Wednesday, August 31, 2022

BREAKING: Maricopa County Presses Forward For Sanctions Against Kari Lake/Mark Finchem/Alan Dershowitz

The Kari Lake/Mark Finchem lawsuit seeking to require a hand count of all Arizona election results may have been dismissed last week, but Maricopa County is moving forward asking the judge to sanction the pair - and their attorneys, including Alan Dershowitz - for the "baseless and frivolous allegations" made in the case.

The dismissal states that the case was closed "in its entirety", but does not specifically mention the outstanding Motion for Sanctions previously filed. Although the County has not yet asked the Court to clarify, today's Reply (below) can be seen as a reminder to District Court Judge John Tucci.

Plaintiffs’ Response in Opposition (the “Response”) further demonstrates the frivolous nature of this suit and sanctionable conduct on the part of Plaintiffs’ counsel. The Response regurgitates the same baseless allegations in the First Amended Complaint (“FAC”), and claims factual allegations in the FAC do not have their plain meaning. Moreover, the Response itself contains numerous misrepresentations, providing further bases for an award of sanctions.

 Finchem and Lake's case was set up to require that Arizona use paper ballots in November's election and that there be a hand count of those ballots. To do that, they repeatedly claimed and insinuated that Arizona does not use paper ballots - that is not the case and Tucci's dismissal notes that it is both the law and the practice to use paper ballots.

Maricopa County based its Motion for Sanctions on those misrepresentations and attempts to hoist Finchem and Lake up on their own petard in the Reply. Noting that Plaintiffs relied heavily on a similar Georgia case, Maricopa County notes that the Georgia judge explicitly noted that Arizona is a prime example of a state using paper ballots and having the auditable trail, and that Finchem and Lake did not inform the judge of that.

This continues a very bad week for Finchem - the Republican candidate for Secretary of State. He was found responsible for $75,000 in attorneys' fees for a meritless defamation case he (and Paul Gosar and Anthony Kern) filed against Charlene Fernandez relating to January 6 involvement.

 This article was reported by AZ Law founder Paul Weich. Paul was 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: Maricopa Audit Document Disclosure Case Continues, Supreme Court REVERSES Lower Courts (READ Opinion)

BREAKING: Arizona Supreme Court EXPANDS Legislative Privilege on "Maricopa Audit" documents, REVERSES lower courts, gives @FannKfann 2nd chance to better describe "legislative acts" B4 turning over for in camera review.

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

This article was reported by AZ Law founder Paul Weich. Paul was 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, August 26, 2022

BREAKING: Fair Elections Initiative THROWN OFF the ballot after judge re-checks his work (READ Amended Judgment)

UPDATE, 3:55PM: The Arizona Supreme Court has AFFIRMED Judge Mikitish's amended decision from this morning to remove the Fair Elections Initiative from the November ballot. The snap decision comes despite several questions pertaining to the re-worked arithmetic (more details below)

The hanging-by-a-thread voters' initiative called Free and Fair Elections is now OFF OF THE NOVEMBER BALLOT, after Superior Court Judge Joseph Mikitish was told by the Arizona Supreme Court to (quickly) explain his math.


The case - brought by the dark money Arizona Free Enterprise Club - has bounced back and forth between Superior Court and the Arizona Supreme Court. There were a number of objections raised to the paid ciruclators' registrations and other issues. A Special Master was brought in to sort through the objections and the numbers, and Judge Mikitish issued a ruling last week. The AZFEC appealed to the the Supreme Court. After the Supreme Court upheld some of the rulings and reversed others, it was sent back to Superior Court. Yesterday, Mikitish issued a decision saying that the measure qualified, and plaintiffs renewed their appeal.

Last night, the Supreme Court ordered Mikitish to explain his math by this morning, so that they could decided by this afternoon. 

Judge Mikitish re-did his math, caught a couple of mistakes, may have added some new mistakes and added new rulings to conclude that the initiative falls short of the 237,645 required to be on the November ballot. Here is a fuller explanation:

No word yet from the attorneys for the proposed initiative as to whether they will challenge this morning's about face.

(Thanks to GOP political consultant Brian Murray for sending a copy of the Amended Final Judgment.)

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


This article was reported by AZ Law founder Paul Weich. Paul was 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, Enough's Enough: Lake-Finchem Suit To Hand Count DISMISSED; Judge Blasts: "...only conjectural allegations of potential injuries" (READ Order)

(UPDATE, 11:30am: We have added Lake/Finchem Response to sanctions motion, bottom.)

Arizona will count the paper ballots with machine tabulators for - and, against - candidates Kari Lake and Mark Finchem. Just as we have for all elections in recent memory.

U.S. District Court Judge John Tuchi gave the Republican candidates (for Governor and Secretary of State, respectively) several opportunities to prove why he should force a hand-count of millions of ballots and many different races, but he finally said enough is enough and dismissed their case today.

In concluding his 21-page dismissal order, he boiled it down to a number of defects, only agreeing that citizens' right to vote "is precious": "Plaintiffs’ First Amended Complaint is dismissed in its entirety. While the Court agrees with Plaintiffs that the right to vote is precious, and should be protected, Plaintiffs lack standing because they have articulated only conjectural allegations of potential injuries that are in any event barred by the Eleventh Amendment, and seek relief that the Court cannot grant under the Purcell principle."

A Motion for Sanctions - filed by Maricopa County - against Lake, Finchem and their attorneys (including the nationally-known Alan Dershowitz) is still pending. Lake and Finchem filed their Response earlier this week. It spends a lot of space denying that the now-dismissed Amended Complaint misleadingly gives the impression that Arizona does not use paper ballots. However, their many allusions to paper ballots includes this quote: "Billions of federal dollars were spent to move states, including Arizona, from paper-based voting systems to electronic, computer-based systems."

This article was reported by AZ Law founder Paul Weich. Paul was 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, August 19, 2022

NEW: AZ Supreme Court Explains How It Decided To Throw "Invest In AZ's" Flat Tax Referendum Off November Ballot (READ Opinion)

The Arizona Supreme Court released its Opinion this morning explaining how it decided to remove Invest In Arizona's referendum of the flat tax from November's ballot. Its conclusion relies upon Arizona's 1910 Constitutional Convention and a 1992 Court of Appeals decision.


The opinion was authored by Justice John Lopez and joined by four other justices. Justices Bill Montgomery and James Beene separately wrote that reliance on the1992 Greenlee County decision was not necessary. 

Arizona is among a minority of states that gives citizens the power to refer a new law (a "REFERendum")  to the ballot for the electorate to decide. The Constitution excepts a few types of measures from being referred. One of those types: "except laws immediately necessary...for the support and maintenance of...state government".

In 2020, Arizona voters passed Prop. 208 ("Invest In Ed"), which called for a new tax surcharge on wealthy Arizonans to help fund education. In 2021, the Arizona Legislature passed three separate laws to reduce the revenue and support for education by un-doing the voters' measure . Invest in Arizona - largely funded by the Arizona Education Association and Stand for Children - tried to collect referendum petition signatures to stop all three, but only succeeded in placing the flat tax measure onto the 2022 ballot. In April, the Supreme Court removed it, and today's Opinion is the full explanation of how they reached that decision.

(Later in 2021, the Supreme Court also struck down the underlying Prop. 208 surcharge, meaning that the Republican Legislature's workarounds - including the flat tax - were unnecessary but still in place.)

The Court today notes that the 1910 Constitutional Convention *removed* the word "appropriations" from the (above-cited) exceptions clause. No reason was given, but today's Court believes it must have been intentional. Lopez then leans on Wade v Greenlee County (1992) to conclude that "support" refers to "both the acquisition and allocation of funds."

We reject the notion that section 1(3)’s reference to “support and maintenance” is synonymous with “appropriations.” Measures that provide “support and maintenance” include laws that raise or disburse revenue, while “appropriations” merely disburse revenue generated through laws for support and maintenance.

The Supreme Court opinion also concludes that it did not matter that the flat tax measure *reduces* the support for education. " The net revenue impact of a bill in the short term may invariably differ from its long-term effect. Thus, all revenue measures that support and maintain existing state departments and institutions, including those that decrease net revenue, are exempt from referendum.4" (The footnote suggests that they are not saying whether a legislative effort to *eliminate* a tax would qualify for exemption from referendum.)

This article was reported by AZ Law founder Paul Weich. Paul was 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, August 10, 2022

BREAKING: Maricopa County Goes For Sanctions Against Kari Lake, Mark Finchem, Attorneys For Claiming No Paper Ballots In Arizona (READ Motion)

 In a political and legal bombshell, Maricopa County has asked the Court to impose sanctions against Plaintiffs/candidates Kari Lake and Mark Finchem - as well as against their attorneys. The Motion is primarily based on the "repugnant" use of the courts to further undermine democracy and the frivolousness of them claiming that Arizona voters do not cast our votes on paper ballots.

Mark Finchem and Kari Lake

Lake and Finchem have asked the Court to prevent any machines from being used in the upcoming November election. 

This is false. Arizona law requires paper ballots. Either Plaintiffs’ counsel failed to do the bare minimum factual investigation required by Rule 11 - speaking to their own clients who have each voted on paper ballots for nearly 20 years - or they knowingly alleged the fact anyway and pursued these frivolous claims anyway. Under either scenario, Plaintiffs and their counsel violated Rule 11.

Lake is the Republican nominee for Governor, and Finchem for Secretary of State. The County - Arizona's largest - is controlled by a Republican Board of Supervisors and a Republican County Attorney. 

In fact, the Motion notes that Finchem and Lake themselves have long used PAPER BALLOTS to cast their votes in Arizona; thus, they *know* that their claims are false. The County claims that Lake and Finchem are doing this to "for the improper purpose of undermining confidence in elections and to further their political campaigns.

The Motion went on to blast the rest of Lake's and Finchem's case. 

Moreover, the entire foundation of Plaintiffs’ case – the alleged need for court intervention to implement their preferred method of ballot tabulation because they fear possible, invisible, undetectable invaders into Arizona counties’ ballot tabulation equipment that will allegedly improperly manipulate the vote count – is based purely on speculation, conjecture, and unwarranted suspicion. Because no actual facts or evidence exist to support Plaintiffs’ assertion that tabulation equipment ever has or will incorrectly count ballots in Arizona, to support their claims Plaintiffs’ FAC instead sets forth demonstrably false allegations made without any basis or reasonable factual inquiry in violation of Rule 11. Fed. R. Civ. P. 11(b). Likewise, Plaintiffs’ counsel violated both Rule 11 and 28 U.S.C. § 1927 by unreasonably multiplying the proceedings with their untimely and unsupported MPI filed months after filing their initial Complaint and after the County filed its MTD.

In addition to Lake and Finchem, the Motion seeks sanctions against their attorneys, a team which includes the nationally-known Alan Dershowitz.

Maricopa County is represented by outside counsel Emily Craiger and attorneys in the Maricopa County Attorney's Office. Appointed County Attorney Rachel Mitchell is a Republican currently seeking election to a full term heading the office. 

The Motion notes that they first raised the possibility of a Rule 11 sanctions motion in May, and that the parties met and conferred about it twice; The Plaintiffs refused to back down from the probably false assertions. In fact, the Motion claims Finchem and Lake "doubled down" when they then filed for a preliminary injunction.

A lengthy evidentiary hearing on the preliminary injunction was held on July 21, and the parties are awaiting a ruling from U.S. District Court Judge John Tuchi.

(This is a developing news story. Please check back for 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.

Monday, August 8, 2022

UPDATE: Opponent Claims Scottsdale Resident Kevin Robinson Ineligible For Phoenix City Council; Expedited Appeal Filed With AZ Supreme Court

Phoenix City Council candidate Moses Sanchez is asking the Arizona Supreme Court to decide whether opponent Kevin Robinson resides in the district or in neighboring Scottsdale. The Court will rule next week.

The appeal was filed Friday afternoon, after Superior Court Judge Scott McCoy ruled on Wednesday that the evidence shows that Robinson had moved to Ahwatukee last year, even while the rest of the family had not. Phoenix City Code gives some guidance on the residency requirement, and McCoy came down on Robinson's side even while noting some skepticism because the thermostat was typically "set at relatively high temperatures".

The relevant Code section: "If a person’s family resides in one place and the person does business in another, the former is the person’s place of residence. However, a person whose family resides in one place, but who has moved to another place with the intention of remaining there, shall be regarded as a resident of the place to where the person has moved."

The Supreme Court has asked for briefing to be completed by next Wednesday, and - as is customary in these expedited election appeals - they are not setting oral argument.

Sanchez is represented by Jack Wilenchik and Robinson by Dan Arellano.

Here is Judge McCoy's ruling:

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 - TRYING TO UNTANGLE ARIZONA'S ABORTION KNOT: Doctors Tell Judge Why Arizona's 2021 Abortion Ban Must Be Stopped In Light Of Renewed 1864 Ban (READ Motion)

 Abortion providers and advocates - and, their attorneys - continue to press multiple judges to help untangle the knot of overlapping aborti...