Tuesday, February 28, 2023

UPDATE: Finchem Attorney (1) Acknowledges Missed Deadline, (2) Mistakenly Adds Hobbs As Individual Defendant, (3) Tells Court He's Appealing *Everything* - Including the Kitchen Sink

If the judge had made an off-hand statement that the sky was blue, Mark Finchem would be appealing that, too. Finchem lost his Election Contest for his Secretary of State race against Adrian Fontes more than two months ago, but his zombie appeal is inching forward.

On Friday, Finchem's attorney, Dan McCauley, filed his Case Management Statement with the Court of Appeals. In it, he lists eight decisions made by Superior Court Judge Melissa Julian which he believes to be reversible error. 

In her December 16 Minute Entry dismissing Finchem's case, Judge Julien broke down her ruling into six sections; McCauley (mis-)lists those headings - and, two of the (four) sub-headings - as the "claims" he made in his original filing. (He only made two separate claims in the Petition - "Misconduct" and "Illegal Votes".) McCauley then tells the Court of Appeals he is appealing each of the judge's sections.

Thus, Finchem is appealing Judge Julian's finding that then-Secretary of State Hobbs' botched the election when she flagged Twitter posts by Finchem for alleged election misinformation. He is also appealing her alleged conflict of interest, that voting machines and software were not certified, there were "illegal votes", and more.

Finchem's Case Management Statement also lists three Defendants/Appellees. While it can be confusing, there are actually only two. 

Back when the Contest was filed, Katie Hobbs was still the Secretary of State, and she was correctly named *in her official capacity*. When Fontes assumed that office in the first week of January, he became a Defendant in his individual (candidate) capacity AND in his official capacity. Finchem names Fontes twice, PLUS Hobbs.

Additionally, McCauley acknowledges that he did not order the transcript of his Superior Court hearing until February 23. The deadline for him to have done so was within 15 days after filing his notice of appeal. That notice was filed December 21, meaning he was more than 1 1/2 months late. (The Court is not enforcing the missed deadline - it will be up to Fontes's attorneys to decide whether to make an issue of it.)

Finchem's Opening Brief is not due until April 7, because he has made no efforts to expedite the appeal.

Arizona's Law previously explained in detail how Finchem's appeal was effectively dead until he accidentally was granted a second life. This new filing seems to indicate that the errors and overreaching which did him in before were not an aberration.

By the way, the parties are still awaiting a ruling from Judge Julian on the Defendants' Motion for Sanctions against Finchem and/or his attorney. That decision could come at any moment.

"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.

NEW AND FIRST: AZ Senate Leaders Met About "Hostile Behavior" In Elections Committee Weeks Before Bribery Conspiracy Theory

 Democratic and Republican leaders in the Arizona State Senate met to discuss the activities in the Senate Elections Committee, weeks before Thursday's "presentation" went off the rails in pushing a vast cartel-led bribery conspiracy theory.

Arizona's Politics/Arizona's Law has verified (from two different sources) the Feb. 6 meeting between Senate President Warren Petersen and Minority Leader Raquel Teran and ranking committee member Juan Mendez. Democrats say Thursday's day-long presentation to the House and Senate Elections Committees "of course violated what Democrats had hope would come of the meeting."

The Feb. 6 meeting was requested by the two Democratic Senators after Senate Elections Committee Chair Wendy Rogers had used two successive weekly meetings to host unsworn presentations pushing unproven allegations about the 2020 and 2022 elections. They indicate that Rogers also displayed "hostile behavior" in cutting off 
Democratic members and forbidding them from speaking words like "conspiracy theory".

Calli Jones, the Communications Director for the Democratic caucus in the Senate, tells Arizona's Politics that "the continued statements throwing Representative Harris under the bus are a weak attempt to shift the blame away from Republican leadership."

Arizona's Politics has asked Senate President Petersen for responses related to the February 6 meeting and the subsequent committee meetings/presentations. We will update this article 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.

Friday, February 24, 2023

BREAKING - GOP Leaders To Judge: New Legislative Rules Permit Us To Ignore Part of 2021 Law In Order To Protect Rest Of the Abortion Restriction Measure (READ Filings)

UPDATE, 3/8, 3pm: House Speaker Ben Toma and Senate President Warren Petersen CAN INTERVENE in the lawsuit challenging a 2021 Arizona ban on abortion procedures undertaken due to a genetic abnormality. While Judge Douglas Rayes agreed that the leaders did not comply with the law's provision that they get authorization from a majority of their colleagues, the older, more general Arizona law permitting intervention still allowed them to jump into this now-frozen case.

The case is on hold pending an appeal of Judge Rayes' ruling permitting the genetic abnormality ban to go into effect. Plaintiffs are contending it is unconstitutionally vague, but Rayes ruled that that claim was not yet ripe for deciding.

***

ORIGINAL ARTICLE, 2/24: "GOP Leaders To Judge: New Legislative Rules Permit Us To Ignore Part of 2021 Law In Order To Protect Rest Of the Abortion Restriction Measure (READ Filings)"

When Arizona lawmakers passed their 2021 anti-abortion law prohibiting procedures solely because of a genetic abnormality and declaring "personhood" for fetuses, they added a clause saying the Legislature could subsequently pass a concurrent resolution to appoint members to intervene in any resulting legal action.

The measure has been in the courts ever since, and earlier this month, House Speaker Ben Toma and Senate President Warren Petersen - through their attorneys at the Alliance Defending Freedom - asked the judge to allow them to intervene.

Plaintiffs - including the Arizona Medical Association and the Arizona chapters of the National Organization of Women and the National Council of Jewish Women - objected, noting that the GOP leaders had not sought the approval of the Legislature.

Today, Toma and Petersen told the Court that one of the reasons they did not need to get permission is because they changed the rules this year to allow them to act "on behalf of" their respective houses. "Thus, even without a formal concurrent resolution, the practical requirements of Section 16 are satisfied because the President and Speaker act on behalf of their houses under the Legislature’s new rules."

(The Legislative rule changes already came to the public's attention earlier this year when it was learned that they exempted themselves from Public Records laws, and will destroy emails after only 90 days)

Toma and Petersen make other arguments as to why they should be allowed to intervene in the District Court case, including that new Attorney General Kris Mayes will not properly defend the law.

Mayes said she would not take a position on the legislature's attempt to intervene. Her brief Response (below), filed last week, then went further: "Additionally, Attorney General Mayes advises this Court that she has concluded the state laws challenged in this litigation are unconstitutional. She will not defend the constitutionality of those laws going forward."

(Arizona's Law reported earlier this week that the new AG is looking "on a case by case basis, we determine what role, if any, we want in the case going forward.")

Last month, Judge Douglas Rayes ruled that the prohibition on genetic abnormality-prompted abortion procedures can go into effect, in light of the Supreme Court's Dobbs Opinion, reversing Roe v. Wade. That decision is being appealed to the 9th Circuit, and the rest of the District Court case is now on hold.

"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 22, 2023

UPDATE: Hamadeh Keeps Adding New Attorneys For His Still-Dismissed Election Contest; Brings In Fellow Controversial 2nd-Place Finisher (READ Filing)

In an unusual move, Arizona Attorney General runner-up Abe Hamadeh continues to add to his legal team in his still-dismissed-and-in-suspended-animation Election Contest lawsuit. Although there is nothing left for either his original attorney (Tim LaSota) or his later-added attorneys to file or do in Mohave County Superior Court, Hamadeh added Nevada Attorney General runner-up Sigal Chattah to his growing team.

Chattah lost her race by 7.8%, or nearly 20,000 votes. That is far more than the 280-vote gap separating AG Kris Mayes and Hamadeh.

Hamadeh lost his Election Contest in December, after a trial that fizzled out when he could not find or present evidence that would have warranted Judge Lee Jantzen to find in his favor. He filed a Motion for a New Trial after New Year's, based largely on allegations that the state-mandated recount was not properly handled and that there were recounting issues in Pinal County. He wants to review more ballots to try to erase his deficit.

We are awaiting a decision from Judge Jantzen on both that and the defendants' motions for sanctions. Arizona's Law confirmed with Judge Jantzen's court that the decisions were not yet made.

Although Hamadeh's team lost original co-counsel David Warrington/Gary Lawkowski from Virginia, he has added Alex Kolodin (and other attorneys from that firm), and former Brnovich lieutenant Jennifer Wright. Now, with Chattah, Hamadeh is well-staffed for... waiting.

"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, MYSTERIES (MOSTLY) RESOLVED: Fmr AZAG Deputy Solicitor General Ready To Argue "Arizona v. Mayorkas" Title 42 Case In Front Of U.S. Supreme Court... For Louisiana

One of former AZ Attorney General Mark Brnovich's top lieutenants is standing by and ready to argue Arizona v. Mayorkas in front of the U.S. Supreme Court. However, in the wake of last November's election, Drew Ensign will be there on behalf of Louisiana.

Mind you, the U.S. Supreme Court itself is sending out mixed signals on whether or not they are going to hear the case that is a splinter from a challenge to the Biden Administration's on-again, off-again, on-again lifting of using Title 42 as an immigration policy.

Last week, Arizona's Law reported that the Court had REMOVED the case from its March 1 oral arguments calendar.

However, just yesterday, the Court granted a request from the Department of Justice to enlarge the oral arguments. (This caught Arizona's Law's attention, and I was informed that this had also prompted an unresolved discussion in the Supreme Court's media room about what the Justices could be thinking.)

The Arizona portion of the mystery was deepened by why Arizona, under new Attorney General Kris Mayes, was still the lead Petitioner to the Supreme Court. And why *former* Deputy Solicitor General Ensign was still listed as the lead attorney for the coalition of states.

Arizona's Law dug deeper.

New AG Mayes decided NOT to remove Arizona from the Petitioners coalition, but she did turn over the *work* for the coalition to the Louisiana Attorney General. Arizona Chief Deputy Attorney General Dan Barr explained to Arizona's Law that, "on a case by case basis, we determine what role, if any, we want in the case going forward."*

Barr indicated that Ensign is no longer on staff, and is not being paid by the AZ AGO for his work on this case. Ensign lists his new office in central Phoenix. The Louisiana AG's Office tells Arizona's Law "Drew Ensign has joined the Louisiana SG Team and will continue to represent our coalition...  if and when the Supreme Court reschedules oral arguments."

The mystery of whether the Supreme Court will hear the Arizona-named-Louisiana-led Coalition's effort to intervene in the Title 42 challenge remains unresolved.

*We asked Barr this in the context of several cases brought by the Brnovich AGO, and before Yvonne Wingett-Sanchez's blockbuster article on the Attorney General's handling of election-related investigations. His answer stands well for all of these situations.

"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: U.S. Supreme Court OVERTURNS Arizona Death Sentence For a Tucson Cop Killer, Again Criticizes Arizona Supreme Court (READ Opinion)

In a surprising decision and rebuke, the U.S. Supreme Court today vacated the death sentence for a man convicted for shooting and killing a Tucson police officer in 2003. The 5-4 decision stems from the initial sentencing, when the jury was improperly instructed its choice was between a death penalty and a life sentence with a possibility of parole.

But today's Opinion (below) was based on more than just that sentence, and it was a strong rebuke to the way the Arizona Supreme Court determined this case and previous similarly-situated cases. In fact, it stems from a 2016 U.S. Supreme Court reversal of the Arizona court.

John Montenegro Cruz was running from two Tucson Police Department officers after he was purporting to get his ID from his car. He turned and shot five times at the officer chasing him on foot.

His death sentence was based on the one aggravating factor that the person he had killed was a law enforcement officer.  The choice of death or life-with-possibility-of-parole was so difficult for some of the jurors that they had gone public with their dilemma within days of the sentencing.

Cruz's appeal to the U.S. Supreme Court was taken, pro bono, by former Acting U.S. Solicitor General Neal Katyal. 

Katyal tells Arizona's Law that "we are very gratified by the U.S. Supreme Court’s decision and believe Arizona must be far more careful in how the death penalty is administered."

Justice Sonia Sotomayor wrote the 5-4 majority opinion (joined by Chief Justice Roberts, and Justices Kavanaugh, Kagan and Jackson). She begins by noting that the entire Court had reversed Arizona in 2016 (Lynch) "after the Arizona Supreme Court repeated that mistake in a series of cases... and held that it was fundamental error to conclude that Simmons 'did not apply' in Arizona."

She ended the 14-page Opinion exclaiming that the Arizona Supreme Court - in a unanimous opinion authored by Justice Bill Montgomery - "thus disregarded that Lynch overruled 'previously binding case law' in Arizona, the 'archetype' of a significant change in the law."

Thus, the majority found, Cruz's federal claim can be considered because the state Supreme Court applied its rule "in a manner that abruptly departed from and directly conflicted with its prior interpretations."

Justice Amy Coney Barrett authored the dissent for the four Justices in the minority, and ended with a tepid defense. She noted that if she were on the Arizona Supreme Court, she might have agreed with Sotomayor. "But that call is not within our bailiwick. Our job is to determine whether the Arizona Supreme Court’s decision is defensible, and we owe the utmost deference to the state court in making that judgment. Cases of inadequacy are extremely rare, and this is not one. 

The Arizona Supreme Court Opinion from 2021 is also published below.

"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 21, 2023

BREAKING: Arizona Abortion Advocates APPEAL Ruling That Genetic Abnormality Ban Can Go Into Effect (READ Filings)

UPDATE, 2/22, 2:30pm: Judge Douglas Rayes today agreed with the parties, and issued a stay on further proceedings in his court while the 9th Circuit determines the plaintiffs' appeal.

Original Article, 2/21: "Arizona Abortion Advocates APPEAL Ruling That Genetic Abnormality Ban Can Go Into Effect (READ Filings)"

Abortion advocates who have been challenging the Arizona 2021 law banning abortions performed solely because of a genetic abnormality (and granting a fetus "personhood") today filed an appeal with the 9th Circuit. 

On January 19, U.S. District Court Judge Douglas Rayes ruled that the ban could go into effect, because last year's U.S. Supreme Court decision changed everything and the claim that this ban is unconstitutionally vague is not ripe. The plaintiffs include the Arizona Medical Association and the Arizona chapter of the National Council of Jewish Women - they are represented by the ACLU the Center for Reproductive Rights and other attorneys. They are appealing that decision.

The plaintiffs and the State agree that the District Court should stop its proceedings while this appeal is pending. 

Meanwhile, an appeal of whether Arizona's entire set of abortion restrictions passed between Roe and Dobbs are still in effect given the revivication of  the complete Territorial-era ban is likely to head to the Arizona Supreme Court.

"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 16, 2023

BREAKING: Appeals Court AFFIRMS Rejection Of Kari Lake's Election Contest (READ Opinion)

A unanimous panel of Court of Appeals judges REJECTED Kari Lake's Election Contest appeal this afternoon.

They summarized their reasons neatly in the opening paragraph of the 12-page Opinion (below):

"... her request for relief fails because the evidence presented to the superior court ultimately supports the court’s conclusion that voters were able to cast their ballots, that votes were counted correctly, and that no other basis justifies setting aside the election results."

 The opinion, authored by Chief Judge Kent Cattani, and joined by Peter Swann and Maria Elena Cruz, separately addresses the two counts which were the subject of the two-day trial, the printer/tabulator claim and the chain of custody issues.

Cattani reviewed Lake's allegations and summarized them as "sheer speculation".

"Lake’s claim thus boils down to a suggestion that election-day issues led to long lines at vote centers, which frustrated and discouraged voters, which allegedly resulted in a substantial number of predominately Lake voters not voting. But Lake’s only purported evidence that these issues had any potential effect on election results was, quite simply, sheer speculation."

About chain of custody, Cattani wrote: 

" Regarding ostensibly missing chain-of-custody documentation, Lake’s evidence was either misdirected (e.g., a witness who reported not receiving certain forms in response to a public records request but who also confirmed that she “know[s] they exist”) or was provided by individuals who were not present or could not see the relevant area. For their part, Maricopa County elections officials confirmed the existence of chain-of-custody forms documenting how election-day early ballot packets are processed from vote center to tabulation. The court had ample basis to conclude that Lake failed to prove improper chain-of-custody documentation."

Lake has renewed her previous vows to continue appealing the negative results. She tweeted this afternoon that her attorneys will bring this to the Arizona Supreme Court immediately; the Supreme Court has the discretion in whether or not to hear the appeal.

The state's highest court twice rejected clumsy attempts to get them to consider it instead of the intermediate Court of Appeals. However, that is not necessarily indicative of their views on the merits - or, lack thereof - of Lake's case.

The Court of Appeals did not levy any sanctions today - Hobbs' attorneys perfunctorily asked. Appeals courts are less likely to award sanctions. The $30,000+ in witness fees awarded by the Superior Court still stands.

"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: Judge REFUSES To Throw Out Challenges To New Arizona Laws Purging Voter Registration Rolls (READ Order)

In a detailed 35-page Order this afternoon, federal Judge Susan Bolton has refused to dismiss several (consolidated) challenges to the Legislature's laws forcing counties to further purge voter registration rolls and creating confusion for many longtime voters.

Several non-profits, sovereign Native American nations, and the U.S. filed actions against last year's HB2492 and HB2243, claiming that the citizenship verification requirements were discriminatory and arbitrary, and would illegally disenfranchise thousands of voters (among other arguments).

In September - before Democrat Kris Mayes was elected to replace Republican Mark Brnovich as Attorney General, Arizona moved to dismiss the lawsuits.  Today's Order denied that Motion, finding that - the various parties had standing to bring the actions and had presented sufficiently supported allegations to move on.

The parties have already been engaged in volleys of discovery, and most of Arizona's 15 counties recently promised the court that they had not yet engaged in removing anyone from the voter rolls.

Bolton found that most of the Plaintiffs' claims are "plausible" and that it would be inappropriate to dismiss them now because of the intensive fact-finding involved. She did dismiss "freestanding" allegations of violations of procedural due process, but will consider such allegations that are analyzed under a previously-determined ("Anderson-Burdick") framework.

"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: U.S. Supreme Court oral arguments in Arizona v. Mayorkas have been VACATED

The U.S. Supreme Court oral arguments in Arizona v. Mayorkas, regarding Title 42 and border policy, have been VACATED. The Court was to hear arguments on March 1.



Last week, the DOJ told the court, in a sxn titled "Further Developments", that the Biden Admin's intent to allow the public health emergency to expire on May 11 WOULD MOOT the case. Noone specifically asked the Supreme Court to REMOVE the case from the March 1 calendar, but the Justices quietly made that decision today.

Arizona is the named party in this case because the previous AG, Mark Brnovich, led states in trying to intervene to appeal the decision in a privately-brought case. 

AZ/other states brought their effort to intervene to the Supreme Court in December.

"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 13, 2023

UPDATE: Judge dismisses RNC pre-election lawsuit to force Maricopa County to hire more Republican poll workers (READ Minute Entry)

Maricopa County properly hired enough Republican poll workers for a lawful 2022 election. The RNC conceded that point *before* November, and today a judge dismissed their pre-election lawsuit designed to force changes to make sure more Republicans would fill the positions.

Judge Katherine Cooper conducted oral argument earlier this month and her Minute Entry (below) released today. She found that the allegations are now moot as to the 2022 election (especially since the Republican National Committee's amended complaint had conceded the County had followed the law)and not yet ripe for 2024 or beyond.

Maricopa County Recorder Stephen Richer was happy the case is dismissed, noting that the County does nothing to discriminate against GOP poll workers as was claimed. He explained to Arizona's Law:

"We have the same standards for all temporary workers -- whether Republican, Democratic, Libertarian, or otherwise.  Those standards are of course equally and fairly applied.  Neither the Board nor I discriminated against our own Party.  In fact, of the over 2,500 temporary workers recruited for the November 2022 general election, we had almost the exact same number of Republicans and Democrats working as temporary workers. And this ruling affirms that."

The extended early voting period and Election Day Vote Centers have changed the counties' poll worker needs significantly. On Election Day, there are still the very long hours, and now the locations are more geographically dispersed.

We have reached out to RNC attorney Tim LaSota for reaction, too, 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.

Wednesday, February 8, 2023

BREAKING UPDATE: Finchem Gets 2nd Chance, Will Proceed With Election Contest Appeal

UPDATE, 2/17, 4pm: "UPDATE: Finchem Gets 2nd Chance, And Will Proceed With Election Contest Appeal"

With his appeal granted a renewed life last week, defeated candidate Mark Finchem has decided to push forward with his appeal of last November's Secretary of State election. Finchem's attorney, Dan McCauley, tells Arizona's Law today that he finally paid the $280 appellant's fee on Wednesday because he had discussions with the former State Rep and he "directed my office to pursue his appeal."

Arizona's Law detailed in the article below how the Court of Appeals revived Finchem's left-for-dead appeal. Attorney McCauley had filed the Notice of Appeal in December after Judge Julian granted Adrian Fontes's Motion to Dismiss the case - stating he would take the appeal to the Arizona Supreme Court - but took no further action to get it there.

The briefing is currently set to continue into early June. The parties are also waiting for Superior Court Judge Julian to rule on the pending Motion(s) for Sanctions.


Original article, 2/8, 4pm: "Arizona Hit With A "Zombie" Election Contest Appeal From Mark Finchem (READ Docket)"

On December 21, Mark Finchem's ready-to-be-disbarred-for-the-cause-cuz-I'm-old attorney filed a Notice of Appeal nearly a week after Superior Court Judge Melissa Iyer Julian dismissed his Election Contest lawsuit for the Secretary of State's race. He has not filed anything since then to move the appeal along - not even the filing he was required to make.

Alex Gould/AZ Republic

Nevertheless, Finchem's appeal received new life this week, when the Court of Appeals told Dan McCauley that his Opening Brief is due by April 7.

McCauley declined to comment to Arizona's Law, noting yesterday that "we are waiting for direction from the client".

However, a review of the dockets (Superior, Division 1, Supreme Court), requests for information from the Clerks' offices and communications with some of the attorneys involved help us explain why this undead appeal is slowly ambling on.

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. He waited a long (given the expedited way elections cases are supposed to be handled) five days (Dec. 21) to file the required Notice of Appeal in the Superior Court.

We reported at the time that the case would likely be transferred to the Arizona Supreme Court, given those expedited processes and the then-impending inauguration of Adrian Fontes as Secretary of State. The Supreme Court's Clerk's Office also expected it, setting up an (unusual) anticipatory docket.

However, McCauley did not pursue the expedited handling, as provided in the court's rules. The Supreme Court CLOSED its anticipatory docket on December 28, in an Order that provided McCauley a road map on how to get the case moving.

The next deadline for Finchem's attorney fell on January 6 - after Fontes's inauguration. McCauley did not file his "Notice of Transcript Order and/or Statement of Issues". The Clerk's Offices do not change their required procedures just because McCauley did not file it.

So, on February 3, the Superior Court transmitted the record to the Court of Appeals. And on Monday, the Court of Appeals opened its docket and set the deadlines. (The docket became public on Tuesday, and we conducted extra reporting yesterday and today.)

If all of the parties' briefs are filed at the deadlines (as is often the case), the briefing will be completed in early June.

While Finchem has not explicitly been citing his appeal, he has continued fundraising under his "Never Stop Fighting" twitter handle. The former State Representative is pitching the Election Fairness Institute, an organization he set up in 2018 (along with then-Rep-now-Cochise County Recorder David Stevens.


Meanwhile, the parties are expecting a ruling from Superior Court Judge Julian on the Motion for Sanctions filed by Fontes's attorneys. (An appeal - even a zombie appeal - stops the trial court judge from taking certain types of actions; deciding sanctions is not stopped by the pending appeal.)

"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 6, 2023

UPDATE: Flurry of Filings In Hamadeh Election Contest As Motions For New Trial, Sanctions Go To Judge

Abe Hamadeh's Motion for a New Trial and the Defendants' Motion for Sanctions head to Mohave County Superior Court Judge Lee Jantzen's desk after a flurry of filings in the past few days.

Hamadeh is asking for a new trial, based largely on the results of the statewide recount in the super-close race for Attorney General ended with Kris Mayes on top by just short of 300 votes.

Hamadeh filed his Reply this afternoon:

 

Earlier, the Defendants filed their Reply explaining to Judge Jantzen why he should award sanctions against Hamadeh and/or his attorneys for what they called the very definition of a "fishing expedition".

Finally, the Defendants also urged the judge to reject the belated effort of State Senate President Warren Peterson and House Speaker Ben Toma from weighing in on the longstanding Election Contest laws.

"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 1, 2023

BREAKING: "No" means no: Supreme Court Turns Down Heath's Latest Requests (READ Order)

UPDATE, 2/8, 3pm: "No" means no: Supreme Court Turns Down Heath's Latest Requests

The Arizona Supreme Court has again turned aside attorney Ryan Heath's latest effort to elbow into the Kari Lake Election Contest appeal. Today, they rejected his back-to-back motions trying to get his allegedly-unique legal understanding in front of the Court of Appeals. (He had filed a Motion for Clarification and a Motion to instruct the Court of Appeals to accept his petition as an Amicus - or, friend of the court - brief.

Justice John R. Lopez IV simply ran down the chronology, and informed Heath that his brief does not meet the requirements of the appellate courts' rules.

Heath indicates (on social media) that he plans to submit it again when/if the Lake appeal reaches the Arizona Supreme Court. (The Supreme Court has discretion to decide whether or not to review the Court of Appeals' decision.)

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 REFUSE To Consider "Civil Rights Activist"/Attorney Heath's Treatise On Why He Knows AZ Election Law Better (READ Order)"

"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.

CORRECTION: Part of AZ's COVID Vaccine Mandate Case Survives; AZAG, DOJ and Judge Dismissed the Immigration-Related Counts

CORRECTION, 2/3 3pm: "Part of AZ's COVID Vaccine Mandate Case Survives; AZAG, DOJ and Judge Dismissed the Immigration-Related Counts"

We previously described the long-standing Brnovich case against national COVID vaccine mandates as a roller coaster of a case*, as the Arizona Attorney General's Office morphed the case a few times to keep it alive. We regret to report that we were thrown from our car when we reported this week that all of the remaining counts had been dismissed by stipulation of the new AG's Office and the U.S. Department of Justice - and that Judge Michael Liburdi hesitated to accept the stipulation.

In fact, this week's dismissal was only for the counts that tried to tie immigration issues to a possible vaccine mandate. STILL ALIVE are the state's claims against other parts of President Biden's COVID-related Executive Orders. And, also in fact, it was nearly one year ago that Judge Liburdi slapped a permanent injunction on those parts - the "contractor mandate" and the "employee mandate". (Those mandates are more fully described in the injunction, which is posted below.)

The U.S. DOJ has appealed that injunction, and that case is scheduled for oral argument before the 9th Circuit Court of Appeals next month.

Judge Liburdi apparently set yesterday's status conference because he was aware of the possible change in priorities from the Mark Brnovich AGO ("Attorney General's Office") and the Kris Mayes AGO. He then kept the status conference on the calendar to ask the parties' counsel about it. It is Arizona's Law's understanding that the new Mayes administration is still considering its options regarding the injunction and appeal.

My apologies for not fully and properly explaining this complex case, and for any incorrect assumptions made as a result. Thank you to the tipster who wished to remain anonymous. If you ever find an Arizona's Law article needs corrections, please email the publisher, Paul.Weich.AZlaw@gmail.com.  --Paul

*Our most recent reporting on the roller coaster was in December 2021, "Judge REJECTS Motion To Allow Federal Employee To Join Brnovich's Vaccine "Mandate" Suit As "John Doe""

UPDATE, 2/2, 5pm: "JUST MESSIN' AROUND: Judge Quickly Allows Dismissal of AZ's COVID Vaccine Mandate Case"

Judge Michael Liburdi today quickly agreed to the stipulated dismissal of the long-running Brnovich case against national COVID vaccine mandates.

Yesterday, he acknowledged that new AZ Attorney General Kris Mayes and the U.S. Department of Justice had agreed to let the 2021 case be closed. But, he told them they would have to appear in his courtroom this morning for a now-pointless status conference.

The Minute Entry shows that the hearing lasted only 5 minutes, and that the stipulation is granted. Arizona's Law has asked the AG's Office for details on what transpired during those five long minutes and will update as warranted.



Original article, 2/1, 4:15pm: "SURPRISE: Judge REFUSES To Allow New AZ AG Mayes, Biden DOJ To Stipulate To Dismiss Long-Running Brnovich Case Against COVID Vaccine Mandates"

In a surprise move this afternoon, U.S. District Court Judge Mike Liburdi refused to accept a stipulation from new Arizona Attorney General Kris Mayes and the Biden Department of Justice to dismiss her predecessor's long-running lawsuit against possible COVID vaccine mandates.

Arizona's Law has provided coverage as former AG Mark Brnovich's office struggled to find ways to maintain their first-in-the-nation 2021 lawsuit against possible mandates, trying to tie it to immigration policies, federal contractors and more. It has been a roller coaster ride of a legal action, continuing during the post-election transition period.

This morning, an agreement to bring the roller coaster to a stop was filed with the Court, and it (routinely) asked to vacate a status conference set for Thursday.

This afternoon, Judge Liburdi refused. Noting simply that he reviewed the Stipulation and the request to vacate, Liburdi denied the request.

Arizona's Law has asked for comment from Mayes' office, and will supplement as warranted. It should be a more interesting than most kind of status conference.



"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.

Arizona one of 8 states joining U.S. FTC in suing to block Kroger (Fry's)/Albertson's-Safeway merger

 Arizona AG Kris Mayes, the FTC and several other states are suing to BLOCK the Fry's (Kroger)/Safeway-Albertson's merger. The case ...