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.
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