BREAKING UPDATE: Arizona Counties Must Continue To Accept All Voter Registrations Even Without Proof of Citizenship, 2nd 9th Circuit Panel Rules Tonight; Voters Would Vote Only In Federal Races

UPDATE, 8/1, 9:45pm: "BREAKING UPDATE: Arizona Counties Must Continue To Accept All Voter Registrations Even Without Proof of Citizenship, 2nd 9th Circuit Panel Rules Tonight; Voters Would Vote Only In Federal Races"

Not surprisingly, a 9th Circuit panel tonight overruled their colleagues who had handed Republican lawmakers a win two weeks ago on rejecting voter registrations from people who use the state form but do not submit "documentary proof of citizenship".

Counties had immediately announced that they would reject the new applications, but the ruling caused much confusion as early voting in the primary election was continuing* and with the November general election fast approaching.

Now, pending consideration of the multiple appeals, Arizona counties will continue to accept voter registration applications that do not attach documentary proof of citizenship - whether with the state form or the federal form. Those voters - who swore that they are U.S. citizens - will only be able to vote in federal races. They will receive a "fed only" ballot. (Maricopa County Voting Centers this week were supplied with "Proof of Citizenship" forms to assist fed-only voters in being able to vote on Arizona races and measures.)

The split 2-1 decision tonight not only cited the well-known (and Arizona-grown) Purcell principle about changing election procedures too close to an election, as well as determining that the previous judges did not properly consider the necessary factors in lifting Judge Susan Bolton's stay on parts of the 2022 law.

The motions panel’s order failed to provide a reasoned analysis of the Nken factors with respect to A.R.S. § 16-121.01(C), and we do not see how a balancing of these factors could weigh in favor of a stay. Moreover, the motions panel overlooked “considerations specific to election cases” and misunderstood the extent of confusion and chaos that would be engendered by a late-stage alteration to the status quo of Arizona’s election rules in apparent disregard of the Supreme Court’s admonitions in Purcell....

Dissenting, Judge Patrick Bumatay disagreed on the balancing of the factors. And, he scolded the majority for taking the unusual step of reconsidering the motions panel's decision. 

The majority was Judges Kim Warlaw and Ronald Gould.

* Misperceptions of the ruling were raised multiple times by voters and poll workers at the Mesa Voting Center which I was leading. Not to mention the uncertainty expressed by attorneys, lawmakers, elections officials and others.

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UPDATE, 7/18, 1:30pm: "BREAKING UPDATE: 9th Circuit Panel Gives State Temporary Stay Allowing It To Reject Some "Fed-Only" Voter Registrations Submitted Without Proof of Citizenship "

In an interim ruling, a panel of 9th Circuit appeals judges issued an Order today that allows Arizona to reject some voter registrations submitted without "documentary proof of citizenship".

The request was brought by Arizona State Senate President Warren Petersen and House Speaker Ben Toma, as several appeals (and cross-appeals) work their way through the courts. Today's ruling also consolidates and expedites those appeals for another panel of judges, and notes that that other panel might reverse today's stay.

Petersen immediately wrote that today's Order - which denied their requests for other portions of the 2022 laws to go into effect - was a big win: "We are grateful the court is upholding this provision in our law, and it's time for Congress to take action to ensure only lawful U.S. citizens are voting in federal races."

Later: Minutes after this article was published, Maricopa County Recorder Stephen Richer posted that all of the County Recorders would immediately reject voter registration applications on the Arizona form which is not accompanied by the documentary proof. He also noted that federal form applications - in which the potential voter swears that he or she is a citizen - without documentation would continue to be accepted and the voter would receive a fed-only ballot.

Today's Order was from Judges Bridget Bade (Arizona), Kenneth Lee and Danielle Forrest. All were appointed during President Trump's term.

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Original article, 6/28: "UPDATE: Toma-Petersen-RNC Lose In One Court, Quickly Ask 9th Circuit For Emergency Stay On Proof of Citizenship (Federal Elections) Issue"

Arizona legislative leaders Ben Toma and Warren Petersen (along with the Republican National Committee filed an Emergency Motion with the 9th Circuit after an Order saying that new requirements to require documentary proof of citizenship to vote in federal elections cannot go into effect for November's election.

Judge Susan Bolton had previously issued a stay preventing portions of the 2022 laws from going into effect. Today, she refused to allow them to go into effect while the Republicans appeal to the 9th Circuit. The Emergency Motion was filed yesterday.

Both sides have appealed (different) portions of Judge Bolton's previous Order, and briefing will continue into the Fall. Secretary of State Adrian Fontes's attorneys have argued that allowing new requirements to go into effect this close to the elections would cause chaos.

Also in today's ruling, Judge Bolton decided - again - that the Arizona Republican Party cannot intervene in the case at this time. The latest attempt was filed by former Arizona Supreme Court Justice Andrew Gould, and Bolton rejected it as moot, based on timing.

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.

NEW: Court of Appeals Knocks Legislators' Suit Against "Voters' Right To Know Act", But Gives AZ Legislature a Chance To Limit (READ Opinion)

Arizona's "Voters' Right To Know Act" is still standing after the Court of Appeals today mostly ruled against House Speaker Ben Toma and Senate President Warren Petersen. However, the judges did find that a provision designed to limit the Legislature's ability to limit the Citizens' Clean Elections Commission's authority is unconstitutional.

Therefore, the Legislature can try to pass laws (with the Governor's signature) that could limit the CCEC's rules or enforcement actions.

Toma-Petersen retained outside counsel Snell & Wilmer to contest both that provision and, more importantly, the Act's giving the CCEC the power to enforce the voter-approved measure to prompt the disclosure of "dark money".

At oral argument, an attorney for the Commission acknowledged that if the term "legislative governmental body" in the Act included the Legislature, then the limitation would be unconstitutional.

No word yet on whether the legislative leaders intend to appeal the unfavorable part of today's Opinion or whether they plan to try to pass laws limiting the CCEC (as they have done before).

Other lawsuits challenging the Voters' Right to Know Act have also fallen short, and the rules passed by the CCEC are in effect for this year's elections. They require disclosure of the original source of monies behind certain larger expenditures.

In fact, today's decision came out just as the CCEC was meeting to pass another Advisory Opinion to give committees (and, attorneys) guidance on what spenders are subject to the Act. (More on that later.)

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.

BREAKING: AZ Supreme Court Rules In Favor Of Resolution Copper Mine, State Could Issue Water Permit (READ Opinion)

The Arizona Supreme Court ruled today in favor of the Resolution Copper Mine in Superior, in one of several legal battles about the controversial mining operation. The Justices unanimously vacated a lower court ruling that the state should not have granted a water permit, because the expansion of the existing mine was a new pollutant source that could damage the Queen Creek (desert) river.

The permit - initially granted before this 2017 case began - has since expired. However, this Opinion (authored by Justice Kathryn King) can set the stage for a reissuance.

Queen Creek - the dry river, not the booming suburb - is legally defined as "impaired water" because of previous mining pollution. Therefore, if "Shaft 10" constituted a "new source" of potential damage, the state permit should not have been issued - as the San Carlos Apache Tribe argued to the courts.

Arizona Department of Environmental Quality, an Administrative Law Judge and the Superior Court judge all ruled in favor of the permit. However, last year, the Court of Appeals disagreed, finding that Shaft 10 was a "new source".

Today's Opinion established a step-by-step test to make the determination, and found that Shaft 10 is more integrated with the existing mine components. "According to Resolution’s General Plan of Operations, in the event of future ore extraction, two new shafts “will be production shafts dedicated to hoisting ore and other rock material from the Mine”—these will be Shafts 11 and 12. The Plan of Operations does not state that Shaft 10 will be used for ore extraction. Thus, we cannot speculate about such alleged future use of Shaft 10."

Resolution Copper Mining is owned by two of the four largest mining companies in the world - Rio Tinto and BHP. Several other challenges to the expansion of the mining complex into the Oak Flat area continue to work through federal courts. (In March, the 9th Circuit ruled against a preliminary injunction against the mine on the basis that the 2014 land exchange sought by members of the San Carlos violated their rights and treaties.)

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.

BREAKING: Maricopa County Attorney Tells Judge GOP Official Shelby Busch Gave False Testimony About Election Worker Threats This Month (NEWS ANALYSIS)

This weekend, Maricopa County Recorder Stephen Richer released a video of Republican official Shelby Busch telling an audience that she would "lynch" Richer if he walked into the room. The video has received national attention, and Busch now claims that the comments she made in March were "a joke".

The video is now being brought to a Maricopa County Superior Court Judge's attention as evidence that Busch gave "false" testimony earlier this month in a case she brought against the County for access to lists of election workers from past elections. That Motion is published at the bottom of this article.

Busch is First Vice Chair of the Maricopa County Republican Committee, and is the Arizona GOP's Delegation Chair to next month's Republican National Convention. 

Chandler attorney and Arizona's Law stalwart Tom Ryan posted the following thread on X/Twitter this evening:

Dear 'Zona Litigation Disaster Tourists, tonight I have some interesting news to share with you. Many of you have been following the disgraceful comments by @ShelbyBusch7 where she said she would lynch County Recorder Stephen Lynch if she could. 1/ 

What @shelbybusch7 did was engage in what is known as Stochastic Terrorism*. Shelby claims she was joking, but her passive/aggressive behavior is Stochastic Terrorism. 2/ *

How Stochastic Terrorism Uses Disgust to Incite Violence

@ShelbyBusch7 Stochastic Terrorism is used to dehumanize and incite others to violence against individuals or a class of individuals. In this case, Ms. Busch's (phony) claim of being a good Christian woman referring to Stephen Richer, a known Jew, is that type of terrorism. 3/ 

@ShelbyBusch7 So if Stochastic Terrorism and antisemitism were not enough for you to be disgusted by this woman, I give you one other to ponder. You see, Ms. Busch is a litigant in a case entitled "We The People Alliance Arizona v. Stephen Richer." Maricopa County Cause No. CV2022-053499. 4/ 

@ShelbyBusch7 Ms. Busch and her so-called alliance is represented by none other than Kari Lake's sanctioned (and soon to be suspended) attorney, Bryan Blehm. The lawsuit they cooked up was to compel Richer's office to cough up names & identities of County Elections employees. 4/ 

@ShelbyBusch7 (Grr! Last one should have been "5/", so this one will be "6/". Sorry) Thank goodness that after County employees have received so many death threats due to the type of Stochastic Terrorism employed by people like Ms. Busch, the County sought to protect their identity. 6/ 

@ShelbyBusch7 I represented one such high-level employee who had horrendous death threats made against her, caused her to leave her employment & flee her home. These threats are real, they are scary, & they have their desired affect on these public servants. 7/ 

@ShelbyBusch7 On June 12, 2024, there was an evidentiary hearing on We The People's demand for County Employees' identities. Judge Scott Blaney heard the case & took the matter under advisement. But before the close of evidence: SHELBY BUSCH TOOK THE STAND & SWORE AN OATH TO TELL THE TRUTH. 8/ 

@ShelbyBusch7 Shelby Busch was asked, UNDER OATH, if she was aware of any threats made against Maricopa County Elections workers. I watched the trial online. Ms. Busch testified that she had seen NO EVIDENCE OF ANY SUCH THREATS made against County Elections Workers. 9/ 

@ShelbyBusch7 On June 12, 2024, when Shelby Busch answered the question about her knowledge of threats made against Maricopa County Elections Workers she HID THE FACT that on MARCH 20, 2024 after claiming unity with only Christians she HERSELF said she would like to lynch Stephen Richer. 10/ 

@ShelbyBusch7 Ms. Busch's testimony on June 12, 2024, after swearing upon her oath, was false. She should be investigated for false swearing & perjury. And before any MAGA heads "poo poo" this, her false swearing deprived County Counsel of the right to impeach her testimony! 11/ 

@ShelbyBusch7 The problem is until June 24, 2024, when the Arizona Republic 1st reported on Ms. Busch's disgusting, antisemitic threats against Mr. Richer, her false testimony was hidden from Maricopa County Counsel. 12/

.'I would lynch him': Maricopa County Republican party vice chair threatens recorder

In the video, Shelby Bush contrasts Stephen Richer, who is Jewish, against someone she says is a "good Christian man that believes what we believe."

@ShelbyBusch7 Earlier today, I called on @Rachel1Mitchell to condemn the stochastic terrorism and antisemitism of @ShelbyBusch7 I should have waited. Tonight Rachel Mitchell's office through the phenomenal attorneys in the Civil Service Division filed their Motion to Reopen Evidence. 13/ 

I hope you're following along with @arizonaslaw for a fuller expose of the County's blockbuster filing. So I leave you with these thoughts: (1) I believe Ms. Busch should be referred for investigation for false swearing, & if not at least sanctions; 14/ 

@arizonaslaw (2) we need more AZ GOP elected leadership to have the courage to PUBLICLY condemn this kind of outrageous conduct; (3) the Maricopa County GOP leadership should expel Ms. Busch from any leadership position; & (4) we need more police enforcement to protect election workers. END 

The County's Motion is not asking Judge Blaney to refer Busch for perjury charges, although it states that the testimony was "false". Rather, the County asks the Judge to consider Busch's credibility in light of the newly-surfaced video. (Richer noted earlier that he only received the video this past weekend.)

Judge Blaney has Busch's/We the People's claim under advisement.

 

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.

BREAKING UPDATE: AZ AG Mayes Dismisses Opioid Settlement Case; Governor, Legislature Demand Attorneys' Fees

UPDATE, 6/28, 3pm: "AZ AG Mayes Dismisses Opioid Settlement Case; Governor, Legislature Demand A Second Sweep... For Attorneys' Fees"

Attorney General Kris Mayes officially threw in the towel on her legal effort to prevent the Legislature from sweeping $115M of opioid settlement monies from the AG's Office into the General Fund. However, legislative leaders and Governor Katie Hobbs are not quite done, asking the judge to award them attorneys' fees - in effect, a second sweep.

Judge John Hannah's ruling dissolving the TRO that the AG had previously obtained is now in Minute Entry form (below), and we can see that it is a bit more nuanced than previously believed. Hannah relied on a distinction between the appropriations process and how the funds are then spent. It would appear that because the settlement monies were not in a segregated fund (under the AG's control), the Legislature has the right to appropriate them as Arizona's revenues.

The judge then notes "If the money is (mis)spent, there is a recourse." ("mis" added)

The lawmakers and Hobbs cite an Arizona statute that makes an award to a prevailing governmental entity mandatory in a suit brought by another governmental entity. (A.R.S. §12-348.01) In this case, the outside counsel retained by the lawmakers (Snell & Wilmer) and the Department of Administration (Coppersmith Brockelman) will be paid out of the AG's budget.

The voluntary dismissal ensures that there will be no last-second appeals that could throw the last-minute budget deal into chaos as the fiscal year is ending.

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Original article, 6/21; "BREAKING: Arizona Budget Partners - Hobbs, Toma, Petersen - Lawyer Up and Strike Back vs. Attorney General Over Opioid Settlement Monies"

The legal battle over whether Arizona budget partners - Governor Katie Hobbs and the Legislature - could sweep $115M of opioid settlement monies from the Attorney General office - heated up this afternoon, with allegations of misleading the Court filed.

Attorney General Kris Mayes obtained a Temporary Restraining Order ("TRO") yesterday to prevent the budget sweep from happening. To get that Order signed (by a Court Commissioner) without a hearing or response ("ex parte"), they needed to represent that it was such an emergency that it needed to be signed before giving notice, or that they had given notice.

Today, Governor Katie Hobbs - through the Department of Administration and its Executive Deputy Director - retained outside counsel (Andy Gaona at Coppersmith Brockelman). They filed a Motion to move up the hearing set for next Thursday, and explain that the notice was only given to the Department of Administration's Executive Deputy Director's assistant (that is also in a separate legal dispute) after the pleadings had been filed (but before Commissioner Cronin was reading and considering them).

The AG's Motion stated that "Plaintiff is notifying the Arizona Department of Administration of this motion and papers via email and contacting it by phone upon their filing." Hobbs' Motion today states "this is simply not the way we practice law in Arizona.

...“notice” was provided by email and a single phone call to the ADOA Executive Deputy Director’s assistant after counsel filed those pleadings and while they were awaiting assignment to a judge to present them. Twenty-four minutes later, the Attorney General’s counsel emailed ADOA’s in-house counsel to inform it that Commissioner Cronin “is reading the papers now” and that counsel was “in her waiting room.” And by the time undersigned counsel was able to look briefly at the Complaint and speak for just a moment with ADOA’s in-house counsel, Commissioner Cronin had already granted the Attorney General her requested TRO and set the matter for an order to show cause hearing on June 27 before Judge Minder.

Meanwhile, House Speaker Ben Toma and Senate President Warren Petersen retained Brett Johnson and team (Snell & Wilmer) to file Motions to Intervene and to Dissolve the TRO.

 

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.

UPDATE: Toma/Petersen Tell Court: Our "Bell Cannot Be Unrung"; Ask To Stay Their Depositions In Transgender School Sports Case While They Appeal Order

Update, 6/21, 4pm: "UPDATE: Toma/Petersen Tell Court: Our "Bell Cannot Be Unrung"; Ask To Stay Their Depositions In Transgender School Sports Case While They Appeal Order"

One day after being ordered to sit for depositions in the case challenging the Legislature's 2022 ban on transgender girls playing school sports on girls teams, House Speaker Ben Toma and Warren Petersen asked for a stay so that they can appeal. 

They did not also ask to stay their retaliatory depositions of the young girls they asked to take.*

Toma-Petersen - represented by a Missouri law firm - indicated that they want the stay while they appeal yesterday's decision. They claim that the 9th Circuit will rule in their favor and allow them to maintain legislative privilege in a case where they have intervened. "The Legislative Leaders cannot remedy the harm caused by disclosing the documents and sitting for depositions. The bell cannot be unrung."

The 9th Circuit recently ruled against Toma-Petersen in a similar situation dealing with challenges of 2022 voter registration and registration rolls laws.

* I verified the portion of Judge Jennifer Zipps' ruling that implied that Toma-Petersen's request to depose the minor girl plaintiffs was retaliatory. The Toma-Petersen Response to the Motion to Compel stated simply that "If the Legislative Leaders are deposed, Plaintiffs also should be deposed under the discovery rules and the facts of this case."

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Original article, 6/20: "BREAKING: AZ House Speaker Toma & Senate Pres. Petersen Waived Leg Privilege, Must Sit For Depos In Transgender Sports Case; But, Minor Girls Do, Too"

In a twist this afternoon, a judge issued an Order compelling Arizona House Speaker Ben Toma and Senate President Warren Petersen to sit for depositions in the long-running battle about whether an Arizona law can ban transgender girls from playing school sports on girls teams.

The Speaker and President told the Court that if they were to be deposed, that they would also seek to depose the minor girls who brought the lawsuit against State Superintendent of Public Instruction Tom Horne. The Judge agreed to allow the girls to be deposed, with strict limits on what could be asked.

U.S. District Court Judge Jennifer Zipps issued the 14-page ruling this afternoon, finding that Toma and Petersen had waived their legislative privilege after they moved to intervene in the lawsuit.

The limits she put on Toma/Petersen in deposing the girls are that (1) they "shall not question minor Plaintiffs about the legitimacy or the appropriateness of the Plaintiffs’ medical and/or mental health treatment; and (2) they "shall not ask the minor Plaintiffs any questions regarding sexual abuse, assault, or misconduct."

The Judge indicated that Toma/Petersen "may reference the minor Plaintiffs’ medical records and/or letters from mental health providers only to the extent that it is necessary to confirm or clarify the record."

Zipps has ruled the 2022 Arizona law unconstitutional and kept it from going into effect. Horne has unsuccessfully appealed the injunction. The 9th Circuit currently is considering an appeal from the America First Legal Foundation, which is also seeking to intervene in the 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.

BREAKING UPDATE: 9th Circuit Wastes No Time In REJECTING Kari Lake/Mark Finchem Call To "Recall Mandate" In Voting Machines Case

 "BREAKING UPDATE: 9th Circuit Wastes No Time In REJECTING Kari Lake/Mark Finchem Call To "Recall Mandate" In Voting Machines Case"

It only took one week for a panel of 9th Circuit judges REJECTED Kari Lake and Mark Finchem's unusual "Motion to Recall Mandate" in their dismissed 2022 case challenging Arizona's use of electronic machines in elections.

In the Motion, Lake and Finchem brought their same batch of purported new evidence that Maricopa County had done things incorrectly and had misled previous courts. It was similar to the claims that the U.S. Supreme Court had quickly rejected earlier this year.

Maricopa County filed a 27-page response that was joined by the Arizona Secretary of State's Office. They asked to be reimbursed for the Response, but the judges rejected the request.

There are still pending appeals by Lake's and Finchem's attorneys challenging the $122,200 in sanctions levied against them.

 

Correction: The article has been corrected to reflect that the request for sanctions was denied by the judges.

*****

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's Law Briefs, Updates and Links (Week of June 17)

6/20, 12:30pm: "BREAKING UPDATE: 9th Circuit Wastes No Time In REJECTING Kari Lake/Mark Finchem Call To "Recall Mandate" In Voting Machines Case"

In just one week, a panel of 9th Circuit judges REJECTED Kari Lake and Mark Finchem's unusual "Motion to Recall Mandate" in their dismissed 2022 case challenging Arizona's use of electronic machines in elections.

 (Article, Order, Response: tinyurl.com/AZlaw1992

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 BREAKING UPDATE: @GovernorHobbs Files Special Action Petition To Defend Work-Around Agency Director Appointments 

MORE, READ Petition: https://tinyurl.com/AZlaw1984

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UPDATE: AZ Supreme Court's Administrator SOFTENS Proposed Bar Complaint Rule Change, But Could Still Limit Public Information About Election-Related Complaints (NEWS ANALYSIS)

https://tinyurl.com/AZlaw1991

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Arizona prisons settle censorship case brought by Prison Legal News

Christina Avery, Arizona Republic

https://tinyurl.com/yeztb4mu

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UPDATE: Supreme Court's Administrator Softens Proposed Bar Complaint Rule Change, But Could Still Limit Public Information About Election-Related Complaints (NEWS ANALYSIS)

The Arizona Courts' Administrative Director who is asking the Supreme Court Justices to make it more difficult for the public to learn about some elections-related State Bar complaints has softened some of his proposed language. Attorneys who filed some of the complaints are not impressed, saying the end result would be the same.

The Arizona Republic reported last week that the Court's Dave Byers filed the Petition in April, and that attorneys representing the newspaper had objected on the grounds that it would make information harder to come by.

Byers yesterday filed a Reply acknowledging that objection - and others - and he changed some of the language in the amendments.

A number of attorneys filed Bar Complaints accusing attorneys for Donald Trump (and others challenging elections results and processes) of ethical violations by bringing cases without substantial justification and misrepresenting facts and evidence (or the lack thereof). Under current rules, the complainants receive updates on the State Bar's investigation that reporters would not otherwise have access to.

The proposed changes would cut the complainants out of the process early on, by saying that they do not have "standing" if the complaint was based on media coverage of the initial case. The Petition notes that there have been "at least 40 elections-related cases submitted since the 2020 election, and that "submissions concerning election-related litigation create a risk of the disciplinary process being weaponized by partisans or the appearance of that occurring."

Byers yesterday removed all references to lack of standing, and changed the hazy word "serious" (misconduct) to "sanctionable" (misconduct). The outcome, however, would be the same. He explains to Arizona's Law "the word 'standing' was confusing people who thought they were being limited, even if they had personal knowledge of ethical misconduct. The change clarifies the issue."

Attorney Dianne Post is one of the attorneys filing several elections-related ethics complaints, and she tells Arizona's Law that Byers' adjustments do not solve the issue.

"Byers comments do not respond to any of our concerns. It is gratuitous name calling from a person with no legitimate legal argument. To suggest that 40 complaints out of more than 2,000 is a flood of complaints is ludicrous. Those who express concerns about weaponizing the bar are the very ones who have been weaponizing the bar. Dave Byers ignores the fact that the complaints about lawyers involved in election law were the very lawyers accused of improperly attempting to weaponize the justice system in Arizona by filing frivolous, fraudulent lawsuits - and often found by the court to have done so. That is what should be most concerning, not legitimate Bar charges, regardless of what they are based upon, that these ethics violations occurred." 

One of the key accusations in several of the elections-related ethics complaints are that the attorneys who filed the dismissed cases (that often result in sanctions) were largely trying to use the court system to bring political talking points to a public square. The rules change could cap public information and create an imbalance in the access to that public square.

Byers answers to the Arizona Supreme Court's Chief Justice - currently Robert Brutinel - and his Petition was presented just one week before those Justices issued an  Opinion reversing sanctions imposed by two lower courts in a post-2020 elections case. The Justices acknowledged that attorneys (and their clients) may file "long-shot" elections cases for political motives, and reduced the likelihood that they would be sanctioned.

Byers' proposed rules change would reduce the likelihood that they would face public reporting of potential ethics investigations.

But Byers tells us that his motivation was different. "It’s being addressed now because I sit on the Bar’s discipline committee and have seen firsthand these types of cases come in, as well as the weaponization of the system. Sen. Kern filed a bill that was attempting to deal with this issue. It failed. I’m trying to get ahead of the next election cycle to bring about fairness and reasonableness to the process."

State Sen. President (and, attorney) Warren Petersen cited Kern's bill in his comment to the Supreme Court supporting the change.

But, Chandler attorney (and Arizona's Law contributor) Tom Ryan sees irony in Byers' and Petersen's weaponization comments. He points to (one of) the Legislature's ballot referral(s), which would give the Arizona Supreme Court Justices life terms:

"The wording of SCR 1044 completely politicizes Arizona’s judicial system.  

         1.      What defines “good behavior”?

         2.      A commission decides whether bad behavior existed.  the commission members are appointed by the chief justice.    

         3.      Once, it is found, how is the removal enforced?  By the Legislature?  By the commission?  By which court?  The Supreme Court?  

         The court system will be much more political than it is now when the chief justice appoints a commission to determine when judges will have to face retention."

(SCR 1044 was initially proposed by a group of Arizona judges frustrated that voters iu 2022 decided not to retain three judges.) 

The Supreme Court Justices are set to consider Byers' Petition in August.

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.

BREAKING: DOJ @CivilRights Division announces results of 3-year investigation into Phoenix PD patterns and practices

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.

SANCTIONS SCOREBOARD UPDATE: BREAKING: Mark Finchem hit with MORE sanctions in failed 2022 Election Contest

For the second time this week, the Court of Appeals has rejected 2022 Election Contest appeals from statewide Republican candidates. Today, they added more sanctions to the totals incurred by Mark Finchem.

In a unanimous Opinion, the judges affirmed the $47,706.50 in sanctions levied by the trial court, and added a (yet-undetermined) portion of Secretary of State Adrian Fontes's attorneys' fees in the groundless appeal.

Judge Samuel Thumma wrote the 11-page opinion for the three judge panel. explaining how the twists and turns of this long case resulted in today's decision. Finchem's prior counsel, Dan McCauley, withdrew part of the way through this (second) appeal, due to his agreement with the State Bar about his violations of ethical rules in the trial court portion.

However, the briefs had already been filed, and neither Finchem nor replacement attorney Dennis Wilenchik sought to amend them. The court today found that Finchem  had waived arguments that they wanted to assert by not mentioning them in the briefs, and had tried to withdraw some of the arguments that were presented in the briefs (at oral argument).

The Opinion is not clear about what portion of the Secretary of State's appellate fees will be awarded, and as to who will be responsible for them. Given the rest of the Opinion, it is possible that McCauley will be held partially responsible, even though he withdrew.

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.

BREAKING: Will Sen. Bolick Recuse From Vote Tomorrow That Could Protect Supreme Court Justice Bolick?

The Arizona State Senate is planning to vote tomorrow on whether to push a referral to the ballot that would do away with judicial term limits. The Republicans hold a 16-14 edge in the chamber, and one of them is Sen. Bolick.

On the November ballot for retention is Supreme Court Justice Bolick. 

The two are Shawnna and Clint, respectively. Husband and wife.

The ballot referral measure contains an unusual retroactivity clause. If passed, it will undo the results of Justice Bolick's retention vote. That retention vote is generally not an issue, but Bolick's position in the majority in the Opinion that reinstated Arizona's 1864 abortion ban statute made his retention much more contentious.

Beyond the Bolick/Bolick issue, the measure the Senate plans to vote on greatly changes Arizona's highly-praised process for appointing and retaining judges in the more populous counties and the appellate courts.

Changing the process from a straight up and down retention vote every four (Superior) or six (appellate) years to allowing them to continue holding office "during good behavior" is the biggest change.

Here is the Senate's Fact Sheet - which was revised today - summarizing the changes that would be made if the Senate and voters pass it. The House passed it today on a party-line, 31-29, vote.

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.

CONFIRMED: Kari Lake To Ask (AZ) Supreme Court To Review Election Contest Loss

Update, 6/13: "CONFIRMED: Kari Lake To Ask (AZ) Supreme Court To Review Election Contest Loss"

Kari Lake's attorney confirmed to Arizona's Law that he plans to ask the Arizona Supreme Court to review this week's 2022 Election Contest loss.

"We intend to seek review," Kurt Olsen emailed us. Olsen and co-counsel Bryan Blehm have 30 days (from the June 11 Opinion) to file their Petition for Review. The Arizona Supreme Court has discretion as to whether or not to accept the 

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Original article, 6/11: "BREAKING: Katie Hobbs Still Governor, Kari Lake Loses 2022 Election Contest Appeal"

The Court of Appeals (finally) REJECTED Kari Lake's appeal of her 2022 Election Contest, unanimously affirming the lower court's decisions. Judge Sean Brearcliffe authored the 23-page Opinion, which methodically dispenses of Lake's arguments to grant her relief from Superior Court Judge Peter Thompson's judgment dismissing her contest.

One of the arguments that Lake supporters have frequently used is that Maricopa County Co-Elections Director Scott Jarrett lied about the printer/tabulator issues that impacted some of the 2022 Voting Centers on Election Day. The Court of Appeals analyzed it: "At best, this is a misunderstanding between an attorney and a witness that was ironed-out during a trial."

Lake has been represented in this Election Contest by Kurt Olsen and Bryan Blehm. Both have been the subject of ethics complaints, and the Arizona Supreme Court recently ordered Blehm suspended for two months because of the case. It is unclear (but likely) whether Lake will appeal today's decision, and whether Blehm will be able to be part of such an appeal.

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.