Monday, May 15, 2023

BACK AGAIN: U.S. Supreme Court Forced To Reconsider Arizona's Mystery Title 42 Case

When last we checked in with the status of Arizona v. Mayorkas, a former Arizona Deputy Solicitor General was ready to argue the Title 42-related case in front of the U.S. Supreme Court when the justices  mysteriously* yanked the Title 42-related case from its calendar just one week's notice. The case has been in a judicial purgatory for the past two months.

Now, with Title 42 in the immigration enforcement dustbin, the U.S. Department of Justice is now trying to send the case to the judicial dustbin. 

Not so fast, the Arizona-now-Louisiana Deputy AG tells Arizona's Law. Drew Ensign will tell the Court that the case should go on, noting that it is important for future, similar situations, and that DOJ is directly contradicting what they argued to the Supreme Court last year.

Confused? We do not blame you. Here is our most recent article: "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"

The origin of this case makes it all the more confusing: Arizona - under previous AG Mark Brnovich - and the other states - were attempting to INTERVENE in a case brought by private entities to force the Biden Administration to leave the pandemic-era Title 42 immigration restrictions in place. It is the lower courts' refusal to allow the states to intervene that is before the Supreme Court.

In a letter to the Court (published) today, the U.S. argued that the case is now, indeed, moot and that the lower courts are waiting for the highest court to dismiss. That letter is below.

Since Arizona attorney Ensign is now retained by Louisiana's Attorney General to handle this case on behalf of the states, Arizona's Law asked for their position. Ensign states that they intend to oppose the DOJ by the end of the week. He addressed the mootness issue with the Court back in February, and the DOJ's "letter notably makes no attempt to engage with those arguments or explain why the voluntary cessation and capable-of-repetition/yet-evading-review exceptions do not apply in this case."

In other words, it is similar to many pregnancy and abortion cases; even if the woman involved in the case is no longer pregnant, the court should hear the case because the same situation will continue to recur and evade the court's review. Here, future temporary federal orders could be issued and expire before the legal issues are resolved.

We will continue to follow this unusual case. It will not evade our review and reporting.

Arizona's Law is also monitoring the Supreme Court for decisions in two other Arizona-related cases: Arizona v Navajo Nation (water rights) and Jack Daniel's v VIP (parody products)

"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.

* The Court gave no explanation why it was vacating the argument or what would then happen to the case.



Wednesday, May 10, 2023

BREAKING: Arizona Federal Judge To Question Alan Dershowitz About Why He Should Not Be Sanctioned In Failed Kari Lake/Mark Finchem Pre-Election Lawsuit

Nationally-known attorney Alan Dershowitz will be on the hotseat in an Arizona courtroom later this month, as U.S. District Court Judge John Tuchi will ask him why he should not have to reimburse Maricopa County for some of its legal fees in a Kari Lake/Mark Finchem pre-election lawsuit.

The Order setting a May 24 evidentiary hearing came four months after the parties finished briefing Maricopa County's request for $141,000 in sanctions as a result of the dismissed case "to prohibit the use of electronic voting machines" in last year's elections. Judge Tuchi then found that the plaintiffs "made false, misleading, and unsupported factual assertions" when they repeatedly stated that Arizona does not use paper ballots, and authorized sanctions.

Near the end of the briefing on sanctions, Dershowitz requested that he be released from any possible penalties, claiming that he was barely involved in the case. He was listed as "of counsel" to Lake and Finchem, and (belatedly) completed an application to be permitted to practice in the Arizona court.

Judge Tuchi is allowing 90 minutes for the May 24 hearing, and stated "the Court also will question, at a minimum, Messrs. Parker and Dershowitz."

Lake, Finchem and/or their attorneys also have sanctions pending in their Election Contest cases.

"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, May 9, 2023

SUNS UPDATE: Tonight On Court, Tomorrow In Court; Bankruptcy Hearing On Whether Suns Violated Bally Sports' Automatic Stay (READ Filings)

UPDATE, 5/10, 1:45pm: At the conclusion of today's hearing, the Bankruptcy Court Judge ruled that the Phoenix Suns had VIOLATED the automatic stay laws, and VOIDED their new TV contract for next year.

Judge Christopher Lopez noted in his Order (below) that he is reserving the right to sanction the Suns by awarding attorneys' fees and costs to Bally. He also noted that the portion of the new TV deal for broadcasting the Phoenix Mercury's WNBA games is still in place.


***

The Phoenix Suns face a critical Game 5 in their playoffs series, on the Denver Nuggets' home court.

Tomorrow morning, the Phoenix Suns face a critical hearing, in Bally Sports' home Bankruptcy Court. And, instead of Book, KD, Ayton, CP and crew, the team will rely only on DC to carry the workload.

The issue is whether or not the Suns violated the Bankruptcy Code's Automatic Stay by prematurely entering into a new broadcasting agreement for next season's games. Once Bally's parent company (Diamond Sports) filed for bankrupcty protection, other parties are limited in the actions involving Bally that they can take.

Even though Bally was done covering Suns' games at the end of the regular season last month, they claim that the contract was valid through the conclusion of the entire NBA season and that they have a right to try to match any other broadcasting rights offer.

The Suns Executive Vice President Dan Costello is expected to testify, and told the court yesterday that the new contract has a clause stating that it is subject to Bally's rights. Bally's replied today that this is the first they have heard of that, and that it the Suns' "belated sleight of hand cannot camouflage the fact that the Suns have already confirmed through their actions that they have no intention of complying with those backend rights, and actions speak louder than words."

The Bankruptcy Court judge will conduct an evidentiary hearing tomorrow.

Meanwhile, the judge today ordered Bally's to make (another) disgorgable payment to the Arizona Diamondbacks this week. The network continues to broadcast Diamondbacks games, and their dispute in Bankruptcy Court continues.

"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, May 5, 2023

BREAKING: Kari Lake's Attorney Files New Lawsuit To Get Video From Runbeck (READ Complaint)

UPDATE, 5/23, 7:40PM:

UPDATE, 5/16, 8pm: 

Judge DOES ALLOW @KariLake to present evidence showing Maricopa "failed to conduct any level 1 signature verification".

He's also not impressed with ever-changing theories: "also recognizes the contradiction between this new theory & the other allegations in Count 3". Contradiction, per Judge: "her own affiants declare that they conducted signature review at level 1."

"The Court will give such affidavits and the evidence presented at Trial the weight that each is due. Plaintiff is further bound by her concession that she “brings a Reyes claim, not a McEwen claim. She challenges Maricopa’s failure to act, not its action on any particular ballot.”

Chandler attorney Tom Ryan and I will be providing live coverage of the trial, starting tomorrow morning at 9am, on Twitter. (twitter.com/ArizonasLaw)


UPDATE, 5/16, 10:30am: BREAKING: DON'T FENCE ME IN; Kari Lake Attorneys Tell Judge He Got It Wrong By Boxing Them In Pre-Trial

Judge Peter Thompson granted Kari Lake a trial on her signature verification count last night, but set forth the constraints that he says they are attempting to prove in order to prevail. By 2am, Lake's attorneys had filed a Motion to reconsider and arguing why the judge got it wrong.

"The Court held that Plaintiff alleged only that Maricopa failed to perform “ANY steps to comply with level 2 or level 3 screening or notification of electors to cure ballots where level 1 screeners found signatures were inconsistent.” Order at 3. However, the Complaint pleads violations at all levels of signature verification i.e., level 1 as well as levels 2 and 3. In addition, the Complaint pleads a consistent factual bases for this Court to find that Maricopa’s misconduct in the 2022 general election with respect to levels 1, 2, and 3, and that 130,520 ballots would fail as egregious mismatches and another 167,176 2022 ballots would fail Maricopa’s signature-verification process."

The oral arguments last Friday were the specific opportunity for Lake to explain to the judge what they were alleging and why the Count should go to trial tomorrow. The judge took a significant amount of time and effort reading and listening to their somewhat shape-shifting arguments, and determined what he would consider from their witnesses. 

This new Motion appears to be an effort to extricate themselves from a difficult box that they placed themselves in.

***

UPDATE, 5/15, 8:30pm:

The long-awaited decision from Judge Thompson. There will be a trial on Count 3 (sig verification) on Wednesday. The Lake effort to revive Count 2 (tabulators) is DENIED. (Ryan Heath's amicus brief is REJECTED.)

UPDATE, 5/12 1pm: "BREAKING: Kari Lake's Attorney Files New Lawsuit To Get Video From Runbeck"

In a further expansion of Kari Lake's efforts to overturn last November's gubernatorial election, one of her attorneys filed a NEW public records lawsuit this week, seeking to obtain post-election video from Maricopa County contractor Runbeck Election Services.

The new case has been assigned to Superior Court Judge Joseph Mikitish, and there are no dates set yet.

Maricopa County has utilized Phoenix-based and nationally-used Runbeck for a number of elections-related tasks, and that has become an issue in Lake's ongoing Election Contest lawsuit. We the People Arizona is represented by Bryan Blehm, and the Complaint cites the decisions in the public records lawsuits filed against the State Senate and Cyber Ninjas as support. The Court of Appeals determined that Arizona's public records laws did apply to Cyber Ninjas.

Arizona's Law contacted Maricopa County officials, and they reiterated their previous answer to Blehm, that the County does not have the video to reply to public records request. Runbeck's attorneys had also declined to turn over the video, stating there is "no legal obligation to do so."

Blehm has several other public records request lawsuits filed against both Maricopa County and the Arizona Secretary of State's Office. He had indicated to the judge in the Election Contest case that he might seek to fold the suit about the ballot envelopes into the Election Contest, but he did not.

Because the Election Contest statutes do not allow for discovery (other than inspection of ballots), these PRR suits are a sort of a parallel track. However, none of them are being expedited by either the plaintiff or the Court.




***

UPDATE, 5/12, 12:45pm:

We can now post the Replies filed yesterday. We are still looking for the *Responses*.

Here they are, and here is our (then-)live coverage of this morning's oral arguments. (Thank you to the great folks at the Superior Court Clerk's office and several attorneys for providing the filings.)

 

***

UPDATE, 5/10, 7am:

Yesterday (at 11:59pm) was the deadline for parties to file any Motions they felt were justified in the wake of the Supreme Court sending the case back to determine Count 3 (signature verification). We received and posted the Secretary of State's supplement to their previous Motion to Dismiss below. Here are the rest of the filings:

  • 1) Kari Lake's Motion for Relief on Count 2 (logic and accuracy)
  • 2) Maricopa County's supplemental memo to dismiss Count 3
  • 3) Katie Hobbs' (as Contestee) supplemental memo to dismiss Count 3
  • 4) Ryan Heath's Motion and Amicus Brief on behalf of independent voter David Mast

At first blush, the big surprise is that Lake did NOT attempt to fold in the separate public records request lawsuit related to early voting ballot envelopes. (That case was reassigned yesterday to Judge Melissa Iyer Julian.) Lake had indicated to the Court (see below) that consolidation would be presented. (Probably a good non-move by Lake's counsel.)

The Motion to throw out the December dismissal of Count 2 alleges that there was newly-discovered evidence and/or fraud/misrepresentations that warrants a new look at the allegations. In the 16-page Motion (with nearly 250 pages of exhibits (below), they flesh out their claims that Maricopa County "secretly tested" all of its tabulators after it had "falsely certified" them (and before Election Day). Lake is alleging that:

"...not only did Maricopa officials knowingly violate the law mandating L&A testing, but that they knew about and planned the Election Day debacle. Further, Jarrett’s demonstrably false and conflicting testimony shows that Maricopa officials are attempting to cover up their misconduct."

Although it was indicated that whistleblowers' testimony would be significant, the motion relies upon analysis by Clay Parikh. 

Maricopa County's supplement does a very good job of explaining the signature verification laws and processes, noting that Arizona law requires them to determine whether the signature on the ballot envelope is "consistent" or "inconsistent" with those in the voter's records. It is not a more extensive analysis that would be involved in a verfication, and is one of several fraud prevention measures set forth by law.

Responses are due before midnight tonight, Replies tomorrow, and there will be oral argument on Friday. 

Heath, the attorney who has offered his thoughts and insights on this case to several of the judges/justices previously (and attaches them to this brief), makes his arguments as to why the judge should proceed on Count 3 - and that he has already seen enough evidence to set aside the November 2022 election results.

 

***

UPDATE, 5/9, 3pm, "NEW: "It is time for finality"; Secretary of State Asks Court To Dismiss Last Count Standing In Kari Lake Election Contest (READ Motion)":

Saying "it is time for finality", Arizona Secretary of State Adrian Fontes today urged the judge to -again - dismiss the last count standing in Kari Lake's Election Contest lawsuit.

Fontes's attorneys filed the "Supplemental Memorandum" today, and the other parties to the case are also expected to file motions (or, supplements) by midnight tonight. This first one is published below.

The memorandum notes that Judge Peter Thompson must go back in time to when only the Election Contest Complaint had been filed, and determine whether those allegations state a provable claim to overturn November's election results. They do not, the memo states.

It goes on to argue that the Arizona Supreme Court's reversal and remand of the dismissal of Count 3 specifically did not order a trial on the signature verification count "seven months after the election". Further, the Complaint's allegations were too hazy and conclusory to survive the motion to dismiss and comparing the ballot envelopes to multiple signatures in the voter's record is appropriate as a matter of law.

Lake is expected to file motions to consolidate the case with a separate lawsuit to obtain the ballot envelopes, and a motion to reconsider the dismissal of Count 4 (dealing with logic and accuracy testing). The Supreme Court affirmed the dismissal of that count.

***

UPDATE, 5/9, 12:30pm, "NEW UNCERTAINTY: Judge Recuses Himself In Ballot Envelopes Lawsuit Tied To Kari Lake Election Contest (READ Minute Entry)": Kari Lake's attorneys are expected to file a motion today to combine her Election Contest with a public records lawsuit to obtain ballot envelopes. The judge in the latter case is now recusing himself, adding some (temporary) uncertainty into the proceedings.

Judge Michael Gordon was assigned to the We the People public records suit on April 28. The Minute Entry recusing himself - without a stated reason - was filed this morning. Civil Presiding Judge Danielle Viola will assign a new judge to the case. 

An interesting outcome could be that she taps Judge Peter Thompson to handle the related matter, as consolidation of the two very statutorily-driven cases seems unlikely. (Thompson has been handling the Election Contest.) He would then be better able to manage the interplay between them.

***

UPDATE #2, 5/8: Superior Court Judge Peter Thompson set a tight timeline for the parties this afternoon, and will hear oral arguments on whether he should hold a trial on Kari Lake's signature verification Count 3 next week.

Saying the statutes give him "little wiggle room", Thompson asked for Motions to be filed tomorrow, Responses on Wednesday, and Replies the following day.

We expect three separate Motions tomorrow:

1) Defendants to re-package/re-file Motions to Dismiss Count 3 (sig verification)

2) Lake to Move for Reconsideration of the dismissal of Count 4 (logic and accuracy)

3) Lake to Move to Consolidate this case with their public records lawsuit re: ballot envelopes

After hearing oral arguments Friday morning, Judge Thompson said he "will do my best" to rule later that day. That is important because his rulings will determine whether or not there will be a full-blown, 3-day trial starting next Wednesday. ("I can't give you a blood oath promise, but I know time is short." He noted several times that he is a one-person crew when it comes to deciding and writing up his rulings.)

Kari Lake remotely joined the hybrid status conference shortly after it began, and the judge noted her appearance at the end of the conference. 

***

UPDATE, 5/8: We will be providing live coverage of this status conference at 2pm, here on Twitter:

*** 

Original article, 5/5: "UPDATE: Kari Lake Tells Judge She May File New Lawsuits To Overturn Election; Status Conference Set For Monday (READ filing, Order)"

Within hours of being sanctioned by the Arizona Supreme Court for repeatedly making "unequivocally false" statements to the Justices, Kari Lake's attorneys informed Superior Court Judge Peter Thompson that they are "contemplating" a new lawsuit to allege her constitutional rights have been violated, and that they may re-challenge Maricopa County's logic and accuracy testing.

Judge Thompson has set aside 30 minutes for a status conference this coming Monday afternoon (2pm).

Lake's attorneys also indicated that they will try to consolidate the long-running Election Contest case with a recently-filed public records lawsuit to get the early-voting ballot envelopes from the County.

These three possible actions to extend Lake's legal battle to claim victory in last November's gubernatorial election were set forth in the Motion for a Status Conference.

"Plaintiff-Contestant Lake is also contemplating a motion to reconsider the dismissal of Count IV (logic-and-accuracy testing) under ARCP 60(b)(3) within the same likely time frame as the proceedings remand. Indeed, she may also bring a new and separate action under 42 U.S.C. § 1983 and state law to press her federal and Arizona constitutional claims." (The U.S. Code section cited deals with claims that constitutional rights have been violated.)

The public records request lawsuit was filed on April 25 and has been assigned to Judge Michael Gordon. No effort to expedite that case has been made, and an effort to consolidate a case contending that Maricopa County must turn over voters' signatures and envelopes with an Election Contest would be unusual. Even though the cases are related by subject, the Election Contest statutes are very limiting in what may occur.

Yesterday, the Arizona Supreme Court sanctioned Lake's attorneys for their repeated false statements to the state's highest court that it was an "undisputed fact" that more than 35,000 ballots had been injected into Maricopa County's election tallies. 

While noting that Lake's alleged support for the ballot injection claim are two exhibits - "one exhibit that included an estimate... and a different exhibit showing a precise count" - Chief Justice Robert Brutinel focused on the attorneys' statements that the injenction was undisputed. "More to the point here, this was certainly disputed by the Respondents. The representation that this was an "undisputed fact" is therefore unequivocally false." (He then footnoted part of the ethics rules stating "the lawyer must not mislead the tribunal by false statements of law or fact or evidence that the lawyer knows to be false.")

The Supreme Court thus decided not to sanction Lake's attorneys by forcing them to repay the defendants' legal fees, but by the "extraordinary remedy" of paying a fine of $2,000 to the Court. There was no dissent.

"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...