Thursday, June 29, 2023

BREAKING: 9th Circuit DENIES Tom Horne Emergency Petition In Challenge To AZ's School Sports Ban Of Transgender Girls

Worried about the judge assigned to a challenge of Arizona's law banning transgender girls from participating in school sports, State Superintendent Tom Horne asked the 9th Circuit to order the judge to move the case to Phoenix. This afternoon, that emergency petition was DENIED.

The law is being challenged by the parents of girls at a private school in Tucson and a public school in Phoenix. District Court Jennifer Zipps - in Tucson - twice denied Horne's efforts to release the case to a Phoenix judge (i.e. change of venue). So, Horne - represented by outside counsel Dennis Wilenchik and Department of Education inside counsel (and former legislator) Maria Syms - filed an emergency motion to force Zipps to transfer the case.

Without requesting a response, the three judge panel quickly denied the petition. "Petitioner has not demonstrated a clear and indisputable right to the extraordinary remedy of mandamus, or any other relief. Accordingly, the petition is denied."

The parents are seeking a preliminary injunction to prevent enforcement of the "Save Women’s Sports Act". Their 11- and 15-year old children wish to compete in volleyball, soccer, basketball and cross-country.

Earlier this month, Judge Zipps permitted Republican legislative leaders Warren Petersen and Ben Toma to intervene in the case, as Attorney General Kris Mayes' declined to defend the 2022 ban.

 "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.

THREE LITTLE UPDATES: Diamondbacks, Lake PRR, Eastman Disbarment

I'm pinched for time this morning - as you probably are - so here are three quick updates on cases Arizona's Law has been following. (Source documents will be posted later.)

1) Today's emergency hearing on whether Bally Sports can pull the broadcasting plug on the Arizona Diamondbacks games tomorrow has been postponed... by agreement of the parties. This means that fans can continue to watch the baseball games on cable or as they have been while the parties continue negotiations. 

The bankrupt parent of Bally Sports AZ (Diamond Sports) filed an emergency motion last week asking the judge to allow them to pull the plug so that they would not have to make the remaining rights payments for this season and beyond. They said they were losing significant money on the agreement.

2) In one of Kari Lake's (and allies') public records request lawsuits against Maricopa County*, Superior Court Judge John Hannah this week dismissed nearly all of the County defendants, deciding that Maricopa County Recorder Stephen Richer was the only proper party, as the custodian of the early voting affidavit envelopes Lake seeks.

The judge said at the hearing that he believes there needs to be an opportunity to develop and present evidence regarding the privacy and best interests of the state as grounds for withholding the voters' signatures on the envelopes under the public records law.

Earlier, Judge Hannah agreed to seal the exhibits Lake's attorneys had presented in their Response to the County's Motion to Dismiss. The County moved to seal the Democrat's signatures, in part, to protect Lake and her attorneys from possible prosecution. Lake protested, but the judge sealed it.

* Lake's allies also have a public records suit active against the Secretary of State's Office.

3) California attorney and law professor John Eastman is facing disbarment in that state, in an ongoing proceeding. He defended his right to call former Arizona State Rep. Mark Finchem and current Arizona State Senator Wendy Rogers. He wants to call them to discuss their "hearing" with Rudy Giuliani in November 2020 and to explain why Eastman was okay to make the January 6 arguments that he did.

The judge has not yet decided whether to allow them to testify. Lake attorney Kurt Olsen and Lake witness Heather Honey are also included in the witness dispute.

Wednesday, June 28, 2023

UPDATE: Nightmarishly Slow Pace Hampering Three 2022 Election Contests (ANALYSIS)

Arizona's Law has a dream that all of the 2022 Election Contest cases will be completed before 2024. However, slow walking Republican plaintiffs and slow paced courts are combining to make that look less likely (than it should look).

Let's get updated on where each case is and discuss where some grease could be applied.

1) Kari Lake, contesting the Governor race:

(UPDATE, 7/9: The Court of Appeals has transferred Lake's appeal from Division 1 (Phoenix) to Division 2 (Tucson). Please click here for further explanation.)

Although we hesitate to put this idea in the universe, but the grease needs to be applied to Lake's attorneys, Bryan Blehm and Kurt Olsen. Superior Court Judge Peter Thompson quickly ruled in the 2nd trial last month. Lake filed a Notice of Appeal on May 31, but has FAILED to file anything since then to move it along. 

The Notice of Appeal indicated that they *might* try to transfer it to the Arizona Supreme Court or otherwise try to move it along; they have done neither. In fact, they have ignored their obligations under Rule 11 of ARCAP (the Arizona Rules of Civil Appellate Procedure). They were required to order transcripts by June 14 and then were required to notify the parties by June 16.

The Clerk of the Superior Court has until the end of this week to transmit the record to the Court of Appeals.

2) Abe Hamadeh, contesting the Attorney General race:

(UPDATE, 7/9: Mayes responded to Hamadeh's request for a scheduling conference (the "nudge the judge" move), and Hamadeh quickly replied. Mayes suggested the conference is not needed because there is no further discovery or trial permitted under the accelerated election contest statutes. Hamadeh retorted that it is in the interest of expediency in case his long-outstanding motion for a new trial is granted.)

Unlike the other two cases, this one has not yet made it from the Superior Court level to the appellate level. We need an 18-wheeler of grease, because it needs to be spread around. Judge Lee Jantzen has had Hamadeh's Motion for a New Trial pending since February. When pressure was mounting in April, he set it for an oral argument... a month away. It has now been five weeks since he listened to the parties re-hash their January arguments. 

We published an article back in April talking about the apparent confusion about when the election contests require immediate attention and when they do not. Combined with the optional nature of the court rule for election cases and the lack of transparent enforcement for the *(Arizona) constitutional* requirement that matters be decided within 60 days, we have a wreck that was waiting to happen. The wreck has occurred in this case, and Hamadeh's (expanded) legal team tried the nudge the judge move last week. (Hamadeh's steady stream of "supplemental authority" filings have been a minor contributing factor, giving the judge a bit of cover for the stagnant case.)

3) Mark Finchem, contesting the Secretary of State race:

(UPDATE, 7/7: The trial court record for the 2nd Finchem appeal (re: sanctions) has been sent to the Court of Appeals. Finchem is now on the clock to finish the consolidation. (July 17))

Finchem's case  - the one hampered by a combination of bad facts, bad theories and interesting lawyering - is also stuck somewhere in the murky world between trial court and Court of Appeals. It has been a "Zombie Appeal" for the past several months, as explained in this February article. (I am not sure what impact grease could have on a zombie, but....)

Rather than trying to push the appellate process after being given 2nd chance, Finchem's attorney asked for it to be put on hold while he waited to be sanctioned by the now-not-in-a-rush trial court judge. Those sanctions eventually did happen ($48,000), but now attorney McCauley has apparently filed a second appeal and the Court of Appeals is asking him to merge the two. 

Neither the Court of Appeals nor the Superior Court Clerk seems to know how to handle this odd move, and they appear to be wary of again breathing life into Finchem's moribund appeal. (Like Lake's counsel, Finchem's seems to have blown through the Rule 11 deadlines, too. So, the Clerks' hesitance is understandable.)

Conclusion: So, legal grease might help. But, different attorneys, different judges, and different procedures might help in the future, too. As we have noted - here and in previous articles - there are several ways statutes, rules and processes can be improved for future elections/contests. Arizona's Law has already begun to explore some options with the courts and will continue to work on them. It's a dream that can come true, stay tuned.

Thursday, June 22, 2023

BREAKING, TURNABOUT IS FAIR PLAY: Stephen Richer - PERSONALLY - SUES Kari Lake and Her Entities For Defamatory Statements

Maricopa County Recorder Stephen Richer has turned the tables on Kari Lake and her fundraising entities, suing them for defamation. He is suing them personally, alleging that false claims alleging "bogus ballot injection", and "ballot size sabotage" have caused significant harm to him and to our elections.

Experienced defamation and First Amendment attorney Dan Maynard is representing Richer in the case against Lake, Lake for Arizona and her Save Arizona Fund.

Richer has been the Republican Recorder since winning the office in the 2020 election, and recently began raising money for a reelection campaign next year.

Richer told Arizona's Law earlier today - between the end of his testimony in the John Eastman disbarment proceeding and filing of the defamation suit - that he yearns for the return of a sane Republican Party.

In his op-ed on the Arizona Republic's website, he says "I’ve even lost friends and lifelong relationships because Lake has falsely painted me as a criminal."

"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.

Stephen Richer testimony in John Eastman disbarment proceeding

UPDATE, 6/23, 5pm: The California Bar attorneys clarified today that they WILL be calling former Arizona Elections Director Bo Dul to testify on Tuesday morning. Ms. Dul is currently Gov. Katie Hobbs's General Counsel. As with yesterday's testimony from Maricopa County Recorder Stephen Richer, Dul is being asked to refute John Eastman's "multiple references to fraud and illegality in Arizona" (in the 2020 elections). 

The judge has not yet decided whether to allow testimony from Arizona's Mark Finchem and Wendy Rogers. Eastman has asked them to testify about their November 2020 "hearing" with Rudy Giuliani. The Bar has asked that they be precluded from testifying.

The hearing is expected to continue Tuesday through Friday of next week and then be picked up in either late July or August.

**********

UPDATE,1:15pm: Reaction from @stephen_richer to @arizonaslaw re: the need for his testimony:

"It's a sad situation. But I was subpoenaed. And I appreciated the opportunity to speak to the bipartisan tests and checks and audits that go into ever election."

*************


The judge in the disbarment proceeding is considering a motion from the Bar to exclude testimony from Arizona's Mark Finchem and Wendy Rogers. The ex-Representative and current-Senator participated in the "hearing" featuring Rudy Giuliani weeks after the November 2020 election. Eastman wants them to testify "regarding the information learned during that 10½-hour hearing and elsewhere during the course of (their) investigations."

Rogers tweeted one of our tweets referencing the pending Motion and asked "What are (sic) the court afraid Finchem and Rogers will say?" She deleted the tweet after it was pointed out that the judge has not yet ruled.



Here's the pending Motion:

"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 DISMISSES Challenge To Arizona's Voter-Passed Anti-Dark Money Initiative (READ Decision)

 A judge has dismissed a challenge to the Voters' Right To Know initiative passed overwhelmingly last November by Arizona voters, finding that the new law is not unconstitutional on its face.

The measure requires the disclosure of the original source of campaign media spending, and the Center for Arizona Policy and the Arizona Free Enterprise Club challenged the constitutionality.

Superior Court Judge Scott McCoy noted that the dark money groups bore a "heavy burden" to overcome the presumption that voter-approved measures are unconstitutional, and that they failed to do so. 

Because they surprised the court - his words - at oral argument by also saying the disclosure law is also unconstitutional as it is applied to them, McCoy will permit them to amend their Complaint to show how it has already impacted them. (Proposed rules implementing the measure are about to be released for comment by the Arizona Clean Elections Commission.)

Terry Goddard, former Arizona Attorney General and the Chair of the Stop Dark Money group which placed the measure on last year's ballot, celebrated the ruling. His statement to Arizona's Law:

"It is a scholarly and eloquent decision that refutes each of the legal challenges brought in the state action conclusively.  Many thanks to the great lawyers at the Campaign Legal Center representing Stop Dark Money and at Osborn Maledon representing the Citizens Clean Elections Commission."

There is also a federal court challenge to the law still pending.

Disclosure: The author of this article participated in the Stop Dark Money campaign(s).

"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, (R)EJECTION: Bally Sports Asks Court To Take Diamondbacks Games OFF THE AIR Starting Next Week, Losing "Significant Sums" On Agreement

Bally Sports Arizona wants to stop airing Arizona Diamondbacks baseball games beginning next week. The company is currently in a bankruptcy reorganization, and tells the court this morning in an "emergency" motion that it "lose(s) significant sums on the Diamondbacks Agreement" (which is supposed to run until 2035).

The hearing on the motion to reject the rights agreement is scheduled for next Thursday.

Major League Baseball has made promises to the Diamondbacks and other teams under contract with Diamond Sports entities that it would make sure fans will be able to watch the games, but the details are uncertain and it is sure to lose many viewers accustomed to watching their first place Diamondbacks on their normal cable channel.

The next payment from Bally Sports to the Diamondbacks is due on July 1 and was to cover the remainder of the season. They tell the court that

 "the Debtors have determined that Diamondbacks Agreements is currently significantly unprofitable and is projected to be increasingly unprofitable in subsequent years. The current costs associated with performing under the Diamondbacks Agreement outweigh the revenues the Debtors are able to obtain through broadcasting Diamondbacks games pursuant to the Diamondbacks Agreement. As such, the Debtors have concluded that the Diamondbacks Agreement does not fit within the Debtors’ long-term strategic plan and therefore is not necessary to the Debtors’ business. Accordingly, the Debtors have made the reasonable determination that the Diamondbacks Agreement currently does not, and is unlikely in the future to, provide a net benefit to the Debtors or their estates."

The Diamondbacks had earlier asked the court to "compel" Bally Sports to make a decision on the contract. After a two day hearing, the Court ordered Bally Sports to make the payment it had defaulted on in March, and advised the parties to "keep talking".

Bally Sports pulled out of its joint venture with the San Diego Padres several weeks ago. Fans are able to stream their games on the MLB Network and on several satellite services (see 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.

BREAKING: U.S. Supreme Court Rules AGAINST Navajo Nation In Long-Running Colorado River Water Rights Case

 In a 5-4 decision, the U.S. Supreme Court ruled against the Navajo Nation in a long-running dispute over water rights to the Colorado River.  Arizona v. Navajo Nation has been 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.

Justice Brett Kavanaugh wrote the majority opinion and Justice Neil Gorsuch wrote the dissent. His dissent was joined by the three liberal justices.

The decision reverses the 9th Circuit's decision that the U.S. had a duty to try to get water rights from the Colorado River for the Navajo Nation, based on the 1868 treaty that established the reservation in Arizona, New Mexico and Utah. (The treaty followed nearly 20 years of war between the parties.)

The five-justice majority found that the treaties did not establish a responsibility for the U.S. to take affirmative steps to secure the water rights, and notes that the Navajo Nation has water rights from the Little Colorado and San Juan and infrastructure funded by the federal government. 

In light of the treaty’s text and history, we conclude that the treaty does not require the United States to take those affirmative steps. And it is not the Judiciary’s role torewrite and update this 155-year-old treaty. Rather, Congress and the President may enact—and often haveenacted—laws to assist the citizens of the western United States, including the Navajos, with their water needs.

Justice Clarence Thomas went further in his one-man concurrence, opining that he finds it "troubling" that his colleagues frequently write about the trust relationship between the U.S. and the sovereign Native American nations. Thomas is concerned that that too often results in finding a fiduciary-type relationship.

Gorsuch writes that the majority botched the case by not understanding what the Navajo Nation is even asking for in this long-running legal battle. It's a great opening paragraph:

Today, the Court rejects a request the Navajo Nation never made. This case is not about compelling the federal government to take “affirmative steps to secure water for the Navajos.” Ante, at 2. Respectfully, the relief the Tribe seeks is far more modest. Everyone agrees the Navajo received enforceable water rights by treaty. Everyone agrees the United States holds some of those water rights in trust on the Tribe’s behalf. And everyone agrees the extent of those rights has never been assessed. Adding those pieces together, the Navajo have a simple ask: They want the United States to identify the water rights it holds for them. And if the United States has misappropriated the Navajo’s water rights, the Tribe asks it to formulate a plan to stop doing so prospectively. Because there is nothing remarkable about any of this, I would affirm the Ninth Circuit’s judgment and allow the Navajo’s case to proceed.

Gorsuch has a point. As we wrote previously, the Navajo Nation's argument is that 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.

(This is a developing story. Here is the article we published in March with more on the parties' briefs and arguments. Please check back later for more on today's decision.)


"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, June 21, 2023

NEW, HERE WE GO AGAIN: Abe Hamadeh Attorneys Nudge Judge In Languishing Election Contest Case (READ filing)

It is hard to believe that Abe Hamadeh's Election Contest still has never made it out of the trial court, nearly 8 months after he narrowly lost the race for Arizona Attorney General and 6 1/2 months after the Election Contest lawsuit was filed.

Now, more than one month after oral arguments on their languishing Motion for a New Trial, Hamadeh's attorneys are nudging Judge Lee Jantzen by asking for a scheduling conference. It is usually an awkward thing to remind a judge about an outstanding issue, but attorney Jen Wright worded it carefully:

"Arizona Rule of Civil Procedure 16(d) provides: “On a party's written request the court must-or on its own the court may-set a Scheduling Conference.” Pursuant to rule 16(d), Plaintiffs therefore request that this Court set a scheduling conference so that pre-trial deadlines may be determined. Plaintiffs understand that this Court has not yet ruled on their motion for a new trial and do not presume what this Court may determine is appropriate and just. Nonetheless, setting deadlines now would allow this case to more rapidly proceed to trial should this Court rule in their favor, shortening the period of uncertainty for the people of Arizona as to who was rightfully elected by the voters as the true attorney general of the state in the November, 2022 general election."

On April 4, Arizona's Law published an article noting that the Motion for New Trial had been "at issue" since early February, as were several other post-trial motions. The following week, the court set an (optional) oral argument for mid-May. It is now 36 days since that hearing.

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

The April 4 article also discusses the 60-day deadline judges have to make a ruling, and the combined lack of clarity in the election contest statutes and court rules that have allowed three election contest cases to still be in various stages of the legal process so long after the election and transition of power. (We have already started work on tightening the timeline for future elections.)

 "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 Supreme Court Clarifies Prohibition On Paying Petition Circulators By the Signature; Or, Did They? (READ Opinion)

UPDATE, 1pm: Jim Barton represented Invest In Education in the original action. He also tells Arizona's Law he would like more attention to the underlying democracy issue: "It is good that the Court would narrowly construe a criminal statute restricting speech.  It would also be good for democracy if they would treat other restrictions on speech, specifically direct democracy, with the same suspicion." (We have added this quote to the article.)

**********

The Arizona Supreme Court today issued a unanimous opinion upholding the constitutionality of a law prohibiting per-signature payments to petition circulators for initiatives and referenda. However, in finding that the 2017 statute is not constitutionally vague or overbroad, they left the door open for more creative incentives.

The criminal case stems from the 2018 Invest In Ed initiative effort. The petition circulating contractor came up with several workarounds to incentivize circulators to collect enough valid signatures. The Supreme Court did not then rule on the constitutionality of the prohibition against per-signature payments because the effort had enough to get on the ballot. (The measure succeeded and the Supreme Court then invalidated it on other grounds.)

The state then criminally charged Petition Partners with approximately 50 misdemeanor counts. The  Court of Appeals found the statute to be unconstitutional on its face.

Today's opinion from Justice Clint Bolick reverses that determination "although we approve much of its reasoning." Several times, the opinion notes that it is clarifying its comments about the statute made in the initial decision on whether or not the initiative would be on the ballot.

Here, overbreadth concerns arise not from the statute itself, but from the erroneous reading of our decision in Molera.  “Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.”  As we clarify here, the statute forbids only per-signature compensation, leaving other productivity-based compensation intact.  Our clarification also means that the statute is not vague on its face, as permissible and prohibited conduct are clearly demarcated.  (I've added the emphasis and eliminated the cites to other cases. This was paragraph 27 of the opinion, below.)

The Superior Court will now need to take evidence and testimony about the specific pay scales and incentives - including getting more spins on a prize wheel when you collected a certain number of valid signatures. 

And, future initiative or referendum efforts will have to expect that their efforts will be challenged. (The Legislature has made it nearly impossible for all-volunteer efforts to reach the ballot.) 

Chandler attorney Tom Ryan tells Arizona's Law the Justices should give more focus to the intent behind one of their setting-the-stage paragraphs: "We begin by recognizing that the right of the people to initiate legislation and constitutional change is central to Arizona’s political heritage.  In turn, gathering signatures to qualify measures for the ballot is core political expression protected by the First Amendment." (citations removed)

"This should be the over-arching thought," said Ryan.

Jim Barton represented Invest In Education in the original action. He also tells Arizona's Law he would like more attention to the underlying democracy issue: "It is good that the Court would narrowly construe a criminal statute restricting speech.  It would also be good for democracy if they would treat other restrictions on speech, specifically direct democracy, with the same suspicion." 

"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, June 9, 2023

BREAKING: Maricopa County Files Emergency Motion To Try To Protect Kari Lake (& Counsel) From Potential Criminal Liability (READ Filings)

Maricopa County filed an Emergency Motion To Seal a voter's ballot affidavit envelope, in order to "protect (Kari Lake) and her counsel from potential criminal liability." Lake filed a Response on Monday and attached both the voter's 2014 envelope and her 2013 voter registration form.

This legal skirmish is taking place in one of the public records lawsuits filed by Lake's attorneys against Maricopa County and the Secretary of State's Office. This one is asking (only) Maricopa County for all ballot affidavit envelopes from the 2022 General Election.

Last month, Maricopa County filed a Motion to Dismiss the special action, noting - among other things - that Arizona statutes (A.R.S. § 16-168(F)) make it a felony to publicly disclose signatures in voters' registration records.

On Monday, Lake filed her Response, and argued that the statute does not apply to the envelopes, partly because the signature is "extracted" in order to be added to the voter registration record. To emphasize their point, she attached what appears to be a Democratic voter's ballot affidavit envelope - with signature - from August 2014, and then what appears to be the same voter's signature on a permanent early voting list request - with signature - from October 2013. Underneath the latter, attorney Brian Blehm noted that  it is "Signature Extracted from Affidavit as it appears in an Addendum to the Voter's Registration Record."

(In an abundance of caution, we have removed the Exhibits from the Response below.)

The County reached out to Lake's attorneys, and the parties agreed to seal the PEVL request form. Judge John Hannah so ordered that today.

However, the parties could not agree on sealing the first Exhibit (envelope), and the County filed their Emergency Motion. 

"Because the primary (perhaps, sole) issue dispute between the parties is whether voters’ signatures on early ballot affidavit envelopes can be publicly disclosed, the Maricopa County Defendants ask this Court to order Exhibit A sealed. Doing so will protect voters’ confidential, personally-identifying information until this Court has the opportunity to consider the law and the parties’ arguments and reach its decision.

Additionally, sealing Exhibit A protects Plaintiff and her counsel from potential criminal liability. The consequence for violating A.R.S. § 16-168(F)’s disclosure prohibitions is a class 6 felony. Thus, if this Court ultimately determines that A.R.S. § 16-168(F) prohibits public disclosure of signatures on early ballot affidavit envelopes, Plaintiff and her counsel could face criminal liability for filing an unredacted copy of Exhibit A.

Since the voter’s signature on Exhibit A has no legal or factual bearing on this case, the Court can guarantee the voter and Plaintiff are not harmed by sealing Exhibit A. The Maricopa County Defendants raised this issue with Lake’s counsel and attempted to reach an agreement to stipulate to the sealing of Exhibit A, but Lake’s counsel would not agree to stipulate."

Lake has not yet responded to the Emergency Motion, and Judge Hannah has yet to rule.

"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 ...