Wednesday, August 25, 2021

NEW: AZ Supreme Court Sharpens Definition Of "Substantially Prevailed" For Public Records Cases; Benefits ACLU and May Impact Election Audit Lawsuit (READ Opinion)

In a case of interesting timing, the Arizona Supreme Court today issued an Opinion in a long-running public records case that the ACLU has had against the State, and it might impact the much-watched lawsuit about the Senate's election audit records.

To be awarded attorneys' fees in many court cases, a party needs to convince the judge that they "substantially prevailed". However, that is often not as clear-cut as you might expect. 

The unanimous court sharpened the definition today for public records cases, suggesting that the trial court judge must conduct a "comprehensive examination" and award fees if the plaintiff "was more successful than not in obtaining the requested records, defeating the government’s denial of access to public records, or securing other relief concerning issues that were contested before litigation was initiated...." (The key word there is the "or".)

 

The Supreme Court remanded the case back to the trial court to apply their broader test. In this case, Superior Court Judge David Gass had already found that the ACLU substantially prevailed, so it is likely to succeed in getting its fees from the state's Department of Child Safety. (More than eight years ago, the ACLU sought records regarding child welfare services.)

Of course (as we have been reporting on this past week), the Supreme Court also is currently considering American Oversight's public records case against the State Senate Republicans regarding the ongoing election audit/recount being conducted by the Cyber Ninjas. That case is not yet at the point where the plaintiff is ready to ask for attorneys' fees, but the Senate's attorneys have already acknowledged that more records will be turned over.

"I’d say the court made it clear that a superior court judge has broad discretion to award fees in public records cases and AO has a better chance of getting fees now than it did before this decision," Phoenix appellate attorney Taylor Young (Burg Simpson) tells Arizona's Law.

Here is today's opinion, written by Justice James Beene:

 "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.

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