Thursday, August 31, 2023

SANCTIONS SCOREBOARD UPDATE, MORE SANCTIONS INCOMING? Finchem (& His Attorney) Files Brief Appealing Sanctions In Election Contest... Plus So Much More (READ Brief)

Mark Finchem - and, his ready-to-retire-before-being-disbarred attorney Dan McCauley - filed their Brief appealing the $48,000 in sanctions imposed for his frivolous Election Contest. Not only did they file it (one day) late, but they try to sneak back in several of the issues which *they* had dismissed one month ago.

The, um, not-tight-and-not-proofread (e.g. "Latches" as a subject heading?) 51-page brief flat out concludes by asking the Court of Appeals to reverse both the sanctions AND the dismissal ("Contestant prays that the trial court be REVERSED and that based on the above this Court reverse the lower court’s Ruling granting sanctions, as under any reasonable analysis, the Contest was clearly filed in good faith and certainly not frivolous.")

(Contrast that with this July 30 statement: "After a series of decisions in the Arizona appellate courts related to the 2022 statewide election, specifically Lake v. Hobbs and Hamadeh v. Hayes, whose allegations more or less mirror Mr. Finchem’s, Appellant has decided to forego the appeal of his election contest dismissal.")

The rest of Finchem's Conclusion is worth reading, too. If only for an example of how not to overturn the sanctions Order... and preventing further sanctions:

Mark Finchem received substantially more than 1,000,000 votes in the 2022 election for Secretary of State. From the feedback he gets from his constituents the vast majority believe he won and the elction should be contested. An evidentiary hearing was seen by Mr. Finchem to at least playcate, if not satisfy, his constituents’ concerns. The judge’s ruling in this case did not mollify any of his constiuents angst regarding the election and only stirred the pot in which claims of election fraud are being brewed. The judge had a duty use judicial restraint and desist from a hostile and angry tone in her Rulings.

The lower court should have been reasonable. Mr. McCauley has been an attorney has been a lawyer for more than 30 years, he has never even been accused of making inappropriate statements or claims to a tribunal. Moreover, the judge was informed by Mr. Fontes’ counsel that his legal fees were guaranteed by a third party. So, Fontes suffered no loss. Now, with the sanctions paid has he received a $40,000 windfall or is his attorney just keeping the money? The public has a right to know where the money went and who profited on this case.

This article was reported by AZ Law founder Paul Weich. 

"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, August 25, 2023

THIS MORNING: AZ Elections Director On Witness Stand Rebutting Co-Conspirator's Claims Of 2020 Election Fraud (ARIZONA'S LAW SHORTS)

 8:30am: "THIS MORNING: AZ Elections Director On Witness Stand Rebutting Co-Conspirator's Claims Of 2020 Election Fraud"

Bo Dul, Arizona State Elections Director in 2020, will take the (virtual) witness stand this morning in Jan. 6 Co-Conspirator John Eastman's California Bar disciplinary proceeding. She will be rebutting Eastman's unfounded claims that fraud in Arizona justified his activities in helping mastermind the "fake electors" and Jan. 6 plans.

Dul - who is now General Counsel for Governor Katie Hobbs - tells Arizona's Law she will be sworn in at approximately 9:30. Per discussion in court yesterday, her direct examination by the California Bar's attorney should last about one hour, followed by another hour of cross-examination by Eastman's attorney (and re-direct).

Dul's testimony can be viewed here.

Eastman unsuccessfully tried to get his disciplinary proceeding put of until after his trial in Georgia. He was indicted this month, along with former President Donald Trump and 17 others. Yesterday, his attorney pointed out to the judge that Eastman ally Kenneth Chesebro had asked for a speedy trial, hinting that putting off the disciplinary proceeding would not necessarily be for an indefinite period. The judge was not impressed and pressed forward with the ongoing trial.

Eastman (eventually) plans to call Kari Lake attorney Kurt Olsen as a defense witness. The judge denied his plans to call Arizona's Mark Finchem and Wendy Rogers to support his Arizona fraud claims, determining that they had not been properly/timely disclosed.

This article was reported by AZ Law founder Paul Weich. 

"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, August 23, 2023

BREAKING, SANCTIONS SCOREBOARD UPDATE... LET'S START THE LABOR DAY WEEKEND LAWYERING: Hamadeh Responds To Sanctions Filing, Fontes Replies One Hour Later

UPDATE, 9/1, 5pm: "SANCTIONS SCOREBOARD UPDATE: Mayes Asks For $42,000 In Sanctions From Hamadeh"

This afternoon's Application from Kris Mayes' legal team submitting its bill means that Hamadeh's sanctions in its Special Action Petition will be a $55,000 mistake.

Mayes (in her capacity as the Contestee - not as the Attorney General) is represented by Perkins Coie. They filed their $42,277.96 bill today, detailing the work they did in uncovering and detailing the Hamadeh misrepresentation that led the Supreme Court Justices to impose the sanctions.

Hamadeh can object to the amount requested, and the Supreme Court will have the final say. The Secretary of State's Office's request is just shy of $13,000 (after Hamadeh discovered a $184 entry that dealt with the other appeal).

Filing portals remain open, but we expect the attorneys to now enjoy the Labor Day weekend.

UPDATE, 9/1 4pm: "LET'S START THE LABOR DAY WEEKEND LAWYERING: Hamadeh Responds To Sanctions Filing, Fontes Replies One Hour Later"

Hamadeh's legal team filed a short Objection this afternoon, asking the Supreme Court to reconsider awarding sanctions to the Secretary of State's Office for responding to the denied Special Action Petition because, traditionally, "nominal" parties like the AZSOS do not make substantive filings to be reimbursed for.

One hour later, attorneys for the Secretary of State's Office filed a two-page Reply, noting that the Special Action Petition had specifically claimed that the Office's actions (i.e. allegedly hiding details of the recount) were part of the reason to grant the Petition and overturn the dismissal of Hamadeh's Election Contest.

UPDATE, 8/31: "Hamadeh's Supreme Court Sanctions Should Be $13,105; PLUS Court of Appeals (Temporarily) DISMISSES (Separate) Appeal"

(UPDATE, 4pm: Mohave County Superior Court returned our message. "Forthwith" might be before 5pm today.)

Last week, the Arizona Supreme Court determined that Hamadeh (and/or his legal team) would have to pay sanctions for a relevant misrepresentation made to the Court in filing their Special Action. The Secretary of State's Attorneys are asking that that sanction be $13,105 (representing their legal fees in defending against it).

The bill for the two weeks' worth of work has been submitted to the Justices and Hamadeh will have a chance to contest it.

In addition, the Court of Appeals yesterday DISMISSED Hamadeh's initial appeal of the contest. The judges granted the defendants' request, agreeing that the appeal was premature until Superior Court Judge Lee Jantzen signs his December dismissal of the Election Contest. "Nothing precludes appellant from filing a timely notice of appeal after a final judgment is entered," concluded the Order.

The rebuffs from both the Court of Appeals and the Supreme Court means Hamadeh does not yet have a substantive appeal. And, even though everyone - including the Chief Justice of the Arizona Supreme Court - has tried to prompt Jantzen into wrapping up his part of the case, the contest of the ultra-close Attorney General election from November 2022 is not yet appealable. (Arizona's Law left a(n unreturned) message with Judge Jantzen's courtroom today to double-check.)

*****

Original article, 8/23: "BREAKING, SANCTIONS SCOREBOARD UPDATE: AZ Supreme Court REFUSES To Hear Hamadeh  Special Action, Socks Them With Sanctions  Also orders trial judge to immediately SIGN appealable judgment"

The Arizona Supreme Court unanimously sanctioned Abe Hamadeh and/or his legal team for misrepresenting the legal situation in their Special Action Petition directly with the highest court, in an effort to free a stuck court process.

However, the Hamadeh team did succeed in getting it unstuck, as the Court ordered Mohave County Superior Court Judge Lee Jantzen to sign and enter an appealable judgment "forthwith."

As Arizona's Law had discussed when the Special Action was filed, there are limited bases for filing a Special Action with the Supreme Court, and this did not seem to comply with those rules. The Justices pointed to that rule and found that they could not consider the Petition because there was never a specific request for an appealable judgment from the trial court judge.

The Justices summarily denied Hamadeh's request for attorneys' fees, but went into detail as to why Contestee Kris Mayes - who narrowly defeated Hamadeh in the race for Arizona Attorney General - and the Secretary of State's Office were entitled to their fees in knocking down the duplicative Special Action.

"Because Petitioners were not only aware that they needed a final judgment to seek appellate relief but also misrepresented to this Court that they had sought such relief when they had not done so, and because this representation was the underlying premise upon which this petition was brought, and because all of Petitioners’ claims for trial court error can be presented on appeal, we find that the special action unnecessarily expanded the proceeding and compelled Respondents to incur the unnecessary expense of filing their court-ordered responses."

The Court also urged everyone to dial it down as they move forward: " As a final matter, the Court is mindful of the difficulties presented in this extraordinarily close election. Notwithstanding these difficulties, the Court advises both sides to focus on the important legal and factual issues presented here and refrain from disparaging their opponents."

Hamadeh's appeal should now move forward more normally. Although today's order notes that Jantzen had issued *an* order within 60 days of the final filings from the parties, the trial court had been holding back on a final order since early February. The parties did file new documents, but part of the reason for that was to nudge the judge to sign an order that could be appealed.

Given today's Supreme Court Order, we *should* expect Judge Jantzen to sign something before the end of the week. Hamadeh's previously-filed Notice of Appeal would then become effective as of that date, and the Court of Appeals process can continue. Currently, the Opening Brief is due October 2. However, one or more of the parties could attempt to expedite the appeal. (If Hamadeh filed his Brief tomorrow, it would speed the case up by six weeks, for example.)

This article was reported by AZ Law founder Paul Weich. 

"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, August 22, 2023

UPDATE: Major Arizona Law Firm Placed Into Receivership TODAY, Closing Doors Next Week

The major Arizona law firm of Jennings Strouss & Salmon was placed into a receivership today, and announced that its (few remaining) doors will close next Thursday (Aug. 31).

Judge Christopher Coury signed the receivership order today, after it was agreed to by the firm, PNC Bank and the landlord (Red Cityscape). The receiver will be Jeremiah Foster at Resolute Commercial Services.

In this sort of situation (where the company is closing its doors), a receivership is much like a bankruptcy with a trustee in place. The Receiver will be responsible for collecting the monies owed by JSS's many clients, as well as liquidating other assets. 

PNC Bank began the receivership proceeding 10 days ago, at a point where JSS had taken approximately $3.4M of a $4M line of credit executed less than three months ago.

Scott Cohen, representing PNC, told the court that JSS has not given any indication of how much money is currently owed to JSS (now, the Receiver). "We are a bit in the dark about the amount of the receivables" and they are "getting stale."

Many (or, most) of the attorneys have already moved to new law firms, bringing clients with them. The Order signed today warns former JSS attorneys to not collect any monies that should go to their old firm, or risk "civil or criminal contempt". 

That may not always be easy to figure out in ongoing matters, contingency fee arrangements, etc. Clients would also be well-advised to make sure they pay the correct entity - the Receiver's address and phone number are listed in the Order, below.

The firm put a message up on its website this afternoon, advising clients August 31 would be its last day of operations. "For more than 80 years, Jennings, Strouss & Salmon proudly provided legal services as one of the premier law firms in the State of Arizona. Regrettably those decades of service come to an end on August 31, 2023 when the firm ceases active operations. For those of you who have not already been in touch with your attorney about the transition of their practice to another firm, please contact them at their “jsslaw.com” email address and you will receive information on how to reach them at their new firm. The entire team at Jennings Strouss thanks the Community for its tremendous support over the years."

Beyond the closing of the firm itself, there is still an unexplored story of how this happened, and how the firm drew down $3.4M from its (new) line of credit in less than three months. (Arizona's Law is reaching out to partners and others, and is interested in speaking with persons who have knowledge of the situation.)

Also at today's hearing, a disagreement between PNC and Cityscape came up. PNC would like the Receiver to turn over all collected monies to the bank, but the landlord argues that its statutory lien should be satisfied first. Judge Coury decided to have the Receiver hold any assets until September 8 to give them a chance to reach agreement, and set an October status conference.

JSS's monthly rent for its Phoenix offices was approximately $200,000/month (or, $2.4M/year). JSS had offices in Tucson, Washington, and Austin (and elsewhere).

(CORRECTION: I had multiple "Scotts" on my brain earlier. Scott Cohen is representing PNC, not Scott Palumbo.)



This article was reported by AZ Law founder Paul Weich. 

"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, August 21, 2023

LIKELY LITIGATION, ARIZONA PERSPECTIVE: Arizona's Presidential Preference (Primary) Election and January 6 (NEWS ANALYSIS)

(Arizona's Law is an independent, non-partisan legal news blog. When we engage in analysis or commentary, we attempt to label it as such. This article may be classified as "news analysis" because it attempts to provide interpretations that add to a reader's understanding of a subject.)

A new election litigation frontier is a near certainty as a result of events over the weekend. Like last week’s Hints from the Courts news analysis, this article aims to alert readers to intriguing developments and analyze the Arizona angles.

Since the January 6 insurrection, there has been discussion of Section 3 of the 14th Amendment to the U.S. Constitution, called the Disqualification Clause. On Saturday morning, The Atlantic released a bombshell article co-authored by retired Judge Michael Luttig and Professor Laurence Tribe, two of the most highly regarded constitutional scholars of our time. One is a conservative, the other a liberal. Citing an upcoming law review article (available in preprint) by two other constitutional scholars, William Baude and Michael Stokes, both members of the Federalist Society, the Luttig/Tribe article is entitled:

The Constitution Prohibits Trump From Ever Being President Again: The only question is whether American citizens today can uphold that commitment.

This article is not about the intricacies of their constitutional analysis. Rather, we address the practicality of the process of whether the former President might be kept off of - or, removed from - ballots in the elaborate process of working towards November 2024. We will focus on Arizona while noting that Arizona is only one of the 50 states that will be involved in this.

Luttig and Tribe set out the process in general terms:

“As a practical matter, the processes of adversary hearing and appeal will be invoked almost immediately upon the execution and enforcement of Section 3 by a responsible election officer—or, for that matter, upon the failure to enforce Section 3 as required. When a secretary of state or other state official charged with the responsibility of approving the placement of a candidate’s name on an official ballot either disqualifies Trump from appearing on a ballot or declares him eligible, that determination will assuredly be challenged in court by someone with the standing to do so, whether another candidate or an eligible voter in the relevant jurisdiction. Given the urgent importance of the question, such a case will inevitably land before the Supreme Court, where it will in turn test the judiciary’s ability to disentangle constitutional interpretation from political temptation. (Additionally, with or without court action, the second sentence of Section 3 contains a protection against abuse of this extraordinary power by these elections officers: Congress’s ability to remove an egregious disqualification by a supermajority of each House.)”

Importantly, the Luttig/Tribe article contends that the Disqualification Clause does not require any conviction of Trump. It stands on its own.

ARIZONA’S SCHEDULE: Arizona law provides for a Presidential Preference Election; its deadlines are coming very soon:

11-10-23  A.R.S. 16-242.B Begin candidate registration for AZ PPE

12-11-23  Deadline for candidate filing for Az PPE

12-14-23  Deadline for SOS to certify candidates for Az PPE

12-20-23  Mail notice of PPE to active early voters

2-3-24     Mail early UOCAVA ballots (Election starts. This means ballot printing deadlines are a few weeks earlier.)

2-21-24    Begin early voting for PPE

3-19-24    AZ PPE (currently scheduled)

The statutes and our Arizona Election Procedures Manual ("EPM". From 2019, although 2023 will likely be approved and take effect at some point during this process) provide that the PPE is governed as if it is a primary election unless a specific term of law for the PPE conflicts. (E.g., there are no write ins allowed in the PPE, only a person registered in a party can vote in that party’s PPE – meaning no independents and the like.) 

The EPM makes clear, as does the U.S. Constitution, that only candidates who meet the qualifications required by the Constitution can be on the ballot in the PPE. For example, if a 25 year old filed to be on the ballot in the PPE, would there be a process to remove him or her? And, what would that process be?

Therefore, if Section 3 of the 14th Amendment disqualifies anyone from being President, there would be no ballot access for that person. (The Disqualification Clause applies to anyone running for state or local offices if that person has sworn the constitutional oath at some point. This discussion, therefore, applies to any local J6 insurrectionists meeting the 14th Amendment standard; but keep reading for the recent Arizona Supreme Court decision.)

That means the processes to challenge a candidate’s qualifications are in play.

ARIZONA’S HISTORY WITH SUCH CHALLENGES: By a Decision Order issued on May 9, 2022, in the Hansen case, the Arizona Supreme Court rejected consideration of a 14th Amendment, Section 3, challenge to the candidacies of three people (Paul Gosar and Andy Biggs at the Congressional level, and Mark Finchem running for Secretary of State) involved in January 6 who filed to run for office in Arizona. The court cited several grounds, including the lack of a federal statute concerning Section 3’s implementation. It is likely that the Supreme Court would stick with that reasoning on any 2024 14th Amendment qualifications challenges absent case law development elsewhere. 

(In addition to our coverage of the Arizona Supreme Court's Decision Order, we published the parties' Briefs on the issues.)

Hansen stated that “Congress has not created a civil practice right of action to enforce the Disqualification Clause.” But, the Court did not deal with Section 1983, which the 9th Circuit’s Long case describes: “Title 42 U.S.C. § 1983 provides a cause of action for the ‘deprivation of any rights, privileges, or immunities secured by the Constitution and laws’ of the United States. To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law.” 

Many will argue that the lack of a specific statute concerning the Disqualification Clause cannot render it moot. That would be like arguing that if Section 1983 had not been passed, the bedrock principles of  due process and equal protection would be moot. (Such esoteric notions are generally the province of law reviews; however, in the 2024 cycle they will migrate to the front pages.)

As a result of the likelihood of Disqualification Clause challenges occurring throughout the country, we will outline the general framework of the process issues.

WHO CAN CHALLENGE TRUMP BEING ON THE PPE BALLOT? First, this is not only an Arizona issue. Based on the Luttig/Tribe and Baude/Stokes articles, there will be challenges based on the Disqualification Clause in many states - certainly all the anticipated battle ground states. (Some of you may have noted Maricopa County Recorder Stephen Richer publicized the Baude/Stokes article. Baude is a professor at the law school Richer graduated from)

In Arizona, for decades, as set out in the fairly recent (2010) Pacion/Bowie Arizona Supreme Court case, “election contests ‘are purely statutory and dependent upon statutory provisions for their conduct.’"  Pacion/Bowie involved the validity of signatures.

The concept of who has standing to sue is certain to come up. As Luttig/Tribe noted, the election officer can decline to accept Trump’s filing for the PPE; Trump might then sue. The election officer (in Arizona, that is Secretary of State Adrian Fontes) may ask for either a legal opinion and/or an investigation in anticipation of this situation. A legislator can also ask the Attorney General for an opinion.

If the election officer accepts Trump’s filing, a person can challenge Trump’s inclusion on the ballot in a lawsuit based on the Disqualification Clause. Certainly, another candidate for the Republican nomination would have standing. Any Republican planning to vote might also have standing, but it is less sure. Arizona courts universally put it this way, as set out by the Arizona Supreme Court in Bennett v. Napolitano:

This court has, as a matter of sound judicial policy, required persons seeking redress in the courts first to establish standing, especially in actions in which constitutional relief is sought against the government. In Sears, we denied standing to citizens seeking relief against the governor because they failed to plead and prove palpable injury personal to themselves. A contrary approach would inevitably open the door to multiple actions asserting all manner of claims against the government. (citations omitted)

(Bennett went on to hold that individual legislators cannot presume to represent the opinion or interests of the entire legislature. In this PPE situation, Republican legislators can persuasively say they intend to vote in the PPE, therefore, claiming that status.)

(Another possible sequence of events is discussed below, in the "Go Easy..." section.)


WHEN TO SUE: Qualifications can be challenged at any time a putative candidate takes a step involving the government making a decision. Arguably, that is when a candidate presents the initial paperwork to the SOS. It will certainly be ripe when the person makes one of the types of filings with the SOS claiming to have fulfilled the requirements to be on the PPE ballot. The SOS must certify who will appear on the PPE ballot; that is akin to approving the canvass, a lawsuit is certainly ripe at that point. However, due to some uncertainty as to when the short time to file a lawsuit commences and the accelerated nature of the process - trial court, appeals, etc., anticipate lawsuits will be filed at the earliest moment possible. That will be good lawyering and prudent. Unless Trump does not file for the Arizona PPE, there is almost no additional information needed to prepare the lawsuit and defenses right now.

WHERE TO SUE: There is concurrent jurisdiction in Arizona and federal courts, meaning a case could be filed in either. The Arizona statute allowing a candidate’s qualifications to be challenged speaks to any qualification required by law - that would include the qualifications clause of the 14th Amendment, but due to Hansen, most likely Federal Court under federal question jurisdiction. 

It is certain that good lawyers for both sides will be well-prepared in advance. The national campaigns for president and other interest groups likely already have nationally-centered legal teams to handle the multitude of these cases that will be filed. Local election officials, the same. 

GO EASY ON ELECTION OFFICIALS: The Secretary of State's Office is primarily a neutral filing office. In this case, it accepts candidates' filings and instructs the County Recorders to place names "A" through "Z" on the PPE ballot. 

But this is a perfect storm scenario for Arizona Secretary of State Adrian Fontes. Hansen was a Decision Order. It is not binding precedent, but is certainly meaningful. Does Fontes reject Trump’s application based on the 14th Amendment? He will be sued and accused of all manner of things? Accept it, and be sued by "Never Trumpers" and accused of all manner of things? Seek a legal opinion from his general counsel or the Arizona Attorney General? He will still get yelled at and sued. 

File a declaratory judgment action to have it decided by a judge in advance - allowed when an issue is certain, and it is possible to resolve it before adverse consequences occur? That is not likely unless the Secretary of State's Office gets competing demands for conflicting actions threatening mandamus actions. (That is a special kind of proceeding to force a government official to perform a non-discretionary duty). 

You might remember that former Secretary of State Ken Bennett (now, State Senator Bennett)  investigated whether Barack Obama was qualified for the 2012 PPE ballot. Bennett conducted that investigation only in response to demands from Republican "birthers" stemming from former Maricopa County Sheriff Joe Arpaio's activities. (And, ironically, Trump's activities and statements.)

Fontes and his staff are in a no-win situation. It can be argued that Fontes or other election officials in other states would be doing Trump a favor by rejecting his application to participate in the PPE as it would allow him to (1) be yet another of Trump's punching bags, and (2) sue and speed it along. 

He will be damned if he does, and damned if he does not. (So, it is very possible he errs on the side of maintaining the neutral filing repository purpose of the office.)

TIMING: IMPORTANTLY, AS NOTED ABOVE, THE LUTTIG/ARTICLE CONTENDS THAT THE DISQUALIFICATION CLAUSE DOES NOT REQUIRE ANY CONVICTION (of Trump). RATHER, IT STANDS ON ITS OWN. The federal or state trial court will certainly accelerate all aspects of a case like this. It appears to be a pure legal issue, with the important exception of whether or not January 6 was an “insurrection” in 14th Amendment terms and if any other actions of Trump might meet that definition - the Luttig/Tribe article describes at least one other act of Trump which they feel was an “insurrection.” As always, creative lawyers may attempt to raise other issues. 

If in state court for appeal, Rule 10 setting out procedures for accelerated consideration will certainly be used. (For reasons that are unclear, none of the losers in statewide election contests from 2022 have invoked Rule 10). 

If it is a federal court appeal to the 9th Circuit, there are accelerated procedures for election cases. (In 2004, an Arizona state court entered a judgment striking Ralph Nader from the ballot for president; no appeal was taken. Nader then filed in U.S. District Court in Phoenix, promptly lost again, appealed to the 9th Circuit which ruled against Nader again in a published opinion, all within weeks. Nader was not on the ballot for president in Arizona in 2004 as a result.)

To sum it up concerning procedures: There almost certainly will be litigation concerning Trump being allowed on the PPE ballot in many other states. In Arizona, there probably will, though Hansen makes it a bit less likely. Due to overlapping deadlines to file such actions in the many states with approaching presidential nominating processes, many will probably be litigated at the same time until one makes it to the U.S. Supreme Court and is resolved. There is nothing Arizona or any election officials can do to head this off. Trump can head it off by dropping out - highly unlikely. 

CONCLUSIONPrior to the publication of The Atlantic article by Judge Luttig and Prof. Tribe, we had followed the disqualification clause discussion with some interest as a fascinating topic. With that article, litigation concerning it became a certainty. Litigation that most assuredly will end up in the United States Supreme Court (quickly). An examination of Arizona’s PPE schedule, similarly approaching in many states, demonstrates that such litigation will come soon.

Therefore, buckle up. It may be a wild ride. But, this should not be approached as a partisan political brawl - we have had enough of those. Rather, this will be a fascinating fight over a previously uninterpreted clause in the United States Constitution. Hopefully, all sides will have excellent lawyers who are acting professionally, and with civility. 

It will likely take place in several judicial systems, and they will hopefully all get the cases decided in a timely manner. True, for some watching, it will have high stakes due to their partisan bents. For all, it should be interesting to watch such legal battles being handled as they should be. 

Yelling. Screaming. Accusing. Name calling. Will not change the results. Maybe, the roar will only be dull. We can only hope. 

(COMING SOON: As noted last week, we plan to continue this type of news analysis later this month, on the intersection of attorneys' ethical requirements, sanctions and the First Amendment. We have covered the "Sanctions Scoreboard” and would like to add some context and analysis.)

"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 and published 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, August 18, 2023

HINTS FROM THE COURTS: The Arizona Litigation Landscape For the Abortion Rights Initiative and Other Citizens’ Petitions (NEWS ANALYSIS)

(Arizona's Law is an independent, non-partisan legal and political news blog. When we engage in analysis or commentary, we attempt to label it as such. This article may be classified as "news analysis" because it attempts to "provide interpretations that add to a reader's understanding of a subject.")

Arizona’s Law generally reports on events that have happened or are about to happen. Several recent Arizona appellate opinions point to very interesting developments in the area of initiative and referendum law. Some intriguing statements recently may impact the sure-to-come litigation challenges to initiatives and referenda seeking to be on the 2024 ballot - such as the announced abortion initiative - not to mention the ongoing litigation trying to undo the 70%+ of the voter approval in 2022 of dark money disclosure initiative.

(COMING SOON: We plan to continue this type of news analysis later this month, on the intersection of attorneys' ethical requirements, sanctions and the First Amendment. We have covered the "Sanctions Scoreboard", and would like to add some context and analysis.)

The Supreme Court decided Voice of Surprise v. Hall (below) on Monday. The case involved a filed referendum petition which omitted the legislative act being referred from the petition when it filed the application for the referendum number. However, the measure was attached to all signed petitions. The issue was whether the referendum petitions should be tossed out as a result of the error at the time of application. 

The court held that such a remedy was not authorized by statute; the case was remanded to consider a counterclaim filed by the proponents. (Tim LaSota, attorney for the referendum proponents, tells Arizona’s Law that the ordinance is still on hold pending resolution.)

The intriguing discussion in the case concerns the battle between “strict” construction of referendum statutes versus “substantial” compliance. For decades, the court-developed standard was “substantial” compliance. And then, in 1989, the legislature enacted a session law mandating that standard. In 2015, the legislature enacted a session law requiring the “strict” compliance standard. What is the standard? It makes a large difference.

The incredible turnout in this month’s Ohio referendum - that was universally seen to be a ploy to make an Ohio November 2023 abortion initiative harder to pass - illustrates both the pull issues have on voter energy and the ferocity of the litigation surrounding the efforts. Days after the voters of Ohio defeated the referendum, the Ohio Supreme Court held that the November initiative could remain on the November 2023 ballot.

On the day of the Ohio vote, a coalition of several groups filed an Arizona initiative to protect a person’s right to reproductive choice. Expect fierce litigation at every step of the process. Last year, over 70% of Arizona voters approved an initiative lifting the veil on dark money. In addition to the litigation before the election, three lawsuits have been filed to overturn that vote; the first one ruled on was dismissed, affirming the passage of the initiative. (There is now an amended complaint).

BACKGROUND: Before getting into what our courts have recently said, let’s recall the role of initiative, referendum and recall in Arizona history. The Supreme Court set out that history in Bennett v. Napolitano in 2003. The Arizona Constitutional Convention of 1910 added all three to the draft constitution that would go into effect if Arizona became a state. President Howard Taft – who later became the Chief Justice for the U.S. Supreme Court(!) - detested judiciary recall. He vetoed the resolution for Arizona’s statehood. In August 1911, Congress passed another resolution admitting Arizona to the Union only if the recall of judges was removed from its constitution. In January 1912, Arizona voters removed the recall of judges from the constitution. Arizona became a state on February 14, 1912, when Pres. Taft signed the resolution making Arizona the 48th state.

Arizonans promptly voted to amend the new constitution to reinsert the recall of judges at the November 1912 election. For about 80 years, the will of the people as expressed in their votes on initiatives and referenda was mostly given deference by the elected legislators. That ended in the 1990s

Several medical marijuana initiatives were passed and then gutted by the legislature and the governor. The proponents of those initiatives brought the substantive issue back with yet another initiative and paired it with an initiative called the Voter Protection Act which was passed by the voters in 1998. It protected initiatives and referenda passed by the voters from being amended without a 3/4s vote of the Legislature and allowed only amendments that furthered the purpose of the passed measures.

The Constitution allows the passage of statutes governing the details of implementing initiative and referendum. Many legislators have bristled at the voters’ use of their powers to legislate by initiative or referendum, especially since the Voter Protection Act made it so difficult to amend such statutes. Therefore, under the general notion of protecting the integrity of the initiative and referendum processes, many highly technical requirements have been enacted. 

Such requirements have resulted in abundant litigation over technicalities having nothing to do with the core issues of whether an initiative or referendum has sufficient signatures, is timely, proper and the like. Issues such as circulator qualifications, paid circulators, font size, adequacy of the 100-word summary, etc. have predominated.

NOW: When does a regulation of the process become an infringement on the cherished right to initiative and referendum?

In Voice of Surprise, the court virtually invited such challenges by stating:

 “Notably, VOS does not argue that requiring strict compliance with § 19-111(A)’s mandate to include the text of a challenged ordinance within the application as well as within the petition sheets unreasonably hindered or restricted VOS’s constitutional right of referendum, making that provision unconstitutional in its application.  We therefore do not address the constitutionality of applying § 19-111(A) in these circumstances to disqualify the referendum effort.” (citations omitted)

In footnote 1, the Court points out that “Section 19-101.01 also requires courts to strictly apply constitutional requirements for the form and manner of referenda.  This conflicts with Whitman and a host of other cases. (cites cases).”

This week, the Supreme Court, in a mental health-related case, also defined “strict” and “substantial” in the election case context:

 “strict compliance” is a term of art used in election law cases.  In that context it connotes an intolerance for technical errors, and contrasts with “substantial compliance”—a standard that instead tolerates errors if the purpose of the relevant statutory requirements was nevertheless fulfilled.”

In June, in the important AZ Petition Partners v Thompson case, the Supreme Court addressed a recent statute that barred paying petition circulators by signature. In that case, the circulators were paid by the hour but were eligible for productivity bonuses. The State filed 50 various criminal charges for violating the statute due to the circulators being paid by the hour with certain incentive programs. The court analyzed the statute by applying strict scrutiny pursuant to the First Amendment. The court remanded the case for development of an evidentiary record, noting that “the statute forbids only per-signature compensation, leaving other productivity-based compensation intact.” It’s a very practical opinion reconciling the need to have integrity of circulators with the core nature of signature gathering as speech.

CONCLUSION: This Supreme Court trend may have begun last September when the Justices explained their reasons for not removing the Stop Dark Money initiative (officially known as "Voters' Right to Know Act") from the ballot. The Legislature had required paid circulators to file a new affidavit for each initiative they collected signatures for. However, the online portal did not allow them to do so. Opponents tried to disqualify their signatures for disregarding the statute. The Justices were not having it:

"Challengers assert we should not excuse the Committee’s noncompliance with § 19-118(B)(5) because it could have submitted new affidavits by mail or email, even if the Secretary would have rejected them, or sought a court order forcing acceptance. This is a bar too high. The legislature required the Committee to follow the Secretary’s procedures, see § 19-118(A), and the Committee did so. Disqualifying signatures for adhering to the Secretary’s registration requirements would be tantamount to blessing a trap laid for unwary sponsoring committees." (Emphasis added)

"A bar too high." This recent series of opinions from the Arizona Supreme Court shows that the opponents of initiatives/referenda/recalls may have finally found their legislative limit for tightening the screws on those circulating petitions to reach the ballot. 

BUT, A CAVEAT: Of course - as shown by the measures referred to the ballot by the Arizona Legislature in 2022 and for next year - the voters can raise the bar on themselves. Ohioans refused to do that this month, and it is unlikely that Arizonans would pass a similar measure. However, if we did, it would not be too high a bar for the courts.


DISCLOSURE: Publisher Paul Weich was heavily involved in the Voters' Right To Know (Stop Dark Money) initiative effort, as well as many other initiatives and referenda. (In fact, he twice hosted live-streamed telethons to discuss the measures and interview proponents.

"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.

UPDATE: Arizona Supreme Court SWIFTLY DISMISSES Heath/Crosby/Mast Special Action/Election De-Certification (READ Order)

UPDATE, 8/25: "UPDATE: Arizona Supreme Court SWIFTLY DISMISSES Heath/Crosby/Mast  Special Action/Election De-Certification (READ Order)"

That was quick. The Arizona Supreme Court swiftly dismissed attorney Ryan Heath's Special Action Petition attempting to decertify Arizona's 2022 election results.

Heath, on behalf of Cochise County Supervisor Tom Crosby and one other, filed the action directly with the Supreme Court last Friday. The four (of seven) Justices who considered the matter did not need to ask for the defendants to file a response to decide to deny the Petition for at least three reasons:

1) It was an improper "collateral appeal" of Judge Peter Thompson's decision in Kari Lake's Election Contest that the signature verification statutes were complied with in 2022;

2) The requested mandamus order (to de-certify or re-do the election) is not appropriate for a Special Action when there are disputed facts; and 

3) Heath did not give a compelling reason why he had to file directly with the Supreme Court, as required.

Original article, 8/18: "NEW: De-certify the 2022 Arizona Election, New Special Action Petition Asks Arizona Supreme Court (READ Petition)"

A new Special Action Petition filed yesterday asks the Arizona Supreme Court to "de-certify" the 2022 election results because Maricopa County did not properly verify signatures on early ballots.

Attorney Ryan Heath - who attempted to insert himself into previous Election Contest appeals - claims that the state's largest county violated the law when it used multiple signatures from the voter's records to validate the signature on 2022's ballot envelope affidavit, thereby allowing the possibility that results improperly weighted the (Democratic-leaning) early vote.

Similar arguments have already failed at the trial court level in Kari Lake's Election Contest, and is currently in the appellate process. And, this Special Action Petition is separate from the possible class action lawsuit that Heath has been advertising.

The Supreme Court has discretion on whether or not to accept this Petition. If the Justices decide that it should have been filed either in Superior Court of the Court of Appeals, they "will on that ground" simply dismiss it.

Chandler attorney Tom Ryan also pointed out that "This is an election contest under Title 16. I don’t care that it is now styled as a “special action.” It should be deader than a doornail dead with the Az Supreme Court as beyond the statutory time limits for filing election contests. No matter how much one tries to polish a cow pie, you’re never gonna make it shine. Something young Mr. Heath has not yet learned."

(Later,) asked for his response to the criticism that the Petition is a thinly-disguised Election Contest, Heath told Arizona's Law that "I'd say that the crux of the argument is constitutional in nature, it's supported by caselaw, and that the evidence supporting this claim was withheld by Maricopa County until recently."

(Correction: The Special Action Petition was filed yesterday, not today.)

This article was reported by AZ Law founder Paul Weich. 

"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, August 17, 2023

NEW, AZ Supreme Court: Doctors Can't Use "Boilerplate" To Justify Court-Ordered Mental Health Treatment of 70-Year Old Woman, But Order In This Tucson Case UPHELD (READ Opinion)

Physicians must do a thorough job explaining why a court should order compelled mental health treatment, the Arizona Supreme Court decided yesterday. However, even though they did not "completely comply" with the statutory requirements, the court-ordered treatment of a 70-year old Tucson woman was valid because the issue had not been raised at the expedited hearing.

The woman went to the hospital for gastrointestinal problems, but was kept there because she weighed only 83 pounds and was diagnosed with "delusional disorder, malnutrition, and cachexia." (Cachexia is "general weight loss and wasting occurring in the course of a chronic disease or emotional disturbance.”)

She was not discharged, instead undergoing a court-ordered evaluation at Banner UMC South. The two doctors signed the required affidavit - which was only boilerplate - and their patient notes were stapled to it. The unidentified woman believed the doctors were not going to help her and wanted to be able to return home to her business. After a hearing, the judge ordered treatment, which included anti-psychotics.

By the time the Court of Appeals reversed the order because the reports did not meet the statutory requirements, the order had expired and the woman was released.

In a unanimous opinion written by Chief Justice Robert Brutinel, the Supreme Court yesterday found:

1) Although this case was moot, it should be considered because it would likely arise again.

2) That the doctors' affidavits did not comply with the statutes, noting that they had not even sworn that the stapled notes were part of their affidavit. (Best practice tip: cut and paste the notes into the affidavit, or at least say they are incorporated by reference.)

Interestingly, the Court of Appeals had analogized the requirements to the "strict compliance" the Legislature has imposed on citizens' initiative and referenda petitions. The Supreme Court declined to "import" that term, instead "we now clarify that the requirement is simply complete compliance with each statute’s requirements, even when that compliance is technically different from what the statute requires." (emphasis added)

3) Since the objection to the non-compliant evaluations was late, the Justices reviewed it to see if allowing then had caused "fundamental error". They decided that she had had a fair hearing even with the reports.

The (involuntary) patient's attorney, Molly Pettry, told Arizona's Law that she was "disappointed" in the decision even though it will not impact her client in this case. She points out that evaluating physicians must better follow the requirements because people's liberty is at stake.

She notes that G.B., the 70-year old woman in this case, was back in her home after the court-ordered treatments she received had not been successful and the order expired.

Pettry is part of the Pima County Mental Health Defender's Office, representing people with mental illness who face involuntary commitment, guardianship proceedings and dependency actions.

This article was reported by AZ Law founder Paul Weich. 

"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 ...