BREAKING: In Split Decision, Supreme Court Finds Wendy Rogers Attack Ad Did Not Defame Modeling Agency Owner By Implying Opponent Was Creepy (READ Opinion)

Update, 2/1, 10:15am: BREAKING: In Split Decision, Supreme Court Finds Wendy Rogers Attack Ad Did Not Defame Modeling Agency Owner By Implying Opponent Was Creepy (READ Opinion)

A closely-divided Arizona Supreme Court ruled in favor of now-State Senator Wendy Rogers in a defamation case stemming from her 2018 attack ads against then-State Senator Steve Smith, implying that he was creepy because the modeling agency he worked with represented underage girls while also advertising on sites with ties to sex trafficking.

Justice Clint Bolick wrote the opinion for the majority. He began with the declaration: "We decide today that the First Amendment precludes a defamation action based on a political advertisement directed at an opposing candidate, in which the third-party plaintiff is unnamed, the alleged defamation is not expressed but only implied, and the asserted implication is not one that would likely be drawn by a reasonable listener."

Smith worked with the Young Agency, and Pamela Young brought the defamation action after the 2018 election (which Rogers lost). The trial court had refused to grant summary judgment for Rogers, finding that a jury should decide whether defamation had occurred. The Court of Appeals disagreed and ruled in Rogers' favor. Today's opinion agrees with that decision, but vacates the Court of Appeals' reasoning.

The brief dissent, authored by Vice Chief Justice Ann Timmer, also wasted no time pulling punches: "In its zeal to shelter political mudslinging under First Amendment freedoms, the majority abandons private individuals caught in the crossfire and effectively displaces the jury in cases involving implied defamation against unnamed, yet readily identifiable, people. Because Rogers’ radio advertisement here permitted a reasonable factfinder to conclude that it implied as a matter of actual fact that Young Agency was complicit in sex trafficking girls, a fact provable as false, the trial court properly denied Rogers’ motion for summary judgment."

Original article, 1/31, 10:50am: COMING SOON: AZ Supreme Court Ready To Rule In Wendy Rogers Defamation Case; May Impact Candidates' Campaign Ads

The Arizona Supreme Court is poised to issue its opinion tomorrow in a defamation case against now-State Senator Wendy Rogers, and the ruling could impact attack ads in campaigns to come.

In 2018, Rogers unleashed lethal attacks against then-State Senator Steve Smith in the Republican primary for Congress. (They were seeking to oppose Rep. Tom O'Halleran.) The defamation suit was brought by the owner of the talent agency which Smith worked with - Rogers' implied a connection between Smith and the trafficking of underage girls.

The trial court had refused to grant Rogers' summary judgment motion, but the Court of Appeals reversed and said that her attack ads did not defame the modeling agency owner. If the Supreme Court affirms that decision, it may indicate that statements made in campaign materials or ads cannot be understood as assertions of fact. If the Supreme Court rejects that and sides with the trial judge, it would be up to a jury to decide if the Rogers ad was defamatory.

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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: State Senate/Cyber Ninjas Get Temporary Reprieve On Orders To Turn Over Election "Audit" Records --AZ Supreme Ct.

 Arizona's State Senate and their Cyber Ninjas received a temporary reprieve on the latest order to turn over public records regarding the election "audit". Arizona Supreme Court Justice John Lopez IV put the "temporary stay" until the parties can respond to the Senate's Motion and Petition for Review and until the Court can conference on the matter on February 15.

Senate President Karen Fann's counsel (Wilenchik) appealed the Court of Appeals decision from Jan. 21. That court unanimously decided the Senate (and thus, the Ninjas) did not have broad legislative immunity from public records requests and ordered them to turn over the requested records either to the plaintiffs or the trial court judge.

Duty Justice Lopez ordered the temporary stay on Wednesday, but it was not publicly available until Friday night (despite requests from Arizona's Law). Here's his Order:

The Court did provide Arizona's Law with Wilenchik's Petition for Review and Emergency Motion for Stay.

 

Meanwhile, back in Superior Court, Judge Michael Kemp has indicated that he is thinking about changing his order fining Cyber Ninjas AND Wilenchik $1,000 for not attending a scheduled deposition earlier in the month. Wilenchik filed an Objection and Motion to Reconsider, and Judge Kemp has asked American Oversight to file a Response by February 7. (Responses to Motions to Reconsider are not necessary UNLESS the judge requests it; such a request only comes if the judge believes there might be some merit.)

In this case, the Objections is a contention that American Oversight cannot conduct discovery if they have not filed a Disclosure Statement.

There is also a $50,000/day fine still in place that is likely in limbo now that the Supreme Court has the temporary stay in place.

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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.

BREAKING: AZAG Brnovich Will Get An Injunction Against Biden Admin For Part Of Suit Challenging Vaccination "Mandates"

In a long time coming decision, U.S. District Court Judge Mike Liburdi partly granted Arizona Attorney General Mark Brnovich's request for an injunction against the U.S. government for its COVID-19 vaccination policies.

In the 55-page order, Judge Mike Liburdi explains why he WILL grant the injunction against the fed govt re: the Contractor Mandate but NOT against the Employee Mandate. Judge Liburdi has asked AG's to submit a proposed order by next week, and gives Biden Admin another week to object.

The issue there is that @GeneralBrnovich wants the SCOPE of the injunction to be national (like a couple of the parallel cases elsewhere). Liburdi states he intends to limit it to Arizona, so he's giving AG a chance to try to set the scope in writing.

Judge Liburdi found that he did not have jurisdiction to consider the challenge to the Employee Mandate, which seeks to make sure all U.S. govt employees get vaccinated or tested. Firm guidance from the feds has not yet come down the pike.

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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.

READ: Judge Ketanji Brown Jackson's Recent Job Application As She Becomes Front-Runner For Impending Supreme Court Nomination

This past spring, Judge Ketanji Brown Jackson was nominated by President Joe Biden to move from the DC District Court to the Court of Appeals for the DC Circuit. (Yes, there is one circuit - and one of the most important - just to deal with appeals from that district.)

Today, she immediately became the front-runner for the nomination to replace the soon-to-retire Justice Stephen Breyer. (Biden indicated he planned to nominate a Black woman when a vacancy arose.)  Here is her Senate Judiciary Committee questionnaire from this past June - basically, a job application. Below that are her answers to questions from the Senate Judiciary Chair.

Judge Jackson was confirmed in June by a 53-44 vote. (The Republicans voting aye were Collins, Graham and Murkowski.)

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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.

BREAKING: State Senate/Cyber Ninjas Tells Parties Election "Audit" "Data Room" Might Disappear At End Of Month; Senate Appeals To Supreme Court, More

While the Arizona State Senate is again appealing another Order to turn over records related to the election "audit", they warned parties that a Cyber Ninjas "data room" that may contain relevant data may "expire" next week for lack of payment. In addition to those developments, the attorneys for both sides continue to fight on several fronts.

Let's run everything down in a list:

1) At this afternoon's status conference, the Senate's attorney (Kory Langhofer) revealed that he today asked the Supreme Court to stop ("stay") the Court of Appeals' decision from last week. That Opinion reaffirmed that the Senate is not entitled to broad legislative immunity on the records related to the "audit" and ordered the Senate to turn over its records to either American Oversight and the Arizona Republic, or to the trial court judge for review.

2) Langhofer also notified opposing counsel this morning (by email) that he had spoken with former Senate liaison Randy Pullen "and he mentioned his impression that it (a "data room" with some records that might be relevant) exists or is rumored to exist." Pullen's impression was that a lease was expiring, said Langhofer. And, that he spoke with Cyber Ninjas attorney Jack Wilenchik and understood that Cyber Ninjas might transfer the data room to the Senate if the state agreed to take over certain unpaid obligations. "We know very little", Langhofer told Judge Michael Kemp.

Wilenchik called it a "false alarm", and said that a person "hanging on to it (a server) does not want to", but reiterating that "it is being preserved."

Arizona Republic attorney Craig Hoffman reminded Judge Kemp that the only reason this server is still out there as a possible issue is because the parties have violated court orders to turn over the records. "It is a symptom of the fact they are in violation of multiple orders."

3) The Senate's attorney has filed a notice to strike Judge Kemp from the case, although the judge indicated that he is leaning towards denying it. The Senate and the Cyber Ninjas repeatedly tried to kick Judge John Hannah off the parallel cases before Judge Kemp consolidated them last week and took them over. (No truth to the rumor that if Judge Kemp is now removed, they would head back to Judge Hannah's courtroom.)

4) The Arizona Republic has asked the judge to assess attorneys' fees against Cyber Ninjas, Wilenchik and the firm Wilenchik is part of. The Motion claims they made bad-faith arguments to withhold the records and that the attorneys should be assessed the fees incurred "during the periods in which Cyber Ninjas was invoking and relying on objectively baseless arguments to frustrate Plaintiffs’ statutory right to inspect public records promptly."

5) 

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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.

UPDATE: State Senate MUST "Immediately Disclose" Records From Election "Audit", No Broad Immunity; Court of Appeals Deals Umpteenth Blow To Fann/Cyber Ninjas

UPDATE, 1/21, 5:20pm: State Senate MUST "Immediately Disclose" Records From Election "Audit", No Broad Immunity; Court of Appeals Deals Umpteenth Blow To Fann/Cyber Ninjas

The Arizona State Senate and the Cyber Ninjas must "immediately disclose" the records related to its election "audit" listed in its privilege log, the Arizona Court of Appeals ruled today. (If the Senate feels some might still be privileged, they must turn them over to the judge to decide.) If it seems like deja vu all over again, that's because today's opinion is about the tenth time that judge's at every level of Arizona's judicial system have told them that.

Judge Michael J. Brown wrote the unanimous opinion in this Special Action filed by Senate President Karen Fann's counsel (Kory Langhofer and Tom Basile). The court did vacate the part of the Superior Court decision that said that the Senate had waived its right to claim privilege because it had made statements to the press and public about the audit, but affirmed the rest of Judge Michael Kemp's analysis.

"Nothing in the record shows that the prime purpose of the audit was to identify changes required to Arizona’s voting laws, and it is undisputed that at no time during the audit was any election legislation pending before the legislature. Rather, as outlined in the Statement of Work, the audit’s primary objective was to verify that election procedures were sufficiently observed. Indeed, the audit has more hallmarks of an administrative action than of any deliberative or communicative process integral to its legislative function."

If Judge Kemp's name seems familiar, it is because he is the Superior Court judge who will be taking over both public records cases (see below). He has a status conference set for Tuesday, at which he will likely be checking on why Cyber Ninjas has not paid any of the $50,000/day contempt fine for failing to turn over documents, issued by another judge.

He has also order the head Cyber Ninja, Doug Logan, to sit for a deposition by next Thursday.

(Clarified to indicate that the Senate may still turn some over to the judge to determine if they should be disclosed.)

(Also corrected "deja vu". I have the feeling I have made that error before. h/t @AzEagletarian)

(h/t @MainMan4AZ)

Original Article, 1/20, 11:45am: 

Maricopa County Superior Court Judges came up with a creative way to get rid of the Cyber Ninjas' effort to kick a 3rd judge off of one of the election "audit" public records cases. 

For the last several months, there were two parallel cases against the Arizona State Senate and the Ninjas for the public records, and the judges had refused Ninjas' efforts to consolidate them. Judge Michael Kemp has now reconsidered his previous denial, and grabbed control of the case brought by the Arizona Republic and combined it with the one brought by American Oversight.

This mooted the Ninjas' effort to remove Judge John Hannah for alleged political bias, and Judge Randall Warner this morning denied that motion.

Judge Kemp noted that several circumstances had changed since the Ninjas' efforts to consolidate were denied. Mostly, that he recently added the Cyber Ninjas as a party to American Oversight's case against the State Senate. Also, "both matters appear to be in a substantially similar posture. Both cases are now stalled due to CNI's refusal to turn over public documents in their physical possession despit previous Court orders which have been affirmed on appeal."

The Cyber Ninjas - to the extent that there is still a Cyber Ninjas, as it claims to have shut down - can claim a double pyrrhic victory. However, they may not have gained much by it. Judge Kemp has been just as firm in his rulings that the Cyber Ninjas must turn over public records even though it is (was) a private company.

The second issue cleared by the case consolidation is the difficulty for all parties to be dealing with (largely) the same issues in two ping-ponging cases. (Even the appellate courts have been involved in the legal back-and-forths in this case.)

So, where is the combined case now? Well, Cyber Ninjas (former?) CEO Doug Logan is under order to appear for a deposition before January 27, and a status conference is set in front of Judge Kemp for next Tuesday. (A key subject then will likely be the $50,000/day contempt fine ordered by Judge Hannah.)

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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.

UPDATE: Judge Liburdi Gives AZ AG Brnovich, Biden DOJ 6 Days To Address U.S. Supreme Court Decisions On Vaccines

 In the wake of yesterday's dual decisions on vaccine-or-test requirements from the U.S. Supreme Court, Arizona Judge Mike Liburdi has given AG Mark Brnovich and the U.S. six days to file briefs explaining how the new developments should impact Arizona's long-stalled challenge.

Brnovich's case was the first in the nation to challenge the Biden Administration on the issue, but it has failed to gain traction through a series of repositionings (i.e. Amended Complaints).

Liburdi immediately asked the parties to brief him on the impact of the NFIB case - the one where the Supreme Court found that the federal OSHA had exceeded its authority. Later, he added that they should also address the sister opinion in the Missouri case; that one permitted the Administration to enforce a temporary mandate on health care workers in facilities receiving federal funds.

Liburdi currently has dueling motions from the parties to decide - the AG's request for an injunction, and the USDOJ's motion to dismiss the counts challenging immigration policies. (The case started off with a unique legal premise that has morphed.)

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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.

After Long Path, Judge Warner Will (Again) Decide Disqualification Motion (UPDATE, READ Minute Entry)

UPDATE, 1/14 at 11:30am: After Long Path, Judge Warner Will (Again) Decide Disqualification Motion:

Wilenchik's new motion to disqualify Judge John Hannah from the election "audit" public records case is following a similar path as last July's unsuccessful motion. Today, it was assigned to Hon. Randall Warner for a decision. 

Warner denied the July Motion after it had virtually traveled Superior Court's hallways from Hannah to Presiding Judge Pamela Gates to Warner. The virtual trip for the current Motion added a stop because Gates also recused herself. That sent it to Associate Presiding Civil Judge Timothy Thomason. Thomason recused himself and assigned it to Judge Warner.

Warner has given the Arizona Republic until Tuesday morning to respond.

All of these judges have been involved in one or more of the many political- and election-related cases over the past couple of years(!), even as large as the Maricopa County Superior Court bench is (and it is one of the larger in the nation). In fact, Arizona's Law even published an article about the judge-picking process several months ago: "SIDEBAR: How Is a Judge Assigned A Case In Maricopa County Superior Court, and What Can the Parties Do?" Given all this and their desire to avoid the appearance of conflict, it would be inaccurate to conclude that the judges are recusing themselves because they are simply shying away from controversy.

(Also see below for original article re: Logan's text to State Senate President Karen Fann.)

Here is today's Minute Entry:

UPDATE, 2:45pm: DON'T LET THE DOOR HIT YA: Would-be Outgoing Cyber Ninjas' Attorney Accuses JUDGE of Unethical Behavior, Demands Disqualification

As indicated in the original article, the unpaid and would-be outgoing attorney for the Cyber Ninjas filed a Motion to disqualify Judge Hannah earlier today. Arizona's Law now has received and reviewed the Motion, and it is a doozy. (See below.)

Wilenchik accuses Judge Hannah of violating judicial ethics by being aware of the other public records request case filed against the State Senate and Cyber Ninjas, and by reading news coverage of the cases. Hannah asked Wilenchik at the Jan. 6 hearing about whether the deposition of Logan in the other case (filed by American Oversight) had taken place. (It had not, as detailed below.) Hannah also referenced the millions of dollars received by Cyber Ninjas for the election "audit", as the Arizona Republic had reported.

(It is worth noting that Wilenchik had also initially wanted the two separate lawsuits to be consolidated.)

The DQ Motion goes on to detail 18 political contributions allegedly made by Judge Hannah to progressive causes and/or candidates, in an effort to show bias. "This is an unusual level of political activity for most people, much less a superior court judge."

Here is the entire Motion:

Arizona's Law has previously reported on Wilenchik's initial (unsuccessful) efforts to remove Judge Hannah from the case. Wilenchik also asked the Supreme Court to find that he and his client had a right to strike Hannah from the case without cause, and that that peremptory challenge had wrongly been removed by the Court due to the pandemic. That was also unsuccessful.

Original article, 1/12, 1:15pm: BREAKING: Cyber Ninjas' Doug Logan Tells Senate President Karen Fann "I will stop completely covering" for State Senate In Longgg Text; Other Developments

As the developments in the aftermath of the Arizona State Senate's much-watched election "audit" continued to swirl around multiple court cases and former President Donald Trump talking about his Arizona attorneys in advance of his upcoming rally, new texts between former Ninja Doug Logan and Senate President Karen Fann have come to light. Logan tells the Republican that he "will stop completely covering" for her and threatens her that it will be out of his control after filing bankruptcy.

The texts were turned over by Fann attorney Kory Langhofer over the weekend, after being requested by American Oversight in one of the ongoing public records lawsuits last week. Langhofer explains that the January 3 communication from Logan to Fann was one long text, rather than a series - and that Fann did not respond. 

Logan claims to have "some patriots" working to help keep him from shutting down and defaulting in the two public records cases. He seems to know he should not be texting Fann, but claims "its (sic) the right thing to do."

Then, Logan gets to the nut of the matter: 

I have no intention of throwing you or anyone else under the bus, but I expect the time has also come for me to stop completely covering for decisions I didn't make. I will follow my legal council on what that looks like.

When we finally file for bankrupcy (sic), which I am trying to wait as long as possible before doing; it will be up to the bankrupcy court to decide what to do with the money owed. I've been told we have a strong legal case, but I will continue to put the country first; like I have in all of my decisions with this. When it hits bankrupcy court, it will be out-of-my-control.

Here are those texts:

The texts were filed with the court in American Oversight's case as part of a renewed Emergency Motion to depose Logan and to sanction the Logan/Cyber Ninjas for failing to appear at the January 5 deposition. They have reset the deposition for January 27 and are asking the Court to command his attendance.

Meanwhile, that attorney for the Cyber Ninjas who unsuccessfully tried to withdraw from both cases for lack of payment of his fees, filed a Motion today to kick Judge John Hannah off of the case. While not yet publicly available, this follows Hannah's scathing comments to attorney Jack Wilenchik during last week's contempt hearing. Hannah warned Wilenchik that he was "trolling" the court before denying Wilenchik's efforts to withdraw, held the Ninjas in contempt and ordered $50,000/day sanctions for failing to turn over the records.

(In his text, Logan seems to confirm to Fann that he is trying to "liquidat(e) all of the Cyber Ninjas assets" - presumably including those which contain the public records he is being sanctioned for.)

Finally, in an Order docketed yesterday, Judge Hannah determined that the funds deposited with the Clerk of the Court for sanctions could be properly distributed as received. The Clerk's Office confirmed to Arizona's Law that no funds had been received "as of COB yesterday".

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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.

Supreme Court DENIES Cyber Ninjas' Effort To Use Ping Ponging Orders To Halt $50,000/day Fine (READ filings, order)

The Arizona Supreme Court quickly slammed Cyber Ninjas emergency effort to stop the $50,000/day contempt fine for refusing to turn over records pertaining to the Arizona Senate's election "audit". 

Jack Wilenchik, the trying-to-withdraw attorney for the Ninjas got out of yesterday's contempt hearing and immediately filed a two-page Emergency Application with the Supreme Court. Justice John Lopez (the on duty justice for emergency matters) ruled late yesterday afternoon.

Wilenchik asserted that the ping ponging orders from the Superior Court and the Supreme Court - which he had caused - were preventing him from being able to appeal the contempt fine. "When undersigned counsel raised this issue (at Thursday's Superior Court hearing) and this Court's Order with the lower Court, it chose to overlook the language in this Court's Order by simply characterizing it as an Order 'denying a stay'." CNI therefore has no choice but to ask this Court to enforce its own Order that 'CNI may therefore assert any pertinent objections in the Superior Court and, if necessary, seek appropriate review in the Court of Appeals,' on an expedited basis."

After Justice Lopez's head stopped spinning, he denied Wilenchik's effort by explaining that the Supreme Court's previous Order had been related to stopping the production of documents by permitting the Cyber Ninjas and the Senate to produce a privilege log and present documents privately to the Judge to decide. The Order did not relate to the contempt proceedings.

The Cyber Ninjas and Senate apparently produced a privilege log in mid-December raising several objections. But, both Judge Hannah and Justice Lopez have moved forward (or permitted to move forward, respectively) with the contempt motion.

Here is the entirety of yesterday's Supreme Court denial:

And here is Cyber Ninjas' Emergency Application: 

It was only two days earlier that the Supreme Court had denied Cyber Ninjas' Special Action request, and this proceeding was due to be closed. (Expect the Supreme Court Clerk to now quickly close this case number to prevent further emergency pleas in this file.)

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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.

BREAKING: Supreme Court DENIES Cyber Ninjas' latest appeal in election "audit" public records case (READ Order)

In an Order released this morning, the Arizona Supreme Court denied the Cyber Ninjas' latest appeal in its attempt to not turn over public records related to the election "audit" it was hired by the Arizona State Senate to conduct last year. This is in the public records case brought by the Arizona Republic.

Without noted dissent, the Court denied the Ninjas' effort as either a Special Action or a more common Petition for Review. However, the order notes that the Cyber Ninjas may still raise their issues "when the case before the superior court is final." (In other words, without prejudice.)

An Order To Show Cause Hearing is set for tomorrow morning in Superior Court, at which time Judge John Hannah could hold the Ninjas in contempt for not complying with the court's orders regarding the records.

For further details, please visit our previous article: "GROUNDHOG DAY: Arizona Republic Explains To Arizona Supreme Court Why Cyber Ninjas Must Turn Over Election "Audit" Public Records"

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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.

Well-known AZ Democratic Lawyers Roy Herrera, Dan Arellano Open Own Office, Leave National Firm

Well-known Democratic attorneys Roy Herrera and Dan Arellano have opened their own election law boutique firm. The co-counsel for the Arizona Independent Redistricting Commission will continue in that role, and they bring with them U.S. Senator Mark Kelly and other clients.

Herrera and Arellano made the move from the Phoenix office of the national firm Ballard Spahr late last month. Herrera confirmed to Arizona's Law that they will

continue to be the Democratic legal counsel for the IRC as the Commissioners head to final approval of the maps on January 18... and the likely litigation to follow. 

Herrera and Arellano had moved to Ballard Spahr in 2018 from Lewis Roca.

(The Republican attorneys for the IRC are Eric Spencer and Bret Johnson at Snell Wilmer.)

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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.

BREAKING: Taxpayers' Cost For AZ Legislature's Extreme Log-Rolling About To Multiply; Brnovich May Cause It To Keep Increasing (READ Filings)

Update, 1/5, 4pm: The AZ Supreme Court will release its slam dunk Opinion TOMORROW, explaining why the Legislature's extreme log-rolling was unconstitutional. This was the order finding the Leg's ban on schools requiring face masks unconstitutional. The Court made its decision on November 2, only a couple of hours after hearing oral arguments. 

Original article, 1/4 at 4pm: BREAKING: Taxpayers' Cost For AZ Legislature's Extreme Log-Rolling About To Multiply; Brnovich May Cause It To Keep Increasing (READ Filings)

The cost to state taxpayers for the Arizona Legislature's extreme log-rolling budget bills is poised to more than double this month, and Attorney General Mark Brnovich's office can do little more than ask the courts to shave a little off of the bill.

Phoenix successfully sued to strike down a part of the Legislature's budget bills which interfered with the city's new ordinance setting out civilian oversight of the police department. 

The Attorney General's Office has appealed that anti-logrolling decision, even after the Arizona Supreme Court had affirmed a similar ruling brought by the Arizona School Boards Association (and others) against portions of the budget reconciliation package striking down schools' masking policies. (The appeal is still pending, with an opening brief due Feb. 28. See, "AZAG Mark Brnovich and Albert Einstein (Z''L) Finally Have Something In Common; Appeal Filed In Phoenix Suit Vs. BRB")

The City is now asking Superior Court Judge John Hannah for more than $177,000 from the state to recoup its attorneys' fees in the suit so far. (The Motion is published below.)

Brnovich's office has responded (also below) by asking the Court to *only* award $105,569.49, claiming that the attorneys inflated some of their time entries. In an interesting argument, the AG also notes that the ASBA plaintiffs only received $102,760 in attorneys fees, and that that was for a bulkier case.

No matter which way Judge Hannah rules after receiving Phoenix's Reply next week, Arizona taxpayers' tab is going to balloon to more than $200,000 for the two cases. (That does not include the time devoted to the cases by the Attorney General's Office.) And, it could go over $300,000 if any of the plaintiffs seek fees for the appellate processes initiated by Brnovich - particularly the one started *after* the Supreme Court's decision.

Perhaps even more interesting and eye-opening, the AG's argument includes the attorneys' fees awards obtained by private counsel for the Arizona Board of Regents in Brnovich's ill-fated lawsuit(s) against Arizona State University for its development practices. The Response notes that only $85,512 was awarded against the state in one part of that case, and that Superior Court Judge Christopher Whitten pared down another award to *only* $115,610. 

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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.

BREAKING: Biden DOJ Moves To Dismiss Brnovich's Vaccine "Mandate"/Illegal Immigrant Claims (READ Filing)

The U.S. Department of Justice has filed a Motion to Dismiss the original claims made by Arizona Attorney General Mark Brnovich against the so-called vaccine "mandate". 

You may recall that Brnovich rushed to be the first AG in the nation to challenge President Biden's September announcement of a vaccinate or test requirement. He achieved that first in the nation status by arguing that there is no vaccine requirement for "unauthorized aliens", so to (kind of) impose such a requirement on U.S. citizens is a sort of reverse discrimination and violates the 14th Amendment's Equal Protection Clause. (And, therefore, the action is subject to "strict scrutiny".)

The case, in front of a Trump-nominated judge (Mike Liburdi), has floundered ever since, even as the Attorney General has filed the Third Amended Complaint and added various plaintiffs.

Monday's Motion to Dismiss is only as to the original unauthorized aliens claims. Those claims dropped the Equal Protection aspects and now focus only on the releasing of the noncitizens pending court hearings. The DOJ claims that Brnovich "misreads the law" and that "Arizona’s claims are non-justiciable and without merit. Arizona’s claims must be dismissed because Arizona lacks standing, some of its claims are moot, and the actions it challenges are committed to agency discretion, not final agency action, and precluded from review by statute. Arizona also lacks a cognizable cause of action to enforce the INA, and its immigration claims fail on the merits."

The Attorney General's Office has already agreed to a standard briefing schedule on the Motion, meaning a decision on Arizona's first in the nation case will not take happen before late February. Brnovich has since turned most of his attention to cases started by other states, in which he has joined. Two of those will be taken up by the Supreme Court on Friday.

Brnovich is running for the U.S. Senate seat held by Mark Kelly.

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"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.