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, 5:50pm: NEW 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. 

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