This is a developing story. Please check back for analysis and more details.)

*There are 22 judges in the Civil Division of the Maricopa County Superior 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.

OFF-TOPIC Announcement: HELP Recycle Used-Up EIP Debit Cards/etc (You CAN'T Just Throw Them In Your Recycling Barrels)

RECYCLE your used-up stimulus debit cards - as well as the credit cards, gift cards, etc - and keep them out of Arizona landfills! TODAY, we are starting a micro-non-profit project to actually RECYCLE those pieces of PVC with chips, magnetic strips, etc.!

Unfortunately, we cannot just toss this "plastic" into our recycling barrels - the municipal sorters just dump them in the landfill-bound trash stream. HOWEVER, ArizonasPolitics.com/ArizonasLaw.org and the Law Offices of Paul Weich are purchasing a recycling collection box just for these toxic cards, and are asking for your help. You can gather and drop off (or, send in) your used up cards, and you can help spread the word. (This will be an ongoing project.)

The IRS direct deposited the stimulus payments for one of my daughters, but the other one has received multiple debit cards from the government. Turns out millions of Americans received two or three of these non-reloadable cards from the IRS. Although each individual card is small, collectively that adds at least 2.8 tons of PVC materials to ARIZONA'S landfills.

The Terracycle recycling box will take those cards out of the trash stream and responsibly melt down the components into reusable materials.

We are also gathering used up gift cards, expired credit cards, etc. If you have or work at a business that accepts gift cards, or are a financial institution, collect those otherwise worthless pieces of "plastic" and get them to us. (We can even provide you a certificate to show your customers you're trying to be more sustainable!)

Make sure the cards are used up, then MAIL them to Law Offices of Paul Weich, 4802 E. Ray Road #23-541, Phoenix AZ 85044. If you're in our Tempe neighborhood, you can DROP them off at our office at 2234 S. McClintock. (We'll cut them in half if you haven't.)

QUESTIONS? Email me at Paul-dot-Weich-dot-Law-at-gmail-dot-com.

Tuesday, April 20, 2021

Appeals Court Blasts AG Brnovich Case Against ASU's Deal To Put Omni Hotel/Conference Center On Tempe Land; More Than $1 Million Paid In Attorneys' Fees

Update, 9/14/21: The Arizona Supreme Court today agreed to review Attorney General Mark Brnovich's lawsuit against ASU (Board of Regents). Both the Superior Court judge and the Court of Appeals found that the case over the Omni hotel in Tempe was improperly brought and that the Board is entitled to more than $1M in attorneys' fees.

The case had been dismissed because the judge(s) found that the AG did not have the statutory authority to claim that the deal to put the hotel/conference center on ASU land violated the law and that the deal violated the Constitution's Gift Clause.

The Supreme Court Justices will review both of those questions. Briefing will go through November 10 and oral argument will follow.

Original article, 4/20/21: Appeals Court Blasts AG Brnovich Case Against ASU's Deal To Put Omni Hotel/Conference Center On Tempe Land; More Than $1 Million Paid In Attorneys' Fees

The Arizona Court of Appeals unanimously upheld the Tax Court's dismissal of a case brought by Arizona Attorney General Mark Brnovich against the Board of Regents, and ordered the state to pay more than $1 Million in legal costs incurred in the dispute. Brnovich's office tells Arizona's Law tonight that they will appeal.

ASU and the City of Tempe cut a deal to put an Omni hotel and conference center on ASU land along Mill Avenue. The Attorney General sued within one year claiming that the deal violated law because it did not serve a public purpose, among other claims. Later, the AG's Office claimed that the proposed deal also violated the Gift Clause of the Arizona Constitution.

The Tax Court found that the AG did not have the authority to bring the first set of claims and that the Gift Clause count was filed too late. Judge Christopher Whitten awarded nearly $1M in attorneys' fees to be transferred from one arm of the state (AG's Office) to another (Board of Regents) to pay their private counsel (Snell & Wilmer and Perkins Coie).

The 3 judge panel of the Court of Appeals today found that Judge Whitten properly decided the case down the line. Judge Jennifer Perkins wrote that the Attorney General's Office definitely had known enough when the deal was announced in 2018 to file the Gift Clause count within the one year statute of limitations:

To be sure, the AGO did not obtain all documents related to the transaction contemplated between Omni and ABOR until after April 3, 2018. But the AGO undisputedly knew about the transaction and could have asked for copies of the agreements before that date. Indeed, the AGO affirmatively opted against requesting copies of the documents out of a desire—as one AGO attorney put it—not to “poke the bear.” The tax court thus appropriately determined Count IV’s accrual date as a matter of law. 

(On the day in January 2018 when the deal was announced, the AG's Office told the Arizona Republic the arrangement sounded "pretty suspicious.")

The appellate panel awarded attorneys' fees for the appeal, too, which will bring the total to more than $1,000,000. Ryan Anderson, the Communications Director for the Attorney General's Office, tells Arizona's Law that they will appeal today's decision to the Arizona Supreme Court.

"This lawsuit was dismissed on procedural grounds. Our office will appeal. The Attorney General will always fight against crony capitalism and sweetheart real estate deals that are unfair to hardworking Arizona taxpayers.”

We have an equally clear response from Arizona attorney Tom Ryan:

"First, Arizonans should ask: why is the Arizona Attorney General suing its own client, the Arizona Board of Regents instead of providing advice to it, at the outset of the issue. To  be clear, this case was nothing more than political grandstanding by Brnovich. Second, the Attorney General's office was well aware of what ABOR, Tempe and Omni Hotels were doing long before it filed the suit against ABOR. There is a clear cut 1 year statute of limitations claim that ALL litigation lawyers are aware of that applies to any governmental entity being sued. Brnovich's office violated that rule. The rest of the decision can be summed up this way: the Attorney General has no statutory authority to tell ABOR how to do its job. The Court of Appeals was not impressed with how Brnovich's office handled this case and affirmed an award of nearly $1,000,000 in attorneys' fees to the victors. On behalf of all Arizonans I'd like to say thanks for nothing. But I can't. Because it wasn't "nothing." It's a million dollars of taxpayer money wasted on this litigation boondoggle. Off my soap box now."

Here is today's Opinion:

"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, April 15, 2021

BREAKING: AZGOP Posts Bond To Cover Secretary of State Hobbs' Attorneys' Fees In Failed Post-Election Suit

UPDATE, 5/5/21, 5PM: The Maricopa County Superior Court today docketed the bond posted by the Arizona Republican Party in the amount of $18,237.59. The bond prevents Arizona Secretary of State Katie Hobbs from garnishing the AZGOP's bank account while the sanctions are on appeal.

You will recall that the AZGOP came up with a clever constitutional argument to try to convince the judge to set the (supersedeas) bond at $0. However, Judge John Hannah flatly rejected that argument and told the party they would have to post the entire amount of his judgment.

Meanwhile, the Court of Appeals has asked the AZGOP's attorneys to file their Opening Brief by June 14.

Original article, 4/15: AZGOP Appeals Scathing Sanctions Ruling For (One Of Its) Post-Election Lawsuits, Simultaneously Challenging Constitutionality Of AZ Supreme Court Rule; MORE

The Arizona Republican Party appeal filed its appeal Tuesday challenging the scathing ruling finding it had to reimburse the Arizona Secretary of State 's attorney's fees in one of its post-election lawsuits. In keeping with several of those unsuccessful lawsuits, the AZGOP also found a way to challenge the constitutionality of an Arizona Supreme Court rule.

Meanwhile, in a possible*game of double or nothing, a new campaign finance filing today shows the Republican Party made a payment to its attorneys in nearly the same amount that it is appealing (at nearly the same time as the court's ruling).

Let's take these developments one at a time:

First, the appeal. On March 15, Superior Court Judge John Hannah issued a scorching decision ordering the AZGOP and its attorneys to pay $18,237.59 to the Arizona Secretary of State. Hannah said the lawsuit challenging how Maricopa County audited 2% of vote centers instead of 2% of precincts was "groundless" - he had previously dismissed the case - and that the party's attorneys were trying to "gaslight" him. AZGOP attorney Jack Wilenchik told the Superior Court that day that they intended to appeal; the appeal was timely filed with the Court of Appeals this week.

Second, you need to know that a judgment for an amount owing can be collected even while the decision is being appealed unless the party owing the money asks the Superior Court judge for a stay. That stay is accomplished by posting what is called a "supersedeas bond" - and there are rules to determine the amount of that bond.

Under Arizona's court rules, the AZGOP should be posting the full amount of the owed attorneys' fees, $18,237.59. However, the AZGOP is arguing that that rule is unconstitutional because the Supreme Court's rule conflicts with a statute that impacts the party's substantive rights (to appeal). The party says the bond should be set at $0.00 because awards for attorney's fees are not part of "damages" and are not included in the statute regarding supersedeas bonds.

Both Maricopa County's(?) and the Secretary of State's attorneys responded, politely claiming that the party's reasoning "lacks merit". Wilenchik replied on Tuesday and it is now up to Judge Hannah to decide. (We will shortly post the legal pleadings in their entirety.

Third, and it really appears to be coincidental, the AZGOP finally paid Wilenchik & Bartness for some of its work for the party. Today's FEC filing indicates that the AZGOP sent a check for $17,071.27 to the firm on March 8.

Interestingly, that is the ONLY payment for legal services which the Arizona Republican Party has reported in its monthly filings (since the election). This despite having engaged several different attorneys and law firms in its various challenges to the November Presidential election. (It is entirely possible that those attorneys all agreed to perform the work pro bono - without pay - or that other entities paid them for their work on behalf of the party. The lone payment to Wilenchik & Bartness makes the former reason less likely.)

*The filing does not make it clear whether the payment is for its work in this case and associated appeals, for its work in defending the AZGOP in the pending suit over its internal elections, or for something else.

"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, April 14, 2021

BREAKING: State Can't Tell Tucson When To Hold Its Council Elections, Arizona Supreme Court Says (READ Opinion)

The Arizona Supreme Court today struck down the Legislature's most recent attempt to tell Tucson - and, other charter cities - how and when to conduct their local elections. Tucson has set its next City Council elections for this "off-cycle" year of 2021, and now will not be forced to change it to coincide with statewide (and Presidential) elections.

Tucson has indicated that it prefers the off year elections so that the choices do not get shoved down to the bottom of an often-long ballot. However, the trade-off is that voter turnout is lower for the city elections. In part of an ongoing effort to change the Democratic-dominated Tucson City Council, the Legislature recently (2018) passed a law stating that IF there was a "significant decrease in voter turnout", the Attorney General could force the city to switch their election dates.

Writing for the 5-1 Court majority, Vice Chief Justice Ann Timmer said that "the decision whether to hold municipal elections on cycle or off cycle is a matter of purely municipal concern. If a city’s charter authorizes the city to make that determination, state law cannot preempt the resulting decision. Section 16-204.01 is therefore unconstitutional as applied to the City’s charter and cannot preempt its election-scheduling provision."

We disagree with the Attorney General for two reasons. First, whether the City conducts on-cycle or off-cycle municipal elections affects the City’s autonomy in structuring its government. Just as deciding whether to conduct partisan elections or combine ward-based primaries with at-large general elections forms part of a charter city’s determination on how to structure its government, so too does determining whether to conduct on-cycle or off-cycle elections. Logically, of course, scheduling elections is an integral and indispensable part of conducting those elections and selecting city officers. Beyond that, policy reasons exist for and against conducting off-cycle elections. See Tucson III, 235 Ariz. at 438–39 ¶¶ 14–16 (listing competing policy considerations concerning voter focus, voter turn out, voter fatigue, and candidate competition for election resources). Weighing those considerations implicates a city’s choice for how best to elect its officers. 

As expected -  given his previous opinions - Justice Clint Bolick dissented. He argues that the Supreme Court began misinterpreting the relationship between the state and charter cities back in 1951 and are continuing down that misguided and meandering path. (The first 1 1/2 pages of the dissent recount a story about a meandering farmer and frustrated carpenter.)

As noted, this is not the first time that the GOP-dominated Legislature has tried to change Tucson's election patterns. In fact, the law struck down today followed a Court of Appeals opinion that struck down a 2012 law requiring Tucson to switch. (And, today's opinion will become known as Tucson V in the likely future court showdowns about "home rule".)


 "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, April 13, 2021

BREAKING, NO COURT KRAKEN: With TODAY'S Dismissal, Arizona's Presidential Election Is COMPLETELY Out Of Courts For 1st Time Since November

Today, for the first time since the week of the November 3 election, there are ZERO active court challenges to Arizona's Presidential election. The 9th Circuit Court of Appeals this afternoon dismissed the Arizona Republican Party's case suing Governor Doug Ducey and asking the court to "de-certify" the results giving Arizona's Electoral College votes to Joe Biden.

The AZGOP asked to voluntarily dismiss the appeal a few weeks after the U.S. Supreme Court declined to hear an appeal in the same case. Ducey and Maricopa County Recorder Stephen Richer mercifully agreed not to seek reimbursement of attorney's fees.

This was the last of some dozen cases brought by a combination of the Trump campaign, the Arizona GOP and various supporters. None of them came close to ending successfully and no convincing evidence of fraud was presented. One case resulted in attorney's fees being awarded to Secretary of State Katie Hobbs; no word yet on whether the AZGOP will appeal.

Of course, there is still a chance that the Arizona Kraken will try to rear its ugly head in Arizona courts again, as Republicans in the State Senate continue to spar with Republicans on the Maricopa County Board of Supervisors about efforts to recount the ballots (only) in the Presidential race.

POSTSCRIPT: As Joe LaRue from the MCAO points out, there is a petition for review in front of the U.S. Supreme Court. Burk sued Ducey in Pinal County Superior 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 podcasts.

Monday, April 12, 2021

BREAKING: Supes To Hold Special Executive Meeting Tuesday To Discuss Settlement Discussions In Presidential Election Audit Stand-Off

BREAKING: Maricopa County Board of Supervises sets special executive meeting for TOMORROW afternoon to discuss settlement discussions (and litigation, etc) with State Senate President @FannKfann re: GOP's audit of November Presidential election.

The meeting will begin at 2:00pm and will likely be mainly - or completely - behind closed doors.

The previous cases filed - the first by Fann and then-Senator Eddie Farnsworth, and the second by the County - have both been dismissed. So, any litigation would likely be a new case filed by the County.

 "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, April 5, 2021

UPDATE: Arizona Fight Against Provision Of American Rescue Plan Could Be In Judge's Hands By May 17

UPDATE, 4/14, 2:40pm: Arizona's request for an injunction declaring a portion of the American Rescue Plan unconstitutional could be in the judge's hands by May 17. Attorneys for Attorney General Mark Brnovich and U.S. Treasury Secretary Janet Yellen have reached a scheduling agreement for the state's injunction. 

Under the agreement, presented to District Court Judge Diane Humetewa this afternoon, the US DOJ has until the end of the month to respond to the April 5 injunction request. Amicus briefs favoring the states would be due April 23 and favoring the "no tax cuts using Covid relief funds" provision on May 3. The parties ask for a hearing to be set as close to May 17 as possible. (Details about the injunction and the Motion itself are below.)




UPDATE, 4/8 at 2:30pm: The AG's office informed the court this afternoon that they have, in fact, completed service of the Complaint upon Janet Yellen/Treasury Department and the U.S. Department of Justice. (Side note: can you imagine how much certified mail those agencies have to sign for each and every day?)

This paves the way for Judge Diane Humetewa to set a hearing on the injunction requested on Monday.

ORIGINAL ARTICLE, 4/5: BREAKING: AZ AG Brnovich Seeks Injunction Against Biden Administration/American Rescue Plan Provision (READ Motion)
Arizona Attorney General Mark Brnovich filed for an injunction this afternoon to knock out a provision of the American Rescue Plan which would prevent states from cutting taxes with Covid-19 relief funds received from the federal government. Calling the no-offset provision "patently unconstitutional", Arizona is asking federal judge Diane Humetewa to stop the feds from any plans to enforce it.

Today's pleading states that Arizona stands to receive approximately $4.7 billion of the $270B pot of funds. While noting that Arizona state government was hit hard by the pandemic, the AG wants the court to grant the injunction so that Governor Doug Ducey can pursue his $600M in permanent income tax cuts or the Legislature can confidently vote on measures that would offset the revenues raised by the voter-passed Invest In Ed proposition.

The federal law does have some ambiguity, which has been exemplified by conflicting interpretations by Sen. Joe Manchin (D-WV) and Treasury Secretary Janet Yellen. The motion for injunction focuses on the words "directly or indirectly" in the following section of the law: 
A State or territory shall not use the funds provided under this section or transferred pursuant to section 603(c)(4) to either directly or indirectly offset a reduction in the net tax revenue of such State or territory resulting from a change in law, regulation, or administrative interpretation during the covered period that reduces any tax (by providing for a reduction in a rate, a rebate, a deduction, a credit, or otherwise) or delays the imposition of any tax or tax increase. (emphasis added)
The lawsuit was filed two weeks ago, and there is no indication on the docket that the federal government has been served yet. Briefly, the case was assigned to District Court Judge Susan Brnovich - the AG's spouse.

The Motion also comes on the same day that (AG) Brnovich went on Fox News to invite Vice President Kamala Harris to tour the U.S./Mexico border with him.
 "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.

NEW: Despite Injunctions Elsewhere, USDOJ Not Impressed With Brnovich's 3rd Try To Fight Vaccine "Mandate" (READ Opposition)

Despite adverse reactions from several judges around the country, the USDOJ this afternoon blasted Arizona Attorney General Mark Brnovich&#...