Thursday, January 20, 2022

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. 

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