In an unusual action in an unusual Election Contest, Abe Hamadeh's legal team filed a Special Action Petition with the Arizona Supreme Court today, in an effort to get a new trial about the "uncounted votes" in the Arizona Attorney General's race.
His case has been hung up in the trial court since his counsel conceded in late December that they had not been able to bring enough credible evidence - even after a court-ordered inspection of some ballots - to the court within the time mandated by Arizona's Election Contest statutes.
That trial concluded by Hamadeh attorney Tim LaSota telling the judge that he did not need to come in to produce a final, appealable order on the Monday after Christmas because he did not anticipate an immediate appeal: "(E)ventually you'll do a written order, but I don't think you need to do that on Monday."
After the New Year's holiday, Hamadeh filed a Motion for New Trial based largely on the discrepancies found in Pinal County during the automatic recount process.
"Eventually" has never come. Mohave County Superior Court Judge Lee Jantzen has never signed an appealable Order - either for the original dismissal nor for the denial of the new trial motion.
This has put the case into a legal limbo, and today's Special Action is a well-meaning effort to end that limbo. However, it does not fit neatly into the court's rules for Special Action petitions. And, the key rule of whether a Special Action petition is appropriate states that it is only to be used if nothing else is available. "Except as authorized by statute, the special action shall not be available where there is an equally plain, speedy, and adequate remedy by appeal; and nothing in these rules shall be construed as enlarging the scope of the relief traditionally granted under the writs of certiorari, mandamus, and prohibition." (Rule 1(a), Rules for Special Actions) (emphasis added)
Here is the Rule about what questions are appropriate for a Special Action:
The only questions that may be raised in a special action are:
(a) Whether the defendant has failed to exercise discretion which he has a duty to exercise; or to perform a duty required by law as to which he has no discretion; or
(b) Whether the defendant has proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority; or
(c) Whether a determination was arbitrary and capricious or an abuse of discretion. (Rules for Special Actions, Rule 3)
Hamadeh attorney Jen Wright attempts to shoehorn the case into (c).
In effect, the Hamadeh team has now created a 2nd appeal - one with the Court of Appeals and one with the Supreme Court.
In January, Kari Lake's attorneys created similar confusion by filing a Special Action after starting an appeal; the Supreme Court cited the multiple appeals as a reason to not expedite the case by accepting transfer. Instead, they decided to let the Court of Appeals sort it out.
In this case, the lack of an appealable order from the trial court judge may convince the Supreme Court to take a different approach this time.
However, Hamadeh's team has not exhausted its "equally plain, speedy, and adequate remed(ies) by appeal". After filing the Notice of Appeal on July 18, Hamadeh's team did not ask the Court of Appeals (or the Supreme Court) to move forward on an expedited basis encouraged for election-related appeals (Rule 10, ARCAP). It did not ask for the court to order Judge Jantzen to sign a final order (by giving the judge limited jurisdiction to do so).
(This is a developing story. Please check back for more details.)
"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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