Saturday, December 31, 2022

THE LATEST On the Kari Lake Election Contest Appeal

UPDATE, 1/18, 9:30am: Kari Lake's appeal "mischaracterizes...misrepresents and misconstrues". That is the opening theme in the Answering Briefs filed last night by Maricopa County and now-Governor Katie Hobbs. 

The two briefs - totalling 70+ pages, not including a couple of hundred pages of attachments - take different approaches in responding to Lake's appeal. Hobbs' attorneys set forth what they see as the relevant law to convince the three Court of Appeals judges to affirm Judge Peter Thompson's denial of the Election Contest to declare Kari Lake the winner of November's gubernatorial election. Maricopa County "focuses on setting the record straight and defending the County’s lawful practices concerning ballot-on-demand printing and chain of custody."

Because Lake is appealing both the dismissal of several counts before trial and the denial of relief after trial, Hobbs' Brief goes count by count in defending Thompson's decisions.

The trial court did not err in finding that Lake’s contest fails at every level. First, the trial court applied the correct legal standard, requiring Lake to show by clear and convincing evidence that absent intentional misconduct by Maricopa election officials, Lake would have won. Second, Lake failed to show—by any legal standard—that Maricopa election officials committed any misconduct related to tabulators (Count II) or chain of custody (Count IV) or that any alleged misconduct would have altered the outcome of the election. Third, the trial court did not abuse its discretion in finding that laches bars Lake’s signature matching claim (Count III), which otherwise fails as a matter of law. Fourth, the trial court did not err in dismissing claims brought outside Arizona’s election contest statute (Counts V and VI), which also fail as a matter of law.

Maricopa County says Lake's arguments about in-person election day voting are based on "blatant falsehoods." "It (the judges) should also rest assured that these ballots were ultimately counted because Arizona’s elections administration—like that of jurisdictions around the country—contains numerous redundancies to ensure that lawfully cast votes are counted.

The Answering Briefs, and Lake's Opening Brief, are below. (Scroll down for the Opening, which is titlted "Petition for Special Action".) Lake has until next Tuesday to file a Reply. Then, the panel of judges (Cruz, Swann, Cattani) will hold a closed door conference on the appeal on February 1.



UPDATE, 1/10, 8am: The Arizona Court of Appeals has folded Lake's "Special Action" into her earlier appeal, and has pushed back its internal conference on the case by one week, to February 1. The Court did NOT schedule oral argument, although they still have that option.

Defendants have until Jan. 17 to file their Answering Brief, with a Reply due the following week. The Court also substituted one of the three judge panel, inserting Chief Judge Kent Cattani for Judge Angela Paton.

UPDATE, 1/4, 4:50pm: The Arizona Supreme Court today REFUSED to grab Kari Lake's Election Contest appeals from the intermediate level Court of Appeal. The Order is signed by Duty Justice John R. Lopez IV, but he specifically notes that the entire Court considered the matter. 

"The Court notes that the Court of Appeals has entered a scheduling order directing respondents in the special action proceeding to file a response and has indicated that the matter will be conferenced, with possible oral argument, on January 24, 2023. No good cause appears to transfer the matter to this Court."

ANALYSIS: This seems to be an indication that the AZ Supreme Court does not see Lake's appeals as being very well-taken. If they were inclined to agree, they would have wanted to grab it and issue an opinion. (--PW)

TO CLARIFY: this does NOT mean the AZ Supreme Ct ruled on the MERITS of Lake's appeals. Only that they did not see it as important enough for them to take the case away from the Ct of Appeals (and take it for themselves). It is STILL in the Court of Appeals, semi-fast-tracked.

UPDATE, 1/4, 8am: The Court of Appeals is giving new Governor Katie Hobbs - and, the other defendants - until next Wednesday to respond to one of Kari Lake's two appeals. A conference - and, possibly oral argument - is set for January 24. The Special Action Petition was filed over the holiday weekend. (The Opening Brief in the other is not due until Feb. 28, as Lake's attorneys did not ask to expedite it.)

Meanwhile, the Arizona Supreme Court has not yet decided on whether to grab that Special Action and the earlier appeal. It was docketed yesterday as the 10th - and, final - such transfer petition of 2022. (The previous one - contesting the voter-passed "Predatory Debt Collection Protection" initiative - was DENIED.)

***

UPDATE, 1/3, 9:30am: Now that the courts are open for the new year, we have CONFIRMATION that @KariLake's attorneys have TWO separate appeals of last week's Election Contest loss.

The Court informs us that the panel assigned to review Special Actions "has been notified". We also expect action on Lake's effort to leapfrog both cases directly to the Supreme Court.

12pm: And, here is the Petition to Transfer BOTH appeals to the Arizona Supreme Court.

There is a reported Kari Lake appeal Petition circulating on the internet on this New Year's Eve. This appears to be filing a Special Action Petition filed with the Court of Appeals, challenging the dismissal of three of the ten Counts in her Election Contest action and the denial of the two Counts which were the subject of the two-day Evidentiary Hearing.

Because her Notice of Appeal had been filed on Wednesday and indicated that she would (1) challenge all 10 Counts and (2) be presented to the Arizona Supreme Court, and because we cannot confirm whether this Petition has actually been filed, we are not yet publishing it.

We have reached out to Lake's attorneys for more information. The public docket for the Court of Appeals is only updated once a day after the close of business, and does not show the filing. We have learned that Lake's attorneys did email an unconformed copy of the Petition to Defendants' attorneys on Friday night and claimed that it had been filed. No case number was provided. 

We have previously discussed the expedited nature of elections-related appeals, and in the case of Election Contests, it is up to the appealing party's attorneys to ask that it be expedited. We have also discussed that Arizona has a 1917 precedent of the appeal proceeding past the inauguration date - a successful Contest removed Campbell after several months in the Governor's Office.

Once we have ascertained the status of Lake's case, we will update this page and publish the filings.

In the meantime, have a very Happy New Year's weekend!

"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, December 30, 2022

UPDATE: AZ Supreme Court Won't Extend Deadline To Appeal Abortion Ruling; Turns Down Anti-Abortion Group's Request

UPDATE, 1/20, 4:30pm: "AZ Supreme Court Won't Extend Deadline To Appeal Abortion Ruling; Turns Down Anti-Abortion Group's Request"

The Arizona Supreme Court this afternoon rejected an anti-abortion group's request to extend the deadline to appeal last month's ruling permitting Arizona physicians to still perform abortions pursuant to Arizona restrictions. Today's order does not prevent the Alliance Defending Freedom from re-asking for an extension until March 1, or asking the justices to re-consider the ruling before the current January 30 deadline.

The Court of Appeals decision last month (below) found that the Territorial-era ban on abortion procedures did not obliterate years of post-Roe/pre-Dobbs restrictions passed into law.

Although not a party to that case, ADF filed a Motion last week asking the Supreme Court to give them an additional month to prepare a Petition for Review because of a heavy workload. They are seeking to intervene on behalf of an Arizona physician, Eric Hazelrigg.

After inquiries from Arizona's Law, the Supreme Court Clerk's Office rejected the extension request, noting that ADF had not followed proper procedures. That Order - and, the Motion - are posted below.

Yesterday, we reported on a separate abortion-related case, in which a federal judge refused to stop one of those post-Roe/pre-Dobbs restrictive laws - the 2021 law prohibiting an abortion procedure if the sole reason is because of a prospective genetic abnormality.


***

ORIGINAL ARTICLE, 12/30, 4:30pm: "Physicians CAN Perform Abortions In Arizona, Appeals Court Rules; Declines To Repeal"

A unanimous three-judge panel from the Arizona Court of Appeals ruled this afternoon that Arizona physicians CAN Perform Abortions, despite the U.S. Supreme Court's repeal of Roe v. Wade putting Arizona's territorial-era complete ban of abortions back into effect.

The opinion is a victory for Pima County and Planned Parenthood, and a defeat for outgoing Arizona Attorney General Mark Brnovich.

The court agreed that the subsequent laws passed by the Arizona Legislature over the years regulating physicians' performance of abortion procedures - including this year's 15-week ban - made it clear that those elective abortions are permitted under law, despite the renewed complete ban.

Writing for the court, Chief Judge Garye Vasquez wrote that "(r)eading § 13-3603 to impose criminal liability for physicians providing those restricted abortions would eliminate the elective abortions the legislature merely intended to regulate under Title 36."

There are still plenty of knotty issues to resolve about Arizona's mosaic of abortion-related restrictions. Another case is pending in both U.S. District Court and the 9th Circuit over the Legislature's 2021 anti-abortion law.

"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: @KariLake's Election Contest APPEAL is now in front of the Court of Appeals

 BREAKING: @KariLake's Election Contest APPEAL is now in front of the Court of Appeals, with non-expedited briefing in January and Feb.

It is possible efforts will be made to expedite and/or bring it directly to AZ Supreme Ct.

"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.

SANCTION SCOREBOARD UPDATE: Up Is Down As Finchem Attorney Argues Court Should Punish Defendants For Moving For Sanctions (After Court Invited Them To File); READ Response

UPDATE, 1/9, 8am: "SANCTION SCOREBOARD UPDATE: Up Is Down As Finchem Attorney Argues Court Should Punish Defendants For Moving For Sanctions (After Court Invited Them To File); READ Response"

In an 18-page head-spinner, Mark Finchem's I'm-ready-to-retire-before-I'm-disbarred attorney throws the kitchen sink at Superior Court Judge Melissa Julian to try to stave off sanctions. The Opposition filed late last week (and posted publicly for the first time below) starts off with a false statement and ends asking the judge to sanction the defendants instead.

In between, attorney Dan McCauley* oddly cites a securities statute as *the* "applicable statute" (rather than Rule 11 or A.R.S. §12-349).** He alternately argues that Arizona Rules of Civil Procedure do not apply in this case and do apply in this case. The latter is a subject which McCauley (unsuccessfully) argued with Judge Julian on the motions to dismiss the Election Contest.

The claim that "literally hundreds of thousand of (voters) then entered properly completed ballots into tabulation machines that repeatedly rejected those votes" is a fabricated statement that also falsely implies that those voters' ballots were not counted. 

Chandler attorney Tom Ryan tells Arizona's Law "the only cogent argument is that Mr. McCauley is an old guy about to retire is the only proper consideration the court should make when deciding what to do with sanctions. And what she should do is make all the sanctions awardable against Finchem."

In fact, McCauley argues that sanctioning Finchem - a state lawmaker who lost his race for Secretary of State - should not be sanctioned, either, because it is "an improper, devious, bad faith scheme" which the "less obvious goal is to jeopardize his ability to finance his pending appeal."

That reference is to the dismissed Mark Finchem/Kari Lake pre-election suit to force Arizona to conduct last year's elections without any electronic machines. Lake/Finchem appealed the dismissal to the 9th Circuit and say they intend to bring it to the U.S. Supreme Court because it "is an important matter to the Nation and Mr. Finchem must not be deterred by a sanction from helping to fund the matter."

Of course, that is also the case in which Finchem's  and Lake's attorneys are facing $140,000 in sanctions." (More on that case can be found below.)

In his closing, McCauley asks the court to both forbid defendants' attorneys from filing the permitted Reply and to sanction them for their "frivolous" Motion for Sanctions.

The Motion - appropriately - does not ask for a specific amount. Rather, it asks for Finchem and McCauley to be jointly and severally liable for attorneys' fees and costs, and an additional penalty of $5,000 (A.R.S. §12-349).** The Motion and the Judge's Minute Entry can be found here.

* There is legitimate question as to whether McCauley himself wrote this filing. He consistently refers to himself in the third person and several statements do not appear likely to come from a longtime attorney. Arizona's Law has asked him about this and will supplement as warranted.

** The Response states "Here, the applicable statute is clear and unambiguous. A.R.S. §44-2083  Sanctions for Abusive Litigation, addresses sanctions under ARCP Rule 11 and any applicable Title or Section of the Arizona Revised Statutes. Section D(1) of A.R.S. 44-2083 states in pertinent part that no award of sanctions or attorney’s fees can be imposed if it will impose a burden on a party or attorney and would be unjust, and the failure to make an award would not impose a greater burden on a party in whose favor a sanction would be imposed."

The first words of that statute read "In any private action arising under this chapter...." This chapter is *only* about securities litigation. Neither Rule 11 nor A.R.S. §12-349 contain a clause about considering "burden".

UPDATE, 1/4, 3pm: "Dershowitz Shouldn't Be Allowed "To Avoid The Consequences of His Actions", Maricopa County Tells Judge"

(Correction: An earlier version of this article incorrectly identified Lake's co-plaintiff as Abe Hamadeh. The correct co-plaintiff is (was) Mark Finchem.)

You're too late, and you should be looking at yourself and your own co-counsel, anyway. That is the summary of Maricopa County's quick response to Alan Dershowitz today.

Just before New Year's, the nationally-known attorney - who was part of the team representing Kari Lake and Mark Finchem in their pre-election (but dismissed in August) federal lawsuit to change how Arizona's November elections would be held (and votes counted) - tried for the first time to distance himself from the case.

Dershowitz claimed he was just a consultant for a small piece of the litigation puzzle and should be released from liability for the sanctions imposed by Judge John Tuchi. (The amount has not yet been set, but Maricopa County has asked for $141,000 to cover their attorneys' time.)

Maricopa County today told Tuchi that the pleadings - including the September Response to the sanctions motion - indicated that Dershowitz had given permission to say he was one of the attorneys signing off on the Plaintiffs' filings. Therefore, Dershowitz should actually be forcing his co-counsel to defend the digital signatures.

The County concluded: "This Court should not allow Dershowitz to avoid the consequences of his actions. He participated in the attempt to frivolously discredit Arizona and Maricopa County. He should be held responsible."

Today's Response even cites Arizona's Law's first article on Dershowitz's involvement in the case. We had asked Dershowitz about the glitch in his pro hac vice application in the case. He told us "Just a technical glitch in my pro hac application. It’s being fixed." We reported that, and Maricopa County uses it to highlight he would not have needed to apply to be approved to represent the plaintiffs if he was just a consultant.



(Interestingly, one of our questions to Dershowitz in May was about his involvement in other Arizona elections-related lawsuits. He was also listed as "pro hac vice applciation pending" - but not solely as "of counsel" - in the Arizona Republican Party's ill-fated Mohave County lawsuit claiming that Arizona's mail-in early voting system was unconstitutional.)

Judge Tuchi has yet to rule on Dershowitz's request.


ORIGINAL ARTICLE, 12/30, 9:45am: "SANCTIONS SCOREBOARD UPDATE: Lake/Finchem/Attys Aim To Reduce Sanctions From Pre-Election Lawsuit; Alan Dershowitz Aims To Get Out Of Them"

Kari Lake and Mark Finchem's attorneys in the pre-election lawsuit have explained to the judge why he should reduce the $141,000 in sanctions to Maricopa County taxpayers, or let him (Dershowitz) out of the penalty.

After previously dismissing the case with a scathing Order, U.S. District Judge John Tuchi ruled in favor of Maricopa County's request for sanctions. He told Plaintiffs' attorneys they could only respond about the appropriateness of the amount requested by the County.

As Arizona's Law's readers know, the nationally-known Alan Dershowitz was part of Lake and Finchem's legal team*. He filed a separate Response last night, as well as asking the Court to make Maricopa County prove why he should be on the hook for the sanctions.

Dershowitz - separately represented by Phoenix attorneys Dennis and Jack Wilenchik - argues that he was only retained by MyPillow's Mike Lindell to be "a consultant to Mr. Lindell’s primary legal team on First Amendment and related constitutional issues." That is in the Lindell defamation case; in this case, Dershowitz specifically developed the argument that there is a constitutional issue when a government retains a private company to help with elections, but then shields details on grounds of business secrets.

The filing also points out that Dershowitz is a "liberal Democrat who has almost never voted for a Republican candidate," and that he never challenged the results of the 2020 elections (including in Arizona).

(Dershowitz had had an opportunity to make the "I'm just an of counsel consultant" argument when Maricopa County first requested sanctions months ago. It is not yet clear whether the judge will listen to that now.)

The other attorneys followed Judge Tuchi's Order and focused on the time entries produced by Maricopa County's in-house and outside counsel. They did not ask for a specific reduction, but left that determination for the judge. (Judges love going through time entries. <sarcasm>)

(This is one of several active cases in which Finchem, Lake, attorneys and others opposing Arizona election laws and outcomes may be sanctioned. Here is our periodically-updated Sanctions Scoreboard.)

Next up: Judge Tuchi will approve or deny Dershowitz's request to make Maricopa County argue why the 84-year old attorney with medical conditions should be held jointly responsible. Tuchi will also rule on the appropriateness of Maricopa County's $141,000 application.

*He had some difficulty getting his application to join the team in Arizona court filed.

"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, December 29, 2022

UPDATE, ANALYSIS: Hamadeh, Atty Struggle To Find Way To Keep Hope Alive; Ask Judge To Sign Order That He Lost Contest (READ Minute Entry, Filing)

Kris Mayes will be Arizona's next Attorney General, after receiving only 280 votes more than her Republican competitor, Abe Hamadeh. Out of more than 2.5 million votes cast.

Hamadeh is not conceding. Instead, he and his attorney - Tim LaSota - are struggling to find a pathway towards finding more votes.

When Hamadeh lost his Election Contest trial on Friday, LaSota told Judge Lee Jantzen not to worry about rushing to sign a final order which would allow Hamadeh to appeal. Judge Jantzen understood and appreciated his - and, his staff's - ability to enjoy a long holiday weekend.

However, the lack of a final order started to complicate Hamadeh's and LaSota's efforts to prepare for today's announcement of the final results of the automatic recount. Early Wednesday, Judge Jantzen filed his unsigned Minute Entry with his ruling (below). LaSota tried to get opposing counsel to stipulate to an Order for the judge to sign dismissing the Contest; Mayes' attorneys objected. LaSota filed a late afternoon Motion for an Order (below).

LaSota's Motion came about the same time that word leaked out that Hamadeh might be picking up some votes from a rural county in the recount, but not enough to overtake Mayes' 511 vote lead.

And, first thing this morning, LaSota filed a Motion to try to stop (or, "Stay") the announcement of the recount results. The reason? He wants to appeal the lost Election Contest. 

This was also loaded with irony, because Hamadeh has been blasting outgoing Secretary of State/incoming Governor Katie Hobbs for improperly sitting on the recount results from each of the 15 counties. From the Motion (published in its entirety, below):
"The Secretary of State has pushed for certification of this matter despite the extraordinarily close nature of this race and the significant questions, which will only be amplified if media reports of a large swing in votes towards Mr. Hamadeh are true. If media reports suggesting a significant swing to Mr. Hamadeh are unfounded, this Motion, along with the Motion to Intervene, will be withdrawn."

Judge Tim Thomason denied the Motion to stop the recount results from being announced, and promptly opened the envelope. It did show a net gain for Hamadeh, mainly from more votes counted in (semi-rural, semi-suburban) Pinal County.

Hamadeh and LaSota will likely try to use the even-closer margin to support their Election Contest appeal. But, they had not planned to appeal it until today, and are scrambling to get Judge Jantzen to sign an appealable order or to file an appeal without it. (We have reached out to the courts for updates.)

And, given that they presented *very* limited testimony and evidence last Friday in the evidentiary hearing, on only one of their Counts, the issues for them to appeal on are quite limited.

While LaSota continues to try to walk the legal tightrope, Hamadeh is continuing to spread misinformation on his social media platforms. This afternoon, he accused Hobbs - and, her attorneys - of "deceiv(ing) the courts". (That is a very serious charge for an attorney - let alone one seeking to be Attorney General - to make against another attorney.)

"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 Recount Finds In Favor Of Kris Mayes For AG - By 280 Votes!

 

"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, December 28, 2022

ARIZONA'S LAW SHORTS: CONFIRMED: Bo Dul is General Counsel for Governor Katie Hobbs

UPDATE, 1/3, 4:45pm "CONFIRMED: Bo Dul is General Counsel for Governor Katie Hobbs": Gov. Hobbs' office confirmed this afternoon that Bo Dul is her new General Counsel.

ORIGINAL STORY, 12/28: Fmr State Elections Director Bo Dul Withdraws From Elections Lawsuits; Announcement Forthcoming? 

Bo Dul today filed notices of withdrawal from her work on several elections cases. Dul is Senior Counsel at the States United Democracy Center, and earlier worked as the State Elections Director and General Counsel under Gov.-Elect Katie Hobbs at the Secretary of State's Office. 

It is likely that she withdrew from the cases because she has accepted a some - maybe, the same - position in the Governor's Office.

Arizona's Law has reached out to Dul for comment, and will update as warranted.

"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, December 26, 2022

SANCTIONS SCOREBOARD: Keeping Track Of Arizona's 2020-22 Election Case Aftermaths

UPDATE, 12/27, 12pm: Judge DENIES SANCTIONS against @KariLake  for her failed Election Contest, but will have to repay taxpayers $33,040 for costs.

Key paragraph:

Local attorney Tom Ryan tells Arizona's Law that Judge Peter Thompson might be trying to discourage Lake from appealing his decision denying her Election Contest.

"The defendants might consider appealing the denial of attorneys fees ruling. Unfortunately, since it is a factual finding, rather than a purely legal finding, they will have to show that the determination by Judge Thompson was arbitrary, irrational and capricious," Ryan said. "In reading the entire ruling it appears to me that Judge Thompson was trying to strike a balance to remove the incentive for Lake to appeal, and to bring finality now to the process given that the new Statewide Office holders will be taking their new office on January 2nd."

And, here is analysis I provided to a local reporter: 
"As we discussed, the judge had a wide latitude on this issue of sanctions. He is very understanding of the constraints placed on anyone bringing an Election Contest. However, I think he went too far. You need to have more than just concerns when you file; you need to have some solid evidence to back up those concerns. 

"Judge Thompson's ruling encourages fishing expeditions. And, if you don't catch anything sometimes, that's just the way it goes. That's not the right standard for Election Contests."



***

UPDATE, 12/26, 5pm: Kari Lake's attorneys are asking Judge Peter Thompson to not "punish" them for bringing the Election Contest, suggesting that if he does award the nearly $700,000 asked for by defendants, it will cause an erosion of "trust in the election process."

"Trust in the election process is not furthered by punishing those who bring legitimate claims as Plaintiff did here. In fact, sanctioning Plaintiff would have the opposite effect."

Plaintiff repeats many of the claims that it failed to prove, but argues that the 2-day trial demonstrated that the legal action was brought in good faith and not simply to harass.

However, the Response also continues to make claims that Lake has not been able to back up, saying that the issues on Election Day in Maricopa County "injured Plaintiff and millions of Arizona voters." The Response also claims that Maricopa County "reported" 25,000 additional ballots the day after the election, even though testimony showed that the earlier report was an "estimate".

Finally, the Response misstates what Ms. Lake tweeted within the past 24 hours. She quoted a commentary by Rachel Alexander claiming that Judge Thompson's December 24 Minute Entry had inappropriately been "ghostwritten" by one of the defense attorneys. More than simply retweeting Ms. Alexander, Lake amplified it in the body of her own tweet. (A sideshow, indeed, but it was cited by Maricopa County as reason for sanctioning Lake.)


UPDATE, 12/26, 9am: Kari Lake and her attorneys could be on the hook for an estimated $695,975 in sanctions to cover the attorneys' fees and costs incurred by the three defendants in her failed Election Contest. Maricopa County and the Secretary of State's Office, as well as Gov.-Elect Katie Hobbs, filed their Motions for Sanctions and Applications for Attorneys' Fees this morning (as ordered by Judge Peter Thompson).

"Enough is really enough", the County concluded. "It is past time to end unfounded attacks on elections and unwarranted accusations against elections officials. This matter was brought without any legitimate justification, let alone a substantial one. The Maricopa County Defendants therefore ask this Court to impose sanctions against Plaintiff Kari Lake and her attorneys, Brian Blehm and Kurt Olsen."

Breakdown:
Secretary of State's: $36,990
Maricopa County: $25,050
Gov-Elect Hobbs: $633,935
Total: $695,975

***

As you know, Arizona has seen MANY election-related lawsuits come and go during the past two cycles. Arizona's Law has been here to cover them, and we are keeping track of those that are or might result in some sort of sanctions to the parties/attys.

Because of the recent raft of failed Election Contest lawsuits that have sanctions in progress or being threatened, we decided to keep track of the statuses and the filing in this, centralized place. We will be adding to this article as warranted, so check back.

1) AZGOP owes AZ Secy/State, $18,237, from 2020 case. This is currently in the Arizona Court of Appeal, and a bond has been posted.

2) Finchem/Gosar/Kern owe Fernandez $75,000. This is currently on appeal in the Arizona Court of Appeals. This case is J6-related. Charlene Fernandez was in Leg, was 1 of the many Dems who wrote ltr concerned about the 3 colleagues' J6 activities. They sued her - just her - for defamation. Woefully inadequate case, prompting the sanctions.

3) Arizona Republic/American Oversight v Karen Fann (Cyber Ninjas): These are public records cases stemming from the 2021 Arizona Senate/Cyber Ninjas "audit" of the 2020 election. Defts have until Dec. 28 to respond to the Arizona Republic's application for attys' fees, and other sanctions pending.

4) Finchem/Lake (pre-election): attys will likely owe Mari. Cty. $141,000, for pre-election "paper ballots" case. Next up: a Response from Finchem/Lake.

5) Borelli Election Contest: Case was quickly dismissed. Unclear if any defendants will ask for sanctions.

6) Finchem Election Contest. Judge invites sanctions filing. Awaiting sanctions filings from multiple defendants, deadline is after New Year's.

7) Hamadeh Election Contest: Judge invites sanctions filings. Deadline is not yet set.

8) Lake Election Contest: Judge invites sanctions filings. Deadline is Dec. 26 at 8am. Three separate Motions were filed before the deadline: from Maricopa County, Gov-Elect Katie Hobbs, and from Secretary of State Katie Hobbs (in her official capacity. (Details will be added shortly.)

A trend to consider: these are listed chronologically, and the amounts being sought - and, awarded - are steadily increasing. Given the expedited nature of #6-8, the motions filed, the oral arguments, etc.,  that trend will likely continue.

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"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, December 21, 2022

BREAKING: Kari Lake FAILED To Convince Judge To Reverse Governor’s Race, Election Contest DENIED (READ Ruling)

UPDATE, 12/27, 4:50pm: Kari Lake has filed a Notice of Appeal. She will seek to have the Arizona Supreme Court take the appeal directly, and seeks to reverse Judge Peter Thompson's decisions to dismiss 8 of her 10 original counts and to deny relief on the other two after a 2-day trial.


"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, December 20, 2022

UPDATES on Election Contests In Arizona


***UPDATE on Hamadeh Election Contest: Both sides wanted to let Judge Jantzen know what happened in the Kari Lake MTD ruling.

Hobbs noted near-identical nature of some to dismissed Counts.

Hamadeh said her "efforts to spin" notwithstanding, trial goes fwd with 17,000 vote spread.

***

 UPDATE: Kari Lake's attys' inspection of a sampling of ballots in Maricopa County continues, about to head into 5th hour.

As usual, the public can watch: https://recorder.maricopa.gov/elections/electionlivevideo/

 (Choose View #4)

*TRIAL on Counts 2 (Misconduct due to printer/tabulator issues) and 4 (chain of custody causing uncertain results) set to start Wednesday at 9 (thru Thur)

*Parties sparring over SUBPOENA of Hobbs (in Secy/State capacity)

*Awaiting decision in whether Hamadeh suit continues.


Friday, December 16, 2022

BREAKING UPDATE: Finchem Appeals Dismissal Of His Election Contest; Attorney Closer To Forced Retirement (READ Notice)

UPDATE, 12/28, 5pm: The attorneys for Secretary of State-Elect Adrian Fontes are asking the Court to sanction Mark Finchem and his ready-to-be-disbarred attorney, Dan McCauley. They ask the Court to force them to repay their attorneys' fees and a $5,000 penalty, under Arizona statutes and the court's Rule 11. 

The attorneys' fees application is not attached to the Motion - a common procedure. Judge Melissa Julian dismissed the case before it went to an evidentiary hearing, finding that the Election Contest Petition did not allege facts which could cause the election results to be overturned. 

Craig Morgan, Fontes' attorney, writes that "This case is not a close call. It does not present a debatable position. It is not an effort to vindicate a legitimate claim or interest. This case is a politically motivated weaponization of the legal process meant to perpetuate the dangerous narrative that our elections are unreliable, our elected leaders are corrupt, and our democracy is broken – all because Mr. Finchem lost the election."

Finchem has filed a Notice of Appeal of Judge Julian's dismissal.

UPDATE, 12/26, 12:45pm: Mark Finchem filed the appeal of his dismissed Election Contest directly with the Arizona Supreme Court. As noted below, although there is no statutory provision for a direct appeal of an election contest case, either party can request a leapfrog of the intermediate Court of Appeals level, or the AZ Supreme Court can grab the case if it believes it to be advisable.

UPDATE, 12/22, 10pm: Because why not? Because the attorney's old and ready to retire or be disbarred - whichever comes first? Because it is a fundraising opportunity? Because all of the above?

Mark Finchem filed a Notice of Appeal, seeking to overturn last Friday's dismissal of his Election Contest in the Secretary of State race and/or the invitation to the Defendants to seek sanctions against Finchem and his attorney.

Finchem's attorney, Dan McCauley, filed the Notice. McCauley is the attorney who ended his oral arguments by acknowledging that he might get disbarred for filing the legal action but that it was okay because he is old and ready to stop practicing law. This appeal might get him closer to that outcome.

Although the appeal will initially be to the intermediate Court of Appeals, it will likely end up with the Arizona Supreme Court later this week. Because the transition of power from one of the defendants to the other - current Secretary of State Katie Hobbs (a defendant in her official capacity) to Secretary-Elect Adrian Fontes - is set for immediately after New Year's, the case will be expedited. (That might also cause the court to consider the five days between the dismissal and the filing of the Notice as dilatory.


UPDATE: BREAKING: Court DISMISSES @RealMarkFinchem Election Contest (READ Ruling)

 

 

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"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, December 15, 2022

BREAKING: Kari Lake & Mark Finchem's Attorneys Face Paying $141,690 For Taxpayers' Attorneys' Fees Defending Frivolous Suit (READ Application)

Counsel for unsuccessful candidates Kari Lake and Mark Finchem face the prospect of having to repay taxpayers $141,690 for attorneys' fees incurred in fighting their pre-election lawsuit to require *only* hand counting of paper ballots in the November election.

U.S. District Court Judge John Tuchi previously dismissed the case as frivolous, and ruled earlier this month that attorneys for Lake and Finchem should be held responsible for Maricopa County's attorneys' fees in having to defend the matter (aka Rule 11 sanctions).

Tonight's filing sets forth the time entries for the three attorneys in the Maricopa County Attorneys' Office and the one private attorney who successfully defended the case for the County. They note that the requested sanction is less than similar election-related litigation sanctions last year in Michigan and Colorado.

"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: If at first three times you don't succeed... (READ Heath Motion)

  UPDATE, 2/3, 12pm: If at first three times you don't succeed... Original, 2/1, 5:15pm: " AZ Supreme Court, Court of Appeals Both...