Monday, February 28, 2022

UPDATE: Judge STRONGLY DENIES Cyber Ninjas' Latest Bid To Dismiss Public Records Case (READ Minute Entry, Motion)

UPDATE, 3/2 at 4:45pm: Judge Strongly Denies Cyber Ninjas' Latest Bid To Dismiss Public Records Case

Superior Court Judge Michael Kemp ruled today on Cyber Ninjas' Motion to Dismiss the public records case surrounding documents related to State Senate President Karen Fann's election "audit". 

The (still-)attorney for the Ninjas, Jack Wilenchik, made a variety of arguments as to why the case should be dismissed. Kemp's response was "The Motion to Dismiss is denied in its entirety."

"In its Motion, CNI makes the same argument previously rejected by the Court of Appeals. The Superior Court and the Court of Appeals unequivocally held that the documents related to the audit are public records regardless of whether the Senate Defendants or CNI has actual, physical possession. The Supreme Court of Arizona again declined jurisdiction."

The Motion was filed on January 21. Both the Minute Entry and the Motion are presented below. 

Original article, 2/28 at 3:45pm: NEW: Cyber Ninja Doug Logan (and His Wife) Should Be Defendants In Election "Audit" Public Records Case, Arizona Republic Tells Court

Based on his January deposition, Doug Logan (and his wife) should be added to the election "audit" public records lawsuits, the Arizona Republic told the court this past week.

The head Cyber Ninja told attorneys that he and Mrs. Cyber Ninja are the sole shareholders of the now-empty shell of the company that Arizona Senate President Karen Fann hired to conduct last year's "audit" of Maricopa County's 2020 Presidential election. Therefore, the Motion to Amend the Complaint states, the Logans are "custodians in fact" of the public records which have not been turned over.

The Motion also argues that the corporate veil of the Cyber Ninjas could also be pierced, which might be important to go after the $50,000/day contempt fine that was ordered against the company for failing to turn over records.

The State Senate has paid its attorneys more than $500,000 in attorneys' fees during the course of the audit and the related public records cases.

The case is currently active in the Superior Court and the Arizona Supreme Court.

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: AZGOP Asks AZ Supreme Court To Strike Down Popular Long-Standing Early Voting System (READ Complaint)

UPDATE, 5:30pm: The Supreme Court is giving AZ Secretary of State Katie Hobbs until March 11 to respond to the AZGOP's Special Action seeking to throw out Arizona's entire early voting system. All briefing will be completed by March 18 and the Justices will then decide the matter without hearing oral arguments.

ORIGINAL ARTICLE, 2/28, 2:15pm: READ: AZGOP Asks AZ Supreme Court To Strike Down Popular Long-Standing Early Voting System (READ Complaint)

Arizona has long had a very popular early voting system. The Arizona Republican Party thinks the state has been violating the Constitution all of those years, and filed an action directly with the Arizona Supreme Court to throw it out.

AZGOP Chair Kelli Ward hired attorney - and, candidate - Alex Kolodin to file the direct action. The Arizona Supreme Court rarely takes a case before it has been filed and considered in Superior Court ("original jurisdiction"), but Kolodin believes that this is purely a legal issue with no contested facts and that this sudden revelation needs to be decided on an expedited basis.


In addition, the AZGOP alleges that Secretaries of State have violated the law by not including signature verification guidelines in the Election Procedures Manual, and that ballot drop boxes may not be used.

The allegations that early voting is unconstitutional are based on the words "at the polls" in the Arizona Constitution. Kolodin then uses a strict definition of the word "polls". 

Interestingly, the Complaint only cites that language in the context of determining citizens' initiatives or referenda - not races for elected offices. 

The newly-assigned case number is CV-22-0048, and the case was filed on Friday.

(This is a developing story. Please check back for further updates.)

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.

Friday, February 25, 2022

UPDATE: T-Mobile (1) Hires Local Republican Attorney, and (2) Confirms It Has Not Sent Kelli Ward's Phone Records To January 6 Committee (READ Stipulation)

AZGOP Chairwoman Kelli Ward hired attorney Alex Kolodin to help her deal with the House Committee investigating the January 6 attack on the U.S. Capitol. Her cellphone provider has hired local powerhouse GOP attorney Brett Johnson to represent it in the case.

Johnson filed his notice of appearance in the U.S. District Court case for T-Mobile, and confirmed today that the company has NOT turned over the subpoenaed phone/text records to the House Committee. 

The Committee has separately requested documents from Ward in her role as the leader of the effort to present Congress documents claiming that Arizona selected former President Donald Trump's 11 electors in the November election. They have asked her to sit for a deposition by March 11.

Ward's Arizona lawsuit is against the Jan. 6 Committee. However, there is no indication that she has yet properly served the summons issued on February 3.

Early in the post-election litigation frenzy, it briefly appeared that Johnson (Snell & Wilmer) was representing the AZGOP, the Republican National Committee and the Trump campaign. However, he withdrew as counsel shortly after the 2nd case was filed. Johnson frequently represents Governor Doug Ducey's office and recently served as Republican co-counsel for Arizona's Independent Redistricting Commission.

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.

Thursday, February 17, 2022

BREAKING UPDATE: AZ Justice Suddenly Recuses Himself In Election "Audit" Public Records Case (READ Letter)

Arizona Supreme Court Justice Clint Bolick has recused himself from further participation in the swirling appeals involving last year's election "audit". Bolick participated in the four previous actions related to the "audit" (and previous cases related to the 2020 elections), but just discovered on Tuesday that his wife - State Rep. Shawnna Bolick - received some of the correspondence related to the "audit" that was listed in the privilege log.

Although the "audit" was conducted by the GOP-controlled State Senate, Rep. Bolick was involved in the post-election maneuverings at the Legislature and received national publicity for her proposed 2021 bill which would permit legislators to nullify Arizona's popular presidential vote.

Arizona's Law requested and received a copy of the recusal letter addressed to parties in the case this afternoon.

"Following our conference on the Petition for Review in this matter, I learned that my wife, Representative Shawnna Bolick, was a recipient of e-mail correspondence listed in the privilege log. According, i recuse myself from all future proceedings in this matter."

(Added later:) Justices are not required to offer reasons for recusing themselves from a case.

The first time the public records cases reached the Arizona Supreme Court was in August 2021, and this is now the fifth time the matters have been in front of the Justices. This time does have to do with the privilege log referenced in the recusal letter.

The Arizona Supreme Court also currently have other cases potentially involving his wife, including the attorneys' fees award against the Arizona GOP - in which the party's attorneys are claiming that the Superior Court Judge should be disqualified because he has made contributions to Democrats. Earlier this week, Arizona's Law reported on a Court of Appeals case regarding Rep. Bolick and others who attend ALEC conferences; that case is likely to be appealed to the Supreme Court. Cases involving educational funding (Prop. 208, Prop. 307) are also either in front of the court or are likely to be.

The political/legal power couple has been the subject of recusal discussion in the past, including in the numerous cases involving the State Legislature. Rep. Bolick is the Chair of the House Ways & Means Committee. Justice Bolick did recuse himself in 2020 when the Court considered Rep. Bolick's use of a private mailbox on her nomination paper and petitions.

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.

Tuesday, February 15, 2022

BREAKING: AZ Appellate Court Reinstates Lawsuit Alleging ALEC Conference Violated Open Meetings Law (READ Opinion)

In 2019, a coalition of progressive groups sued the Arizona Legislature to prevent GOP lawmakers from secretly participating in bill-drafting discussions at the conservative ALEC conference in Scottsdale. After the fact, the Superior Court judge dismissed the case, deciding that it raised a "political question" it could not consider (among other defects).

Today, a three judge panel of the Arizona Court of Appeals reinstated the case. (It was a unanimous ruling, although Judge Samuel Thumma dissented to part of the reasoning.)

Writing for the court, Judge Jennifer Campbell concluded "(v)iewing the complaint in its entirety, we conclude the Appellants alleged sufficient facts from which a reasonable inference could be drawn that the legislators violated the Open Meeting Law. Accordingly, at this stage of the proceedings, the Legislature has failed to demonstrate that the complaint should be dismissed."

Puente and the other plaintiffs are alleging that because Republicans are currently in the majority in (both houses of) the Arizona Legislature, and most of them attend the annual conference of the American Legislative Exchange Council ("ALEC") - where they discuss and approve "model bills" in closed sessions - the Open Meetings laws are violated. Those model bills are later introduced as real bills in Arizona (and elsewhere).

Kory Langhofer and Tom Basile (Statecraft) represent the Arizona Legislature. Stephen Benedetto and Heather Hamel (The People's Law Firm) represent Puente and other plaintiffs.

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.


Thursday, February 10, 2022

BREAKING, THE HITS KEEP COMING: In TWO New Decisions, State Gets Hit With Attorneys' Fees Judgments For Legislature's Budget Log-Rolling (READ Stip, Minute Entry)

Trying to defend the Legislature's Olympian budget log-rolling performance of 2021 caused two new attorneys' fees awards this week. That is, the state must pay more than $177,000 to the City of Phoenix for its attorneys' fees and $67,500 to the Arizona School Boards Association for their fees.

The new awards are in addition to a $104,000 judgment entered in December to the ASBA (for the trial court fees) and possible future awards after the State appealed the City of Phoenix ruling.

Of course, those two cases also resulted in several of the Legislature's budget reconciliation bills being struck down as unconstitutional for rolling in too many unrelated measures (in order to pass a budget).

Today, Superior Court Judge John Hannah awarded $177,819.75 in fees, noting that the state did not dispute that Phoenix's firm (Perkins Coie) was entitled to a fee award. Arizona's Law previously reported that the Attorney General's Office instead tried to knock the award down to $105,000. Hannah was not impressed with their arguments. 

"The defendant’s comparisons between this case and others are not very helpful, even though they involve the same law firm. The Court simply does not have enough information about those other cases to draw valid conclusions. The Court does note that in the case the defendants refer to as “ABOR II,” in which the Court of Appeals cut the fee request on appeal by $30,000, the appellate court affirmed a separate trial court fee award of $979,758. That award makes the request here look quite modest.

The defendant’s “block billing” objections are likewise not well taken."

AG Brnovich's office has appealed the underlying decision striking down the Legislature's BRB, and his opening brief is due on February 28. (He appealed AFTER the Arizona Supreme Court had struck down other BRBs in the ASBA case.)

In that ASBA case, Superior Court Judge Katherine Cooper has already entered a $104,298.11 judgment against the state for fees. Today, the Arizona Supreme Court accepted a stipulation between the AG and the ASBA that the state would pay $67,500.00 to reimburse the ASBA's attorneys' fees (Coppersmith Brockelman) for the appeal.

$350,000.00. Not counting the many hours of time spent by the Attorney General's Office. And, not counting the likely fees for the state's 2nd appeal.

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: AZ Taxpayers Pay More Than $550K To Senate's Attorneys During Ongoing Election "Audit"; Not Done Yet

UPDATE, 3:50pm: The State Senate had generally budgeted only $397,000/yr for outside legal services before the past fiscal year. They bumped that up to $704,900, a 77% increase. They may even have gone over that amount - although they may have used some maneuvers to avoid an overage.

We reported earlier this week on the rare trifecta achieved by State Senate President Karen Fann - having the same legal case simultaneously active in the Superior Court, the Court of Appeals and the Supreme Court. The legal bills for the recent ping-ponging appeals and depositions are not yet known.

However, Arizona taxpayers coughed up more than $550,000 last year to pay for the State Senate's legal bills related to their subpoenas, the election "audit", and the ongoing failure to respond to public records requests. More than $505,000 of that went to the two-person law firm made up of Kory Langhofer and Tom Basile.

Statecraft - which also received more than $56,000 from the Republican National Committee in 2021 - accepted payments from the state irregularly throughout the year, but received a whopping check for $259,946.49 on November 30.




In addition, the State Senate paid attorney Alex Kolodin $33,295 for "legal services", and Cyber Ninjas' attorney Jack Wilenchik $17,004, both in October 2021. Although not necessarily for legal services related to the "audit", the Senate also paid attorney Bill Richards' firm more than $100,000. (The Senate has retained Richards in the years prior to the 2020 elections.)

(A sidenote: although you cannot see it in the screenshots above, the 2020-21 payments to Langhofer are attributed to four different budget years between 2018 and 2022. Perhaps state budget experts can explain this.) 

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: Arizona Supreme Court Instructs Trial Judge To "Promptly" Decide Prop. 208 Education Funding Case (READ Order)

UPDATE, 2/25 1:10pm: The Arizona Supreme Court today instructed Superior Court Judge John Hannah to "promptly" and "timely enter its order deciding" whether the Invest In Education Prop. 208 surcharge "will result in the accumulation of tax revenues that cannot be spent without violating the aggregate expenditure limit ("AEL")."

The en banc court says it will check back on March 14 to see whether Judge Hannah has issued his decision. Such a warning is very uncommon and underscores the unique and significant  issues surrounding this case. "IT IS FURTHER ORDERED that the superior court will promptly provide the Court with its order deciding the case...."

 

UPDATE, 2/10, 10:15pm: The Arizona Supreme Court is fast-tracking this Special Action. In an Order today, Duty Justice James Beene is giving Invest In Arizona until next Wednesday to file a Response, and the Petitioners will have two days to Reply. There will NOT be oral argument.

Original article, 2/10, 12:45pm: AZ Free Enterprise Club Leads Legislature, Governor Back To Supreme Court To Stop Education Tax Surcharge (Prop.208)

The opponents of Invest In Arizona's Prop. 208 are upset that Superior Court Judge John Hannah told them on Monday that he will not be rushed into ruling on an injunction against the education tax surcharge on wealthier Arizonans. They have brought both houses of the Legislature to file a Special Action with the Arizona Supreme Court, and Governor Doug Ducey has now jumped in in support.


The Supreme Court sent the case back to Judge Hannah to put the final nails in Prop. 208, with instructions to wait for the numbers to come in. The parties have been hashing it out since, and the Legislature/AZFEC/Governor say that all parties have stipulated that spending the revenues from Prop. 208 would put the state over the aggregate spending limit ("AEL"). The Justices had said if that was the case, the initiative would be unconstitutional.

The state is going over the AEL even without those additional revenues, and Republican opponents of Prop. 208 have been holding off on waiving the cap until getting Judge Hannah's opinion. On Monday, the judge said he would not be rushed.

The Supreme Court has not yet set a hearing.

The Free Enterprise Club and Legislature are being represented - at the Supreme Court only - by a trio of Dominic Draye (Greenberg Traurig), Brett Johnson (Snell & Wilmer) and Tim Sandefur (Goldwater Institute). Those attorneys are not involved in the Superior Court case, where AZFEC is being represented by Kory Langhofer and Tom Basile (Statecraft).

Ducey's amici brief was prepared in-house by General Counsel Anni Foster.

It is also worth noting that the Arizona Supreme Court also currently has under advisement an appeal involving the same parties. One of the Legislature's responses to the passage of Prop. 208 was to pass a flat(ter) tax measure to blunt the impact of the education surcharge. Prop. 208 proponents successfully collected enough petition signatures to put that on this November's ballot, and AZFEC appealed the Superior Court's decision denying a challenge to the ballot measure.

Here are the Special Action Petition and Gov. Ducey's amici brief.

 

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.

Wednesday, February 9, 2022

UPDATE: Supreme Court Justice Kagan Ghosts AZ AG Brnovich Re: Arizona Abortion Case

 Remember the holiday season? Yeah, me neither. Seems like forever ago.

On December 10, Arizona Attorney General Mark Brnovich's office asked the U.S. Supreme Court to impose a stay that would permit part of Arizona's most recent anti-abortion law to go into effect while the 9th Circuit considers the merits. The part of the law which could go into effect would outlaw abortions sought solely because the fetus has a genetic abnormality.

That Motion was assigned to the Supreme Court Justice assigned to handle such matters originating from courts in the 9th Circuit. Justice Elena Kagan. Typically, those are emergency matters ruled on quickly. Kagan asked the plaintiffs (represented by the ACLU and the Center for Reproductive Rights) to respond by Dec. 21 - which they did. Brnovich then submitted an unrequested Reply the following day.

Since then, crickets.

I am not going to speculate on the possible reasons for Justice Kagan's silence, although many thoughts come to mind.

U.S. District Court Judge Doug Rayes did not care to, either. He is the one who initially halted that portion of the law from going into effect, and he recently told the parties he is not going to stop the entire case while waiting for the 9th Circuit and/or the Supreme Court to rule on the so-called "Reason Regulation".

The parties are thus proceeding to begin the discovery process on both that and the "Personhood Provision", and have finished briefing the state's appeal in the 9th Circuit. (The Personhood Provision is currently in effect.)

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.

Tuesday, February 8, 2022

BREAKING UPDATE: AZ Supreme Court Puts Hold On Election "Audit" Records, 'Til April/May (READ Order)

BREAKING UPDATE, 2/15, 5:35pm: AZ Supreme Court puts a HOLD on Senate President @FannKfann needing to turn over election "audit" documents, will set it for oral argument in April/May. (READ Order)

Here are the issues the Justices want to consider: 

1. Did the Court of Appeals err in holding that the legislative privilege generally does not apply under the Gravel/Fields analytical framework to communications concerning the planning, execution, or results of the Audit, on the grounds that the Audit (a) does not relate to “pending legislation” or “other matters placed within the jurisdiction of the legislature,” (b) is an “administrative” function, and/or (c) is “political”?

2. Did the Court of Appeals err in holding that a prima facie claim of legislative privilege requires affirmative evidence of legislative impairment?

3. What is the nature and extent of the information that must be provided in a privilege log to invoke legislative immunity; and what is the burden on the party seeking disclosure to trigger in camera review?

Original article, 2/8, 5:50pmNEW MERRY GO ROUND: Pres. Fann Again Loads The Bases In "Audit" Public Records Fight, New Appeal

It is not easy to have one case simultaneously in front of the Superior Court, the intermediate Court of Appeals and the Arizona Supreme Court. Arizona Senate President Karen Fann has again pulled off that feat with her new Special Action Petition to the Court of Appeals.

The public records litigation is regarding the Senate's - and their Cyber Ninjas' - refusal to respond to requests for documents related to the election "audit" from last year.

After Superior Court Judge Michael Kemp consolidated the similar cases filed by the Arizona Republic and American Oversight, Fann tried to notice a change of judge. (The Senate and Ninjas' attorneys had tried to disqualify Judge John Hannah.) Kemp last week determined that they did not have a right to demand a new judge. His Minute Entry is below.

Fann's attorney, Kory Langhofer, yesterday filed a new Petition for Special Action (also, below), accusing Kemp of materially misstating the previous Court of Appeals decision which permitted Fann to present some of the documents to the judge for a private determination of whether they must be publicly disclosed.

Meanwhile, Langhofer has appealed that Court of Appeals decision to the Arizona Supreme Court, which is scheduled to conference on the matter in one week. And, Judge Kemp is presently considering whether to sign an Order from the Republic on preserving records that are at risk of disappearing. (Both the Ninjas and the Senate have objected to that proposed order.) The bases are loaded.

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, JUDICIAL CRISIS?: GOP Brushfire To Disqualify Superior Court Judge Hannah For Political Involvement Spreads, Judges Waver On How To Respond

Republicans' effort to disqualify Maricopa County Superior Court Judge John Hannah for his alleged bias has spread to another case, and Hannah's colleagues - including some with their own possible conflicts - are unsure how to respond. The wavering has already caused it to reach the Court of Appeals and threatens to delay a decision on whether the AZGOP (and its attorneys) must pay the AZ Secretary of State's office for fees incurred in a 2020 post-election case.

Confused? Let's try to break it down.

Last September, Judge John Hannah ruled that the AZGOP and its attorneys owed more than $18,000 to the Secretary of State's Office for one of the several post-election challenges. It was a blistering order. That award was appealed and the Court of Appeals has had it under advisement since November.

Last month, in an almost-unrelated case (about the public records generated by the State Senate's "audit" of the 2020 election), the Cyber Ninjas unsuccessfully tried to disqualify Judge Hannah for alleged political bias. Fellow judges pulled a nifty maneuver to avoid a substantive ruling on the disqualification motion.

The attorney on the hook in the AZGOP case is the same Jack Wilenchik who was unsuccessful in the Cyber Ninja case. Turns out, he quickly (and quietly) filed his DQ motion in the AZGOP case on Jan. 26, in an attempt to undercut the attorneys' fee award against him. But, this is where it gets even weirder.

On February 1 - before either the Secretary of State or Maricopa County could respond - Presiding Civil Department Judge Pamela Gates GRANTED the motion and removed Hannah. Yes, Gates is married to the Republican Chair of the Maricopa County Board of Supervisors Bill Gates. So, in the next breath, she recused herself from the matter.

The next day, Maricopa County objected to the Motion to Disqualify and Judge Gates VACATED the part of her previous order disqualifying Hannah but still sending it to Judge Warner for decision and/or reassignment.

On Feb. 4, Wilenchik used the confusion to file a motion with the Court of Appeals to SUSPEND their opinion-writing process on the attorneys' fees appeal until it could be seen whether Judge Hannah would be disqualified.

And, yesterday, Superior Court Judge Randall Warner used the appeal to DENY the disqualification motion without prejudice. "Because this matter is on appeal, the Court lacks jurisdiction to rule on the Motion. IT IS ORDERED denying the Motion without prejudice."

So, as it appears to stand now, Wilenchik is hoping the Court of Appeals will suspend its process and ask the Superior Court to re-rule on his Motion to Disqualify. If he succeeds there, he will seek to vacate the attorneys' fees award. 

ANALYSIS: However it turns out, though, this timeline demonstrates some real concerns (and divisions?) among the Superior Court bench over political involvement and relationships. And, one attorney's determination to fan those flames as it appears he may be burning bridges.

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.


Monday, February 7, 2022

BREAKING: Embattled Maricopa County Attorney Allister Adel Gets Hit With $10M Defamation Lawsuit By Scapegoated Prosecutor (READ Complaint)

A defamation lawsuit has been filed against embattled Maricopa County Attorney Allister Adel and the County, by a prosecutor alleging that she was scapegoated by Adel for controversial charges against 2020 protesters.

Prosecutor April Sponsel was put on leave nearly a year ago, and she says it was because "the media heat" prompted Adel to kick her "campaign of political self-interest... into gear." Adel made a series of statements to ABC15's Dave Biscobing and the rest of the media which painted Sponsel as the sole decision maker charging protesters as gang members. Sponsel documents in the lawsuit that the decisions were made by her and superiors and that Adel was aware of the case and initially had no concerns about it.

A key part of the lawsuit:

160. From that point forward, as the media heat turned up and Adel’s campaign of political self-interest kicked into gear, things got worse, a lot worse, for Sponsel.

161. Just three days later, on February 15, 2021, in an article titled “Politically Charged: ABC 15 Investigates Protest Prosecutions,” Adel began defending herself at Sponsel’s expense, rather than telling the truth about what had occurred before the Violent Protest Case Charges had been filed.

162. Adel intentionally and with purpose lied about what had occurred, making the following “prepared statements” to publically and falsely blame Sponsel as a lone rogue prosecutor who was solely responsible for filing the charges without her (Adel’s) knowledge or approval in violation of MCAO policies and procedures:

The Maricopa County Attorney’s Office is admitting prosecutors failed to properly vet a controversial case that resulted in a group of protestors being charged as a criminal street gang. …

Maricopa County Attorney Allister Adel said prosecutors did not follow procedures before bringing the charges and the case was not properly vetted.

As County Prosecutor, it is my expectation that complex and/or cases of public interest are reviewed by my leadership team at the county attorney’s office prior to charging. This practice includes a review of the facts and evidence by seasoned prosecutors and a robust discussion about the case in its entirety. It concludes with a determination if charges are appropriate and what those charges should be, so I can make a final charging decision …. 

In this case, this practice was not followed and at my direction, a review took place this past Friday, February 12. I participated in the review and ultimately decided to dismiss the charges in CR2020-139581. [Emphasis added.] (Copy of this widely reported article is attached as Exhibit 3 to this Complaint).

163. None of that was true, and, based on the facts, Adel made these prepared statements to the news media with actual malice, meaning that she knew what she said was false or acted in reckless disregard for the truth.

Sponsel is still on leave nearly a year later.

The defamation lawsuit filed (properly) does not request a certain amount of damages. However, the Notice of Claim filed last year demanded $10M.

Sponsel is represented by Tom Moring and David Farren at Jaburg Wilk. Moring tells Arizona's Law that they "have not had any productive dialogue with the County (since the Notice of Claim).  I am hopeful that will change now, and it seems like some of the recent stories put the events of our claim in a different light."

The Arizona Republic last week and today published investigations about how many people - including some of her biggest supporters - believe Adel has not been handling her responsibilities as Maricopa County Attorney, and how she has been struggling to maintain sobriety.

A recusal will likely be coming today or this week, as the case was randomly assigned to Judge Pamela Gates. Gates is married to the Chair of the Maricopa County Board of Supervisors, and Bill Gates spoke to the Arizona Republic about his concerns about Adel's personal well-being and performance (and his conversation with Adel).

Arizona's Law has reached out to the Maricopa County Attorney's Office for comment, and will update as necessary.

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.

Wednesday, February 2, 2022

BREAKING: AZGOP Chair Ward Sues Jan. 6 Committee and T-Mobile In AZ Court (READ Complaint)

 (This is a developing story. Please check back for further details.)

UPDATE, 4:35pm: U.S. District Court Judge Susan Brnovich has recused herself in the case filed yesterday by @AZGOP Chair @kelliwardaz & Michael Ward.

Brnovich's husband, @GeneralBrnovich declined to investigate the Wards for the fake electors document.
http://bit.ly/AZlaw1266
(Order recusing is below)

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.

Tuesday, February 1, 2022

NEW, SANDBOX RULES: Ducey and Brnovich Should Work Together To Sue US, Says DOJ Re: Dueling Rescue Plan Suits (READ Motion)

 Arizona Governor Doug Ducey and Attorney General Mark Brnovich have frequently gone there own ways on matters legal and political. But, when it comes to challenging the federal government's American Rescue Plan, the USDOJ is asking the court to force the elected officials to work together on one case.

Possibly last time Ducey and Brnovich seen together 

Brnovich filed his action last March, fighting the portion of the package that stated that states could not cut taxes if they were taking Rescue Plan monies. U.S. District Court Judge Diane Humetewa denied the request for an injunction against the provision, and the parties are awaiting a decision from the 9th Circuit Court of Appeals. (Video of Jan. 13's oral argument is below)

Two weeks ago, Governor Ducey filed his own challenge against the Rescue Plan in an attempt to salvage his plan to use some of the monies from the federal government to set up programs to provide vouchers to private schools which do not require face masks and to reward school districts that do not require students wear the masks. The federal government had threatened to claw back those funds.

The DOJ now wants the new case to be combined with the older one, and for Judge Humetewa to handle both. (Both judges were appointed by President Barack Obama, by the way.)

"With such a substantial overlap in parties and legal issues, there can be little doubt that relating these two cases under Arizona v. Yellen will advance judicial economy. Judge Humetewa is intimately familiar with the Rescue Plan, Treasury’s authority under that statutory scheme, and attendant standing and Spending Clause issues in this context.  There is no reason for Judge Logan to engage in a “duplication of labor” to do the same."

Ducey's and Brnovich's attorneys will have the chance to respond, and to decide whether to work together on the matter(s).

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.

Secretary of State and Union Group File Separate Suits To Force Cochise County To Certify Election

 ( This is a developing story. Please check back later for updates .) "AZ Law" includes articles, commentaries and updates abo...