Friday, August 20, 2021

BREAKING: AZ Supreme Court Gives Fann/Ninjas More Time To Turn Over "Audit" Records - At Least Until Mid-Sept. (READ Order)

UPDATE, 8/24, 10:30am: BREAKING: AZ Supreme Court Gives Fann/Ninjas More Time To Turn Over "Audit" Records - At Least Until Mid-Sept. (READ Order)

The Arizona Supreme Court today extended the stay for Senate President Karen Fann and the Cyber Ninjas, extending the briefing and conference schedule on the Public Records Law suit to September 14. There had been an August 31 deadline to turn over the records in the physical possession of the Ninjas.

The full court warned the State Senate Republicans, however, to keep working on the documents during the interim period: "IT IS ORDERED extending the stay to enable the Court to fully consider the issues raised in the petition for review. However, this order does not relieve the Petitioners from continuing to review and produce documents Petitioners have already agreed to produce, as noted on pages 2-3 of Petitioners’ Petition for Review (“The Senate has produced, or will produce, to American Oversight any documents in the physical possession or physical custody of any of the Senate or of Secretary Bennett that are (1) responsive to American Oversight’s public records requests; and (2) not protected from disclosure by any constitutional, statutory or common law privilege or confidentiality.”)."

The Court invited any amicus ("friend of the court") briefs to be filed by next Tuesday, and promised to privately conference on the matter on September 14.

(Later clarification: The above paragraph from the Court has confused some readers. There are now two different categories of documents/records:

1) those Fann (Langhofer) acknowledges should be turned over, but haven't been. Still should be: "this order does not relieve the Petitioners from continuing to review and produce documents Petitioners have already agreed to produce."

2) the so-called "Withheld Records" are the ones that weren't in Senate's "physical possession". Those are the subject of the Supremes' Stay.

(Further pleadings and details can be found below, in the original article and updates.)

UPDATE, 8/23, 4:30pm: NEW, UPDATE: Arizona Supreme Court Told Impending Election "Audit" Findings "Makes Immediate Disclosure All the More Critical"

American Oversight has told the Supreme Court that the soon-to-be-released-maybe report on the State Senate's election "audit" "makes immediate disclosure all the more critical." American Oversight's Response - in their public records case against Fann and the Cyber Ninjas - argues the Court should refuse to stay the August 31 deadline set by Superior Court Judge Michael Kemp, and should refuse to accept the appeal.

Arizona citizens are entitled to see what their government is up to now, particularly where Petitioners and their agents have for many months been disseminating selective information about the audit while cloaking from public view the public records that would permit the public to assess the accuracy of that (mis)information and the credibility and financial motivation of those delivering it. Moreover, Petitioners are apparently about to release their “audit” report, which makes immediate disclosure all the more critical.

Justice Kathryn King put a temporary stay in effect on Friday, until this Response could be received and considered. It was filed Friday afternoon (it has not yet been publicly posted), so a decision could come at any time in the next few days.

American Oversight's attorneys (Desai/Gaona/Beauchamp) noted that Fann has already suffered three consecutive losses "on the narrow (and unremarkable) issue of producing public records relating to their “audit” of the 2020 General Election, Petitioners have the effrontery to declare (at 5) that, “[i]f American Oversight really is entitled to the documents it seeks (to the extent they exist), it will get them in due course.” But the Public Records Law mandates “prompt” production, and four months have passed since American Oversight submitted its requests.

Here is the full Response:

UPDATE, 6:10pm: The Arizona Supreme Court has re-placed a temporary stay on the trial court's order setting an August 31 deadline for turning over the records held by the Cyber Ninjas. However, as new Justice Kathryn King* held a conference call with the attorneys today and received American Oversight's Response this afternoon, it is highly unlikely that the state's highest court will not have come to a decision before the end of the month.

Here's the Scheduling Order:

*King was on call as the "Duty Justice" to handle emergency hearings such as this. She was just put on the Court last month.

UPDATE 12:45pm: Here is the Emergency Motion for Stay and Petition for Review which Karen Fann's attorneys filed with the Arizona Supreme Court last night. Fann blasts the "doctrinal innovation" of yesterday's decision and worries that "(I)ts conclusion that the Senate is not immune from judicial diktats ordering it to divulge alleged legislative records flies in the face of more than a century of federal and Arizona precedents recognizing legislative immunity as a bulwark against all claims seeking any variant of relief that arise out of an official legislative function, such as the audit."

UPDATE 10:45am: Karen Fann filed an appeal with the Arizona Supreme Court last night, and has also asked that an Emergency Stay be granted (to pause the August 31 deadline). (Case number is CV-21-0197.)

ORIGINAL ARTICLE, 8/20/21, 7:20am: NEW, ELECTION "AUDIT": "Senate outsourced its important legislative function to Cyber Ninjas" - therefore, Ninjas' documents are "public records"

Because the "Senate outsourced its important legislative function to Cyber Ninjas and its sub-vendors", the Ninjas' documents related to the "audit" of Maricopa County's election are "public records" that must be disclosed The Court of Appeals thus disposed of State Senate President Karen Fann's appeal and argument that requiring disclosure would subject all government vendors to Arizona's public records law.

The Court "found no error" with the trial court's determination that the records must be turned over, lifting the temporary stay it had placed while considering the special action petition. Superior Court Judge Michael Kemp has given Fann until August 31 to comply.

The three judge panel also brusquely disposed of Fann's attorneys' argument that Fann could avail herself of legislative immunity because an audit and the decision to release the underlying records is a "legitimate legislative function."

Judge Maria Elena Cruz wrote the Memorandum Decision and stated that "(L)egislators are not afforded absolute immunity for all acts that are “in any way related to the legislative process,” nor is legislative immunity intended to make legislators “super-citizens,” immune from all responsibility." And, "Allowing the legislature to disregard the clear mandate of the PRL would undermine the integrity of the legislative process and discourage transparency, which contradicts the purpose of both the immunity doctrine and the PRL.

 "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. 

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