Tuesday, April 4, 2023

DECISION WEEK Begins For Judge In Languishing Abe Hamadeh Election Contest --Arizona Constitution

Abe Hamadeh, the unsuccessful candidate in an extremely close election for Arizona Attorney General, should finally learn the outcome of his January 4 Motion for a New Trial in his Election Contest lawsuit.

The Arizona Constitution requires Superior Court judges to decide any matter within 60 days of it being submitted to him or her. That deadline pops up for Mohave County Judge Lee Jantzen on several outstanding matters over the next few days.

Here are those Motions:

a) Motion for New Trial (filed by Hamadeh 1/4). Reply filed 2/6.

b) Motion for Attorneys Fees (filed by successful candidate Kris Mayes 1/3). Reply filed 2/3.

c) Motion to compensate ballot inspectors (filed by Navajo County 1/4). Reply filed 2/6.

d) Petersen/Toma Motion to file amicus (filed 1/25). Response filed 2/2 (no reply filed).

e) Motion For An Order... (filed 12/28). Response filed 12/29 (no reply filed).

When the 60 day period begins to run the day after a Reply is filed or after the deadline for a reply passes, the deadline for the attorneys' fees motion hits today and the others follow in quick succession. 

It would appear that the time for a decision on Motion (e) has passed, and that the judge may have simply ignored it. However, that Motion is in a different category, because it notes that there was not a signed, appealable Order in the case. (There still is not.)

In addition to the "speedy disposition" provision in the Constitution, the Election Contest statutes also add urgency to the judge's decisions. According to A.R.S. §16-676(B), "the court shall continue in session to hear and determine all issues arising in contested elections."

The constitutional provision also calls for the Arizona Supreme Court to pass a rule to "provide for the speedy disposition of all matters not decided within such period." The Court's rule only calls for the clerk of each Superior Court to file a report at the end of each quarter - in this case, June 30 - listing undecided matters and which judge is responsible for each.*

Jantzen ruled against Hamadeh after an anti-climactic evidentiary hearing, where even Hamadeh's counsel acknowledged that they had not been able to prove their case after an inspection of some ballots in Maricopa County. After a statutory recount, Mayes won by less than 300 votes.

Hamadeh has spent this long quiet period adding attorneys to his legal team - potentially for either a new trial or an appeal. And they recently nudged the judge when they filed a supplement explaining why the Arizona Supreme Court's Order in Kari Lake's Election Contest supports their request for a new trial. (Defendants then explained why it should not.) Within the week, Hamadeh should know more about where they will be deployed.

(Arizona's Law has been actively monitoring this case, and has been instructed by Mohave County Superior Court and the Clerk's Office that any rulings will be promptly posted on their web page. As of this publishing, no new rulings have been entered.)

* Deeper into the weeds, it is an open discussion as to whether or not this rule actually abides by the mandate in the Constitution.

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

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  1. Is there any case law about whether that 60 day limit gets moved back when a plaintiff does what Hamadeh has done here, and submitted a whole new argument very late in the process (i.e. the whole "AZSC/laches" issue?) that generates multiple responses from the defendants, all of which Jantzen will need to consider?

    1. Good question. But, for several reasons, I doubt it. (e.g. the Const'l provision is "submitted" - that allows for "whole new argument(s)", the Supreme Ct "rule" has plenty of wiggle room, there's no real penalty, etc.)


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