Friday, July 14, 2023

UPDATE: Hamadeh APPEALS Denial Of New Trial In 2022 Election Contest

UPDATE, 8/3, 9:45am: "Hamadeh's Election Contest Moves Ahead... Sort Of; Judge Still Holding It Up"

Abe Hamadeh's 2022 Election Contest has finally made it to the Court of Appeals... sort of. The Superior Court Judge has not yet signed an appealable judgment dismissing his case (and denying the Motion for a New Trial). And now that it is in the intermediate appellate level, Judge Lee Jantzen's ability to sign an order is removed (divested) - at least temporarily.

This may be the 2nd Arizona Election Contest (see our articles on Mark Finchem's "zombie appeal") to get caught in a sort of legal purgatory, although this is not a result of the contesting candidate's legal team. 

The  Mohave County Superior Court Clerk (properly) sent the record to Division 1 (Court of Appeals) after the Notice of Appeal was prematurely* filed. The Appellate Clerk Notice (below) sets out initial deadlines for Hamadeh, including filing his Opening Brief on or before October 2.

Until the appellate *judges* look at the lack of an appealable judgment - either on their own or after a party points it out to them - this case is in limbo.

Chandler attorney (and frequent Arizona's Law contributor) Tom Ryan says that the limbo may have been partly caused by Hamadeh's main concerns.  “It appears the only strategy behind filing the Notice of Appeal before a final order was signed, was not a legal strategy. The strategy appears to have been solely in service of being able to keep Hamadeh’s legal action in the headlines, not obtain final election results.”

* An appeal is not supposed to be filed until there is an appealable order. Hamadeh's team did ask for such an order. The appellate rules do state that a premature Notice of Appeal will be treated as timely filed once there is a proper Order. (Rule 9(c), ARCAP).

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UPDATE, 7/18, 9pm: "Hamadeh APPEALS Denial Of New Trial In 2022 Election Contest"

Abe Hamadeh filed his Notice of Appeal this evening, asking the Court of Appeals to order a new trial in his 2022 Election Contest for the Attorney General race. However, the Notice of Appeal will not actually be treated as "filed" until Judge Lee Jantzen makes his decision official by signing it. 

Usually, this is not an issue, but the Mohave County Superior Court Judge has not given any timeline to either sign yesterday's Minute Entry or decide the pending sanctions requests.

State Rep. Alex Kolodin filed the Notice tonight on behalf of the rest of Hamadeh's eight attorney legal team and their client, and leaves open the possibility that they may ask the Arizona Supreme Court to take the appeal directly (skipping the intermediate Court of Appeals).

The Notice expresses some frustration with Judge Jantzen, noting that he hasn't signed either the December Order dismissing the case after Hamadeh's trial presentation fizzled out nor yesterday's denial of the long-pending new trial motion. It also notes that Jantzen promised on Friday to rule on all pending matters by Monday at noon, but he did not.

"Though the Court’s July 14, 2023 COURT ORDER/NOTICE/RULING explained that its July 17, 2023 COURT ORDER/NOTICE/RULING would address other pending matters, it, without explanation, neither addresses such matters nor contains final judgment language. Therefore, should the trial court subsequently and formally enter final judgment, this appeal should be deemed to be taken from that final judgment as well."

Arizona's Law empathizes. 

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UPDATE, 7/17, 3:45pm: 

Judge Lee Jantzen issued his detailed Order detailing why he denied Hamadeh's Motion for a New Trial this afternoon (about 1 1/2 hours after the noon deadline he had set, which was after the...). 

No shocking revelations in it, except that (1) he did not sign it, and (2) he did not address the significant issue of sanctions against Hamadeh and/or his legal team. 

(1) A judge's signature on an order - whether dismissing the case as he did in December or denying a motion for new trial - is imperative. It is only a signed order that can be APPEALED. Hamadeh's attorneys asked for a signed order in December. They did not get one, they filed for the new trial, and they STILL do not have the ability to appeal the dismissal and subsequent denial. 

The Election Contest statutes required Judge Jantzen to "pronounce judgment" within five days of the hearing. We are now coming up on seven months.

(2) Private contestee defendant Kris Mayes (as opposed to in her official capacity as Attorney General) The Secretary of State's Office joined in that request, and it has been at issue since February 3 - before the New Trial was "at issue". Judge Jantzen has promised to rule on it. He has not.

Now, to what he DID say today: Judge Jantzen writes that the Certified Recount was delayed pending this Election Contest, and that that was "the final decision in this election. The Plaintiff can appeal the decision made in this Court and could have appealed the recount, but a new trial with extend discovery is not available under the road map laid out by the Legislature."

Even if, Jantzen says that Hamadeh could have discovered most of the alleged new evidence before the December trial. And that Hamadeh has no proof that the Pinal County problems were experienced in other counties. 

On that subject, Jantzen also rejected Hamadeh's argument that the Secretary of State's Office violated discovery rules in the Hamadeh case by not disclosing the problems discovered during the Pinal County recount.

CORRECTION: Jantzen did previously grant Petersen and Toma's request to file an amicus, as part of his April 11 Minute Entry setting the oral argument on the Motion for a New Trial. We apologize for the error.


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ORIGINAL ARTICLE, 7/14: BREAKING: Hamadeh's Motion For New Trial In AG Election Contest DENIED

Abe Hamadeh is getting long-awaited trial court closure today, although not the result he was hoping for. Judge Lee Jantzen DENIED the Motion for a New Trial that was first filed in January.

Although it is not yet signed by the judge, Hamadeh's legal team will likely file their (first) appeal next week, after Jantzen rules on the sanctions motions and related matters.

As Arizona's Law has been detailing, the delays in what is supposed to be an expedited Election Contest process lay mostly on the bench. (Hamadeh's team filed several supplements, which may have led the judge to believe that his 60-day clock kept getting reset.)

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


"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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