Tuesday, March 28, 2023

UPDATE: Hearing Tomorrow In State's Suit Against Cochise County Re: Giving Elections Duties To Recorder Stevens; Bisbee, Nogales, Tucson, Phoenix?

Arizona sued Cochise County three weeks ago for its "unqualified handover" of elections duties from the Board of Supervisors to Recorder David Stevens. Tomorrow, a judge from Nogales will hold an initial hearing in Bisbee, and discuss whether to transfer the case to Phoenix or Tucson.

Attorney General Kris Mayes filed the Motion For Change Of Venue a few days ago, suggesting that they were correct in initially bringing the case in Cochise County, but now have a right to ask for it to be transferred to Maricopa County. Cochise County Superior Court then brought in Judge Thomas Fink, the Presiding Judge in neighboring Santa Cruz County Superior Court to hear the case.

Partly because the AG's office is in Phoenix and Cochise County is likely to have hired Phoenix-based counsel - and because the case is mostly interpretation of laws and not a fact-driven inquiry - Maricopa County would be the most logical venue. If Judge Fink believes geographical proximity is still a factor, the state suggests Pima County Superior Court - halfway between Bisbee and Phoenix (as the car drives).

Here is our initial article on the case, along with the Complaint.

"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, IRONY: Finchem Asks Judge To Deny Fontes Sanctions Because Of Timeliness; Meanwhile, State Separately Asks For $7,500 Sanctions (READ Filings)

In a pot-and-kettle situation, former Secretary of State candidate Mark Finchem is (incorrectly) urging the court to deny any sanctions against him and/or his attorney because the Adrian Fontes' Motion was filed two days late. Meanwhile, attorneys for the Secretary of State's Office filed their request for $7,500 in sanctions in Finchem's failed Election Contest.

Unfortunately for Finchem, the basis for yesterday's Objection (below) is that Superior Court Judge Melissa Iyer Julian asked for sanctions motion(s) to be filed "within 10 days". Opposing counsel correctly - under court rules - read that to mean 10 court days, instead of 10 calendar days. The Christmas court holiday also did not count. So, the December 28 Motion was filed well within the deadline imposed by the judge's December 16 Minute Entry. (You also do not count the day the Order was filed.)

The irony comes into play in light of Finchem and his attorney's inability to keep the appeal of the dismissal moving in a timely manner. Arizona's Law has documented how Finchem's zombie appeal is only "alive" (moving forward) because the courts and opposing counsel have permitted untimely filings.

Finchem also suggests - in both yesterday's Opposition and his previous Motion for Reconsideration - that Judge Julian should not award contestee Fontes' attorneys' fees because they were initially paid by a third party. (Sanctions are not solely designed to reimburse whoever paid for the attorneys' fees; they are also to penalize the party that was using the court system to push a groundless claim (or defense) in bad faith.)

Because the Election Contest was dismissed by the trial court judge relatively quickly, the costs and attorneys' fees incurred by then-Secretary of State Katie Hobbs' office were only $7,525.58. That filing is also below.

Judge Julian now has the Motion for Sanctions and Finchem's Motion for Reconsideration in front of her. The Court of Appeals is awaiting briefing on Finchem's appeal - the Opening Brief is due April 7. 

"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, March 27, 2023

BREAKING: Judge ORDERS Phoenix To Stop Allowing Encampment For The Unhoused In Downtown "Zone" (READ: Order)

 In a detailed, 23-page Order, Superior Court Judge Scott Blaney ORDERED the City of Phoenix to remove the "public nuisance" it has permitted on public property near downtown. The sprawling encampment has become known as "the Zone" and has received national attention recently.

The lawsuit filed last summer by business owners in the area - including the sandwich shop recently featured in the New York Times - asked the Court to order Phoenix to "refrain from expanding, maintaining, and/or operating" the proliferation of tents and makeshift shelters. Phoenix tried to dismiss the case, which the judge refused in January.

Today, Blaney explained why he can order the city to abide by the public nuisance laws while not telling the city exactly *how* to do so.

Here are his requirements:


Blaney also put it in terms of how it impacts the people living in "the Zone": 
"Finally, beyond the public policy embodied in the statutes above, public policy counsels that the City take immediate action to protect the homeless individuals residing in squalor in the Zone from the many risks and dangers identified throughout this Ruling. See Finding Nos. 15-22, 24-27, 43, 44. “Immediate action” means abating the public nuisance in which they reside and developing, as quickly as practicable, temporary shelter space for those that truly need it. It does not mean leaving the public nuisance in place and allowing it to fester while the City pursues development of long-term plans of permanent, affordable housing."

The area of Phoenix is informally referred to as “the Zone,” and encompasses an area roughly between 7th and 15th Avenues and between Van Buren and Grant Streets.

"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 UPDATE: Arizona Supreme Court this morning REFUSED to "stay" the execution warrant against Aaron Gunches

The Arizona Supreme Court this morning REFUSED to "stay" the execution warrant against Aaron Gunches. 

The sister of his victim asked on Friday, saying it's not clear whether the warrant EXPIRES if it is not carried out by the state on the date certain of April 6. 

The Supreme Court did not explain its reasoning in the two Orders. 

(It is possible that there was some discussion about considering the Motion to Stay the warrant, and asking for a response from the State: the file name is titled "Briefing 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.

Friday, March 24, 2023

BREAKING: Hamadeh Tries To Rejuvenate His Election Contest By Piggybacking On Lake's Supreme Court Order (READ Filing)

Republican Attorney General Candidate Abe Hamadeh pounced on the Arizona Supreme Court's Order in the Kari Lake appeal, and told the trial judge he should give him another chance at fighting Maricopa County's signature verification process.

Hamadeh lost to Kris Mayes by less than 300 votes, and he lost his Election Contest trial in December. However, rather than appeal, Hamadeh filed a Motion for a New Trial on January 3. Despite the expedited timeline for Election Contest cases, Mohave County Judge Lee Jantzen has not yet ruled on the Motion, and is coming up on the (advisory) deadline for judges to rule on outstanding motions in early April.

(In addition to the (1) Motion for a New Trial, Judge Jantzen is coming up on his deadlines to rule on the Defendants' Motions for (2) Sanctions and to (3) Compensate Ballot Inspectors, and a (4) Motion to Intervene by House Speaker Ben Toma and Senate President Warren Petersen.)

Hamadeh's legal team use three points from the Lake Order to justify their request for a new trial:

--The Mayes/Hamadeh margin is much closer than the Hobbs/Lake margin, and the Supreme Court's mention of needing a "competent mathematical basis to conclude that the outcome would plausibly have been different, not simply an untethered assertion of uncertainty" is relevant in his case.

--Judge Jantzen dismissed Hamadeh's Count V regarding signature verification based on laches. The Supreme Court said laches should not apply to a challenge against the application of the policies.

--Finally, Hamadeh argues that the Supreme Court's Order shows that "the time provisions (in the Election Contest statutes) do not conflict to prevent this Court from granting a new trial."

They also ask Judge Jantzen to set a hearing on their Motion.

Here is the new filing:

"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, March 22, 2023

BREAKING UPDATE: Schedule Quickly Set On Kari Lake's Signature Verification Challenge - Back To the Motion To Dismiss Stage (READ Minute Entry)

UPDATE, 3/25: In a surprising turn of events, Thursday's scheduling Order for the Supplements regarding signature verification was RESCINDED in a Saturday Minute Entry. (below)

Lake's attorneys inadvertently set a chain of events into motion Thursday. After the Arizona Supreme Court's Wednesday Order (below) left open the sanctions (at the appellate level), Lake's team asked for clarification on when to file the sanctions responses. Late Friday, the Supreme Court clarified, setting April 5 as the Response deadline (and April 12 for replies).

AZ Supreme Court's 3/24 Order

This prompted Superior Court Judge Peter Thompson to realize that the Supreme Court had not yet officially handed the case back to him. This "mandate" is designed to ensure that only one court at a time is dealing with the substantive issues. That realization has prompted him to rescind the quick scheduling he set up for addressing the signature verification issue (at the Motion to Dismiss stage).

Confused? You are not alone. And, it is very possible that the Supreme Court will quickly clarify - possibly allowing the signature verification issue to move forward in Superior Court while the Justices are handling the sanctions issue.


UPDATE, 3/23, 12:20pm: Superior Court Judge Peter Thompson quickly decided how to proceed on the Supreme Court's Order to revisit Kari Lake's Count challenging whether Maricopa County abided by signature verification policies on early (mail-in) ballots.

He is re-setting the clock to the defendants' Motions To Dismiss stage. In December, he dismissed the Count based on his understanding that it violated the legal concept of laches - that Lake was challenging the signature verification *policy* and could have done that *before* the election. 

The Supreme Court determined yesterday that her challenge was to whether the policies were *followed* in the 2022 election.

Thompson is giving the parties until next Tuesday morning to file a SUPPLEMENT to the Motion to Dismiss filings. He specifically stated it should be a "memorandum of law" and not setting forth facts (because that would not be appropriate at the MTD stage).

If he then wants to hear oral arguments, that will take place on March 30, 9am.

Thompson could re-dismiss the Count III, or he could deny the Motions to Dismiss it, and set evidentiary proceedings.

***

ORIGINAL ARTICLE, 3/22, 5:25pm: "BREAKING: AZ Supreme Court Sends Kari Lake Case Back To Trial Court To Look At Whether Maricopa County Followed Signature Verification Policies In 2022; Denies Review Of Rest Of Appeal"

The Arizona Supreme Court sent one piece of Kari Lake's Election Contest appeal back to Superior Court this evening. They refused to look at the rest of her appeal. Lake lost her effort to overturn the Arizona Governor's race results after a 2-day trial, and the Court of Appeals affirmed that judge's decision.

The issue to be re-considered is whether Maricopa County followed signature verification policies in the 2022 election. Judge Peter Thompson had found that the doctrine of laches applied and refused to consider the issue.

The Supreme Court Order states: "Contrary to the ruling of the trial court and the Court of Appeals Opinion, this signature verification challenge is to the APPLICATION OF THE POLICIES, not to the policies themselves. Therefore, it was erroneous to dismiss this claim under the doctrine of laches." (emphasis added)

So, Lake's attorneys will now have to show - likely based on the evidence that they had and have gathered since - that Maricopa County accepted early ballots that they should not have AND that it constitutes misconduct. On this count, Lake had asked for setting aside election OR proportionally reducing each candidate's share of the mail-in votes. (Early vote favored Hobbs.) They cited case law for either option.

HOWEVER, the judge dismissed the count  based on laches, believing they could have challenged the POLICY before the election.

Re: SANCTIONS: The Supreme Court STILL wants to consider sanctions against Lake for claiming 35k+ ballots were added at Runbeck. The Supreme Court today: "The record does not reflect that 35,563 unaccounted ballots were added to the total count."

A big X factor: The initial Election Contest is conducted under strict time constraints. Today's Supreme Court Order does NOT address whether all time constraints are now removed, and whether more discovery, etc can take place. Look for that to be one of the next battles.

The Supreme Court also gave Judge Thompson orders to "whether the claim that Maricopa County failed to comply with A.R.S. § 16-550(A) fails to state a claim pursuant to Ariz. R. Civ. P. 12(b)(6) for reasons other than laches, or, whether Petitioner can prove her claim as alleged pursuant to A.R.S. § 16-672 and establish that “votes [were] affected ‘in sufficient numbers to alter the outcome of the election’” based on a “competent mathematical basis to conclude that the outcome would plausibly have been different, not simply an untethered assertion of uncertainty.”

That will also make for some interesting battles between the parties.

So, based on that paragraph, it IS possible that there will NOT be a new evidentiary hearing. If the County convinces judge that the Count should be dismissed for a reason other than laches.

(However, I'm not sure what that successful argument would be.)

Lake asked the Arizona Supreme Court to reconsider those decisions, arguing that the lower courts' rulings mean that "election laws don't matter." The other side - Maricopa County, the Secretary of State's Office, and Katie Hobbs in her capacity of the successful gubernatorial candidate - told the Supreme Court that they should not exercise their discretion to hear the appeal because Lake had not shown any valid bases for overturning the dismissal. (Lake received permission to file a short Reply claiming that defendants had misrepresented the chain-of-custody issues.)


"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, March 21, 2023

BREAKING: Successful Candidate Fontes Asks For $67,000 In Sanctions Against Defeated Candidate Finchem, Attorney For "Bad Faith" Election Contest (READ Application)

Now-Secretary of State Adrian Fontes is asking the Court to hold defeated candidate Mark Finchem  responsible for more than $67,000 in sanctions for filing what the judge has determined to be a "bad faith" Election Contest.

Judge Melissa Iyer Julian granted the Motion for Sanctions on March 1, and asked candidate Fontes and the Secretary of State's Office to submit their attorneys' fees incurred. The Secretary of State's Office has until next Monday to file theirs.

Finchem and McCauley have asked the Court to Reconsider its sanctions ruling, but that is not likely to succeed. They have also appealed Judge Julian's dismissal of the Election Contest to the Court of Appeals, and have requested oral argument. (The case has neither been briefed nor expedited, as yet.)

Judge Julian indicated that she would later decide whether to assess the sanctions against Finchem, his attorney Dan McCauley, or both of them. While not explicitly addressing this question, Fontes's attorneys are suggesting that it should only be Finchem who is held responsible.

Finchem (and/or others) are also potentially on the hook for sanctions in two other cases - one alleging a former legislative colleague defamed him regarding January 6, and another where Finchem and Lake sued to hand count all Arizona ballots while wrongly claiming that Arizona does not use paper ballots.

"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, March 20, 2023

BREAKING: SRP APPEALS Latest Rejection Of Major Coolidge Plant Expansion, Fights Randolph Residents' Attorneys' Fees

The Salt River Project ("SRP") is appealing the Arizona Corporation Commission's refusal to allow a major expansion of its generating station near Coolidge, which it previously said is necessary to avoid the possibility of summertime outages as soon as next summer.

Superior Court Judge Randall Warner upheld the ACC's decision, and SRP initially said it would appeal to the Arizona Supreme Court. However, after the ACC's objection, the appeal is now landing with the intermediate level Court of Appeals.

SRP is also opposing efforts by nearby residents from the historic Black community of Randolph to hold the utility responsible for attorneys' fees of more than $171,000. 

Judge Warner has not yet ruled on the attorneys' fees issue, but signed his decision upholding the ACC's decision in late January, specifically stating that he was deciding quickly - after the two-day trial - because "Given Arizona’s power needs and the environmental interests at stake in this case, there is an urgent need for final resolution of whether SRP may build the Coolidge Expansion Project."

Surprisingly, given SRP's public statements that its users could experience outages by the summer of 2024 without the addition of 16 natural gas turbines for peak demand power, SRP has not tried to expedite the appeals process.

SRP tells Arizona's Law that in light of the ACC's rejection one year ago, it "is diligently working to move forward with all viable projects that can be online by summer of 2024 and thereafter to meet the electrical service needs of our customers." Those include two "flexible natural gas turbines" at Copper Crossing (north of Florence), and upping renewable and battery storage additions to come online by next summer. 

Their response indicates that those smaller projects will also "come at a much higher cost" that the Coolidge expansion (hint, hint), and that with power demands continuing to grow, they are concerned for the summers of 2026 forward if the Coolidge expansion is not in place by then.

(SRP's full response is provided below.)

Judge Warner noted in his 17-page Opinion that SRP had to prove to him that the ACC's rejection was either "unreasonable or unlawful." He listened to witnesses presented by the parties, but he was not substituting his findings for the Commission's.

The Commission's Siting Committee had conducted an 8-day long hearing and voted 7-2 to approve the expansion. The Randolph residents and the Sierra Club asked the Commission to review. Surprising nearly everyone, after listening to Randolph residents and others, the Commission voted 4-1 to reject it.

Warner reviewed the Commission's Findings of Fact and Conclusions of Law in detail, and only found one or two minor issues with them. The overall balancing the Commission did was appropriate, he found several times. Here is one example:

At the hearing before the Siting Committee, SRP offered testimony that it had no other viable alternatives to meet its identified need without increasing the cost to customers, reducing reliability, and/or delaying implementation. These are valid points, since the Commission must consider how the cost of mitigating environment impacts will affect customers. And the Commission could have agreed with SRP, finding that the need for the Coolidge Expansion Project outweighs its environmental impact because, among other reasons, there is no other viable option.

But it was not required to. The Commission could lawfully question whether the Coolidge Expansion Project is as necessary as SRP claims. And just as SRP could argue that there are no other viable alternatives, the Commission could find that there are, or that SRP did not sufficiently explore alternatives to say it had none.

SRP's Opening Brief is currently due May 16.

Here is Judge Warner's Decision, followed by SRP's responses to Arizona's Law's questions. 

Q: In his decision, Judge Warner said "an urgent need for final resolution of whether SRP may build the Coolidge Expansion Project." SRP CEO is on record as saying there could be blackouts by next summer if not expanded.

 Is that still the projection?

SRP is diligently working to move forward with all viable projects that can be online by summer of 2024 and thereafter to meet the electrical service needs of our customers. SRP has announced multiple renewable and battery storage resource additions that will come online by 2024, as well as two flexible natural gas turbines – each with an output less than 50 MW – to our Copper Crossing Energy & Research Center. Several of these resources will come at a much higher cost than the Coolidge Expansion Project, but they are critical additions to providing the capacity needed to serve SRP customers in 2024 and 2025.

 

Despite SRP’s efforts to secure capacity for 2024 and 2025 energy needs, there remains risk to meeting SRP’s forecasted capacity over the next few years and thereafter. SRP’s forecast for electricity demand continues to grow in the years beyond 2025, and SRP still projects a need for the capacity that the Coolidge Expansion Project would have provided in summer 2026 and 2027.

Lastly, it is important to note that meeting peak capacity needs is only one aspect of meeting power system reliability needs. SRP also needs the flexibility offered by the quick-starting, fast-ramping turbines proposed for the Coolidge Expansion Project to help expand and backup SRP’s growing renewable resources and support unanticipated long-duration outage events.

The decision was two months ago, and it appears that SRP is not doing anything to expedite the appeals process. Why is that?

On February 17, SRP filed a notice of appeal with respect to the January 20 Superior Court decision to affirm the ACC’s previous denial of the Coolidge Expansion Project’s Certificate of Environmental Compatibility (CEC).

 

SRP is seeking to appeal directly to the Arizona Supreme Court to expedite the appellate process. SRP believes the Superior Court decision was incorrect regarding its interpretation and application of the factors that must be considered under the Arizona line siting statute, and that the Superior Court should have granted SRP’s appeal. 

SRP maintains the flexible-fast ramping Coolidge Expansion Project is still the best option to meet our customers’ energy needs without compromising reliability. It also remains the best option to enable SRP’s efforts to reliably add to its robust portfolio of renewable resources, such as 2,025 megawatts of solar energy which will be online by 2025, 161 MW of wind, and over 1,100 megawatts of battery storage projects online by 2024, which is enough to power more than 180,000 average size homes for up to four hours.

"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, March 17, 2023

UPDATE: Finchem Asks Judge To Reconsider Election Contest Sanctions, Just Before Defendants Are To Submit Their Bills (READ Motion)

Former Secretary of State candidate Mark Finchem and his attorney, Dan McCauley, have asked the Superior Court judge who dismissed the Election Contest in December to reconsider her decision to award sanctions to the defendants. The Motion for Reconsideration comes days before those defendants are to submit evidence of the attorneys' fees incurred in responding to the challenge.

Finchem focuses on his disproven claims that tabulation machines used throughout the state in the 2022 election were not properly certified, and claims that more than 500,000 ballots must therefore be thrown out. Judge Melissa Iyer Julian has repeatedly found that the machines were properly certified. 

In her recent Minute Entry, she noted that Finchem had initially claimed 80,000 votes were impacted and that would not have been enough to change Finchem's margin of defeat to Adrian Fontes. The Motion for Reconsideration thus claims the half-million number is what had been initially alleged. McCauley told Arizona's Law last week that he did not have a chance to clarify that to the judge during oral arguments because she had been so argumentative with him.

Next week, Defendant Fontes (in both his capacity as private citizen/contestee and as the now-Secretary of State) has to file what the attorneys' fees incurred were. Fontes would only have to respond to this Motion for Reconsideration if Judge Julian asks for a Response; otherwise, she will simply deny the Motion.

Here is the Motion for Reconsideration:

"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, March 16, 2023

UPDATE: Supreme Court REJECTS Wordy Briefs In Kari Lake Appeal; No Word On When They'll Consider Lake's Request (READ Orders)

UPDATE, 3/21, 9am: The Court accepted Heath's apology and allowed his instructive brief to be filed.



UPDATE, 3/20, 4:40pm: Young Ryan Heath apologized to the Arizona Supreme Court for missing today's 9am deadline to re-submit his proposed friend of the court brief, "due to the weekend and the fast timetable." His apology ("Notice of Errata"), his more concise filing and the other re-submitted amicus are posted below.

The Court has not yet indicated whether or not it will accept and consider these filings.

UPDATE, 3/20, 4:20pm: The Supreme Court has confirmed to Arizona's Law that it WILL (privately) Conference tomorrow to decide whether or not to hear Kari Lake's Election Contest appeal. 

(It is a "discretionary appeal", NOT an "appeal of right".)

UPDATE, 3/20, 3pm: The Supreme Court did not simply instruct self-described "civil rights activist" Ryan Heath to *shorten* his proposed friend of the court brief by the end of the day today. They also instructed him to tone down his efforts to introduce new facts into the appeal - that is not how the appeals process works.

The rare admonition is that Heath (and his client) must "limit any factual references to evidence that was admitted at trial or testimony at trial."

UPDATE, 3/17, 3:30pm: The Arizona Supreme Court REJECTED offered amicus (friend of the court) briefs from both Ryan Heath (below) and a group calling iteslf "America's Future". Both were much longer than permitted by court rules (which permit a 3,500 word filing).

The Court generously did give them a 2nd chance to follow the rules, extending their deadlines to Monday.

The Court has NOT announced whether it will then (privately) confer about whether or not to accept and decide Lake's appeal the following day. Earlier this month, the Court suggested it would likely conference the case on March 21. Conferences are generally added to the calendar on their website, but this has not been.

(The conference could also be delayed if the court decides to give the defendants/respondents a chance to respond to Lake's Thursday request to file her Reply about chain-of-custody issues (below).

***

Original article, 3/16, 8:45pm: "UPDATES: Lake Asks Court For "Short" Extra Filing To Correct Maricopa County's "Factual Misrepresentations" Re: Chain-of-Custody; Heath Re-Files His Schooling, Breaks Rules"

Two quick updates on Kari Lake's Election Contest appeal to the Arizona Supreme Court tonight:

1) Lake is asking the Court for permission to file a "short" Reply in order to correct "Respondents (sic) factual misrepresentations on the chain-of-custody issue". Lake's attorneys note that attorneys for the Secretary of State's Office do not object to the filing of the unscheduled Reply, that Governor Katie Hobbs does object and that Maricopa County did not respond.

Lake's request is likely prompted by the Response filed earlier this week by the County, as that is the one which focused most specifically on what it called "Lake's misleading new factual theory about chain-of-custody documents."

If the County and/or Hobbs is going to object to Lake's proposed Reply filing, they had better file it quickly. The Supreme Court indicated last week that it intended to privately conference on whether or not to consider Lake's appeal of her earlier losses this coming Tuesday. (However, the Court has not yet added it to its public-facing calendar.)

2) Self-proclaimed "civil rights activist" Ryan Heath has asked the Court for permission to file a friend-of-the-court ("amicus") brief to explain why the Court of Appeals misinterpreted previous case law. Heath has been unsuccessful in several previous attempts to place his arguments before the court - including filing his own Special Action petition/appeal with the Supreme Court.

However, in light of the Supreme Court's warning earlier this month that it would carefully review proposed amicus briefs to make sure they followed the guidelines, Heath's proposed brief is more than twice as wordy as permitted by the court's rules. Heath counts 8,422 words in his brief, significantly higher than the 3,500 words permitted.

(Because it is likely very similar to Heath's previous filings *and* because it is probable that the Supreme Court will reject it, Arizona's Law is not publishing it tonight. If you wish to review it prior to the Court's decision, please contact us at Paul.Weich.AZlaw@gmail.com.)

"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: Did U.S. Screw Navajo Nation Out of Colorado River Water Rights? U.S. Supreme Court Hearing Arguments On Monday In "Arizona v Navajo Nation" (READ Briefs)

The U.S. Supreme Court is hearing arguments on Monday in an Arizona case that could throw a new monkey wrench into Colorado River water plans. Arizona v. Navajo Nation is the latest chapter in the long-running judicial drama over water rights for the once-mightier Colorado, and Arizona, other western states and the federal government are arguing against the Navajo Nation's 20-year fight for rights.

The Navajo Nation's argument is that even though its initial treaties with the U.S. did not address water rights, a longstanding judicial doctrine ("Winters Doctrine") granting implied rights to water applies. When water rights were being adjudicated for the Colorado River, the U.S. did not include the Navajo Nation, deciding that the largest Native American sovereign nation had its rights to the Little Colorado River water. 

The Navajo Nation began (formally) disputing this in 2003, and sued the federal government for breaching its fiduciary duty, and Arizona (and other states intervened). The case has bounced around, but was dismissed by Arizona District Court Judge G. Murray Snow in 2019. The 9th Circuit reversed and allowed the Navajo Nation to attempt to force the U.S. to come up with a plan to meet their water needs.

Arizona, the other states and the U.S. are asking the Supreme Court to dismiss the Navajo Nation's case (and, claims) on two different bases: 

(1) that the Supreme Court retained exclusive jurisdiction on allocation of the Lower Colorado River Basin water in its 2006 Arizona v. California decision, and the Navajo Nation cannot force the U.S. to step in now; and

(2) that the Navajo Nation's claim that the U.S. breached its trust obligations under the treaties which only *implied* water rights cannot succeed because of a Supreme Court decision in 2011 (Jicarilla) that said the rights and obligations had to be *explicitly accepted* in the treaties.

The Navajo Nation rebuts those arguments by noting that it is not asking the courts to quantify its rights, and that the 1849 and 1868 treaties did establish a (now-breached) trust relationship with regards to the Colorado River water rights.

The Supreme Court's involvement in the rights to water in the Colorado River Basin goes back nearly 100 years, and many of their opinions have been titled Arizona v. Colorado (1931-2006). 

Their decision in this case could (eventually) upset a lot of already determined water claims under the previous cases, and could add a wildcard factor into the current negotiations on who needs to cut how much from the shrinking Colorado River supply.

Here (and, below the jump) are the key briefs which will be in front of the Justices Monday at 7am AZT/8am NNT. 

(A number of friend of the court ("amicus") briefs were also filed by non-parties. Please email Paul.Weich.AZlaw@gmail.com if you are interested and/or need help accessing them.)

(more, below)

Tuesday, March 14, 2023

UPDATE: In PEVL Lawsuit, Judge Inches Toward Allowing Legislators To Protect Some Texts/Emails (READ Order)

UPDATE, May 26: "In PEVL Lawsuit, Judge Inches Toward Allowing Legislators To Protect Some Texts/Emails"

In a Friday afternoon Order, U.S. District Court Judge Dominic Lanza inched towards allowing Arizona Republican lawmakers to shield some of their texts and emails regarding their efforts to eliminate Arizona's Permanent Early Voting List.

Lanza noted that the Fifth Circuit - Arizona is in the 9th Circuit - this month issued a couple of rulings in a Texas voter suppression case and a Mississippi non-election case. He gave the Arizona attorneys until June 9 to file supplemental briefs discussing the new (non-binding) opinions.

In both of those cases, the appellate court reversed lower court decisions requiring lawmakers to turn over docunents during discovery. They found that legislative privilege is not absolute, but broader than previously believed.

As detailed below, current and former Arizona GOP lawmakers are seeking to withhold 196 texts/emails. In 2021, they passed a law converting Arizona's popular Permanent Early Voting List into an Active Early Voting List. Voters would only continue to automatically receive early ballots in the mail if they participate in a certain number of elections. Plaintiffs allege that the motivation for the changes was to disproportionately impact minorities.

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UPDATE, 3/28, 4pm: "GOP Lawmakers Ask Judge To Protect Some Texts/Emails In Lawsuit About Eliminating Permanent Early Voting List (READ Response)"

Eight current and former GOP lawmakers told a judge today that he should protect 196 texts and emails that they do not want to turn over in a voting rights lawsuit because they turned over 1000's of form emails about the bill and because they are important parts of the legislative process.

The Response to the Plaintiffs' Motion to Compel was filed this afternoon, and adds color coding to the list of the communications at issue. The lawmakers suggest that they would be okay with U.S. District Court Judge Dominic Lanza privately (en camera) inspecting them first.

Some of the texts and emails are with outside persons and groups, such as the Arizona Free Enterprise Club, Arizona Tea Party leaders and former Maricopa County Recorder Helen Purcell. The Response claims that weighing several factors should lead the judge to protect those, as well.

Judge Lanza requested the Motion to Compel and today's Response, after the parties could not resolve the dispute among themselves.

As noted more fully below, the lawsuits are attempting to stop a 2021 law passed by Republican lawmakers and signed by then-Governor Doug Ducey removing the permanent aspect of voters' requests to receive early ballots by mail.

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Original article, 3/14: "Judge Asked To Force 8 GOP Lawmakers To Turn Over 196 Texts/Emails About Eliminating Permanent Early Voting List (READ Motion)"

Eight Republican lawmakers are resisting turning over almost 200 texts and emails about their 2021 plans to take the "permanent" out of Arizona's early voting list. Today, Plaintiffs challenging the constitutionality of that law filed a Motion To Compel production of the communications.

The lawmakers - Kelly Townsend, Michelle Ugenti-Rita, Karen Fann, John Fillmore, David Gowan, Jake Hoffman, J.D. Mesnard, and Russell Bowers - are claiming legislative privilege. Plaintiffs argue to U.S. District Court Judge Dominic Lanza today that 39 of those involve non-legislators/staff and should not be protected, and that the importance of the right to early voting weighs in favor of the others being turned over, as well.

Judge Lanza invited today's Motion last week, after the parties had requested an informal resolution of the discovery dispute.

The lawmakers will now file their Response, and Lanza will eventually make a determination.

Several groups sued to prevent SB1485 from taking effect, and changing the "permanent early voting list" to the "active early voting list" and instructing counties to not automatically mail early ballots to voters who had failed to return them within the preceding elections.

The plaintiffs claimed that the motivations of the Republican majority was to disproportionately impact minorities. The litigation has been proceeding since then, and became more urgent after efforts to stop the law through a referendum petition drive fell short.

No one has yet been removed from the early voting list , and there is some confusion on the requirements in the bill.

"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: Barrage of Responses Argue Kari Lake's Petition "Utterly Fails" To Give Supreme Court Basis For Overturning (READ Responses)

The Arizona Supreme Court last night received three responses to Kari Lake's Petition for Review. Lake "utterly fails" is the theme expressed in Maricopa County's opening, and it was emphasized by filings from the other Defendants in Lake's Election Contest - the Secretary of State's Office and the Governor's Office: 

"Lake’s Petition utterly fails at fulfilling its limited task. It does not present any argument illustrating a need for this Court to review the court of appeals’ Opinion. It does not identify a single novel legal issue that this Court needs to clarify. And it does not identify any legal precedent that should be overturned or abrogated."

The Response filed on behalf of Lake's opponent, pointedly referred to as "Governor Katie Hobbs", adds "(t)he only things that are new are a handful of misrepresentations and distortions of the trial court record."

Lake's Petition can be read in this previous article. The seven Supreme Court Justices will now confer on March 21* about whether or not to hear Lake's appeal, or whether to simply allow the lower courts' rulings to stand.

* The Court indicated that private conference date in their previous Order expediting consideration, although it is not yet listed on their calendar.

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


 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.


BREAKING: AZ House Speaker Toma & Senate Pres. Petersen Waived Leg Privilege, Must Sit For Depos In Transgender Sports Case; But, Minor Girls Do, Too

In a twist this afternoon, a judge issued an Order compelling Arizona House Speaker Ben Toma and Senate President Warren Petersen to sit for...