BREAKING: Settlement Agreement Reached In AZ Democrats' Lawsuit Against State Senate/Cyber Ninjas Audit/Recount (READ Agreement)

The State Senate and Cyber Ninjas have agreed to settle the lawsuit filed against their audit/recount by the Arizona Democratic Party and one Maricopa County Supervisor. In the agreement (below), they agree that (1) the Cyber Ninjas will not compare early ballot envelope signatures with those in the voter registration files; (2) that they will allow news reporters freer access to the recount presently taking place at the Veterans Memorial Coliseum; (3) will continue to allow the Secretary of State to send observers to the recount; and (4) continue to abide by all of the policies and procedures which they submitted to the court last week.

The parties also agreed to procedures to follow in case either side believes the other is breaching the agreements. Along those lines, Secretary of State Katie Hobbs delivered a 6-page letter this afternoon detailing 13 concerns which must be addressed within the 48 hours specified in the settlement. The letter was addressed to Ken Bennett, a former Secretary of State who is now acting as the State Senate's liaison to the Cyber Ninjas.

Those concerns include a "partial list of incidents" compiled by the Secretary's observers on April 30 and May 1: 

--ballots left on tables unattended

--scrap paper tally sheets

--table leads "correcting" counters' tally sheets 

--assts "intermixing ballots from separate stacks" 

--counters conferring on how to tally a vote

--more

The audit/recount twitter account - formerly controlled by Bennett but now apparently operated by committee - has lashed out at Hobbs' letter, saying "AZ @SecretaryHobbs continues to make baseless claimes about this forensic audit but has never led an election audit in her entire career."

The suit was filed  by the Democrats on April 22, the day before the recount portion of the audit was set to begin. The case was marked by a chaotic initial hearing at which the judge proposed a temporary pause conditioned on the Democrats posting a $1M bond. After the audit continued, the judge recused himself upon discovering that one of the Cyber Ninjas' attorneys used to extern for him. 

The Cyber Ninjas then (unsuccessfully) tried to delay the hearing in front of the new judge by firing those attorneys the night before. The judge refused to stop the recount but also refused to allow the Cyber Ninjas to secretly file their policies and procedures. The parties agreed that the security plan for the site could remain confidential, but the Cyber Ninjas had not properly filed it and it was temporarily publicly released by the court.

Arizona Secretary of State Katie Hobbs intervened into the action, and issued a statement about today's settlement. Nonetheless, she uses the present tense while saying that her "concerns about this ongoing exercise increase every day."

 (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. 

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 podcast.

BREAKING: Judge Denies Cyber Ninjas' Request For Emergency Hearing Re: Security Plan

Superior Court Judge Daniel Martin has flat-out rejected the Cyber Ninjas' request for an emergency hearing on the mistakenly-filed security plan. The company in charge of the State Senate's recount/audit had sought to file the security plan - along with other documents - under seal last week. After Judge Martin rejected that, the Cyber Ninjas reached an agreement with the other parties to the lawsuit to keep only the security plan under wraps.

Unfortunately for them, they had improperly presented the documents to the court initially, and the security plan became public at noon on Thursday. On Thursday night, attorneys for Cyber Ninjas filed a motion asking for an emergency hearing on what they claimed was the court's inappropriate release.

After no response from opposing attorneys and silence from the court, the judge this morning simply said that there were no grounds for an emergency hearing and denied the request.

Arizona's Law had posted on Thursday afternoon about the portion of the security plan which concerned the possibility of "Antifa" and "militia" activity near the Veterans Memorial Coliseum and stating that Antifa might try to cause a major emergency at the adjacent chemical tanks and then block emergency response personnel in order to create a security problem at the recount.

 "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 podcast.

BREAKING: Judge Dismisses Libertarian Case, Says Maricopa County's Bonus Election Audits In February Did NOT Require Parties' Presence

Maricopa County conducted two extra election audits in February, but did not need to invite the political parties to observe them. That was today's ruling by Maricopa County Superior Court Judge Joseph Mikitish, throwing out the Libertarian Party's lawsuit against the County.

In the statutorily-required election audits and tests - both before and after the election, the County does invite observers from the Democratic Party, the Republican Party and the Libertarian Party. However, in January, under political pressure from Republicans claiming that there was fraud in November's election, the Board of Supervisors approved additional audits to again try to convince the conspiracy theorists that the election was fraud-free.

The Libertarians filed the lawsuit during the February "bonus" audits, and the County moved to dismiss. (The Arizona Republican Party* tried to join in on the Libertarians' side.) In today's Minute Entry, Mikitish granted the Motion.

Mikitish explained his reasoning:

The Manual does not require political party participation in forensic audits not set forth by

statute. Rather, the Manual allows counties to conduct additional logic and accuracy tests not provided by law, “including with participation from representatives of the recognized political parties.” Election Procedures Manual at 86, n. 22. The “including with” language in the Manual is not mandatory. If the Secretary of State, who prepared the Manual, had intended party participation to be mandatory in discretionary post-election audits, she could have made that intention clear. For example, she could have stated that audits shall include party representatives or that no audits, mandatory or discretionary, could take place without party representation. She did not do so. 

Michael Kielsky, attorney for the Maricopa County Libertarian Party, tells Arizona's Law that his client has not yet decided whether or not to appeal the dismissal, but that he believes the judge struggled with his decision before accepting the County's strict reading of the statutes and EPM.

The case has some interesting parallels to the current recount/audit currently being conducted by the Republicans in the State Senate and the Cyber Ninjas. Like the County's February audits, the current activities are extra-legal - not anticipated or covered by either statutes (passed by the State Senate, etc) or the Elections Procedures Manual. 

*The AZGOP was represented by Chris Viskovic and Alexander Kolodin, the same firm currently representing the Cyber Ninjas at Veterans Memorial Colisseum.

 "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 podcast.

TODAY: AZ Supreme Court Tosses Law Unconstitutionally Capping Accident Restitution (READ Opinion)

The Arizona Supreme Court today unanimously tossed a law capping the amount of restitution that an accident victim can receive. The unconstitutional law was passed in 2006 to limit restitution to only $10,000*, although the Victims' Bill of Rights - passed by voters and added to the Arizona Constitution - calls for "prompt restitution".

In this case before the Court, the accident victim's damages were more than $160,000. Phoenix Municipal Court awarded full restitution, but it was overturned by Superior Court. The Court of Appeals reinstated the full award based on the constitutional argument.

The Supreme Court unanimously decided today that the trial judge - and the Court of Appeals - had it right. The VBR is in the Constitution and that trumps the cap placed on it by the Legislature. (The bill was sponsored by now-Congressman Andy Biggs and former Senator (and later, Superintendent of Public Instruction) John Huppenthal had offered the cap idea.)

Justice Bill Montgomery authored the opinion for the 6-0 majority, noting that Arizona voters certainly intended the "prompt restitution" to full compensate the victim.

The scope of restitution afforded to victims when the VBR was considered supports this conclusion. At the time voters approved the VBR, victims were clearly entitled to full restitution. A.R.S. § 13-603(C) (providing that “the court shall require the convicted person to make restitution . . . in the full amount of the economic loss as determined by the court”). And just as we presume that the legislature is aware of the law when it enacts a statute, we presume voters are as well.** 

Getting rid of the cap was appealed by the Phoenix prosecutors and the Attorney General's Office, the Arizona Crime Victim Rights Law Group and National Crime Victim Law Institute all argued in favor of today's decision. 

Attorney Randall Udelman represented the latter two groups and tells Arizona's Law that today's decision "reinforced the notion that a victim of crime may recover the full amount of their economic loss whether or not the choice of weapon to further their crime was a gun, a fist, a knife or a car." He added that it "advances the constitutional goals spelled out in the Crime Victim Bill of Rights passed by Arizona voters thirty-one years ago. 

"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 podcast.

*It was increased to $100,000 in 2018, but that did not apply to this case... and now, it will not apply at all.

**This principle may also come into play in a case currently before the Arizona Supreme Court over the details of the successful 2020 initiative known as Invest In Ed.

TODAY In Election Audit Legal News

 Stay tuned for court filings, and coverage of today's Superior Court arguments.

ADGRG

LIVE-TWEETING today's court arguments on the #AZaudit, beginning at 10:30.

We'll be joined by election security consultant and triple threat @ThePolitiKat and all around threat (and election attorney) @TomRyanLaw!

Ct filings, more: https://t.co/jRgqw7WJyz pic.twitter.com/fkytyS0Agn

— "AZ Law" (@arizonaslaw) April 28, 2021

GGA

NEW: Shooter's World Loses Appeal, Is An "Amusement" (For Tax Purposes); It's Not Just In the Name (READ Opinion)

 The well-known Phoenix shooting range known as "Shooter's World" should be taxed as "an amusement", the Arizona Court of Appeals ruled today. The unanimous decision upholds the Tax Court's ruling on the state's claim for more than $500,000 in taxes/interest/penalties.

The dispute about the indoor shooting range (and, more) focused largely on whether it is subject to the same tax as a longggggg* list of amusement businesses. Shooter's World tried to use a previous Arizona Supreme Court finding that "Wilderness World" was NOT subject to the amusement tax, However, Judge Paul McMurdie writing for the majority found that the higher court was not delineating a test to judge all businesses by, and that the river-rafting excursion company was a different kettle of fish. 

To be sure, Shooter’s World takes steps to ensure customer safety. Still, these safety precautions are a far cry from the guidance provided on Wilderness World’s 12-day, several-hundred-mile river expeditions. They are much more comparable to the supervision and safety measures present at any amusement park that operates rollercoasters or go-karts.

The Arizona Department of Revenue was represented by the Attorney General's Office. No word yet on whether Shooter's World will take a shot at bringing the case to the Arizona Supreme Court.

"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 podcast.

*A.R.S. § 42-5073: "theaters, movies, operas, shows of any type or nature, exhibitions, concerts, carnivals, circuses, amusement parks, menageries, fairs, races, contests, games, billiard or pool parlors, bowling alleys, public dances, dance halls, boxing and wrestling matches, skating rinks, tennis courts, except as provided in subsection B of this section, video games, pinball machines or sports events or any other business charging admission or user fees for exhibition, amusement or entertainment, including the operation or sponsorship of events by a tourism and sports authority...."

BREAKING: "Today In Election Audit Legal News", 11am Hearing In Superior Court

1) At 11am this morning, the new judge on the case (Daniel Martin) will be holding a get-up-to-speed return hearing on the Arizona Democratic Party's/Supervisor Steve Gallardo's lawsuit against the State Senate and Cyber Ninjas conducting the recount/audit.

I will be joined by Chandler attorney Tom Ryan for coverage of the hearing, on Twitter. You can click on the tweet below to be taken to that page, then you can "refresh" to read additional tweets.

2) Our NUTSHELL of this morning's hearing:

a. There is no court order currently hanging over the audit. (Which doesn't mean they should go haywire, natch.)

b. Hearing tomorrow at 10:30 on whether to put an order back in place.

c. No change in media/public access. First Amdmt Coalition is now in case, but for limited purpose of fighting Cyber Ninjas efforts to file their procedures under seal.

d. @SecretaryHobbs  also in, Staci Burks out. (Libertarians want to file amicus brief.)

3) Jen Fifield of the Arizona Republic has announced that members of the media have reached an agreement with the State Senate/Cyber Ninjas to allow pool media coverage of the audit/recount. Meanwhile, Ken Bennett (the Senate's liaison to the Cyber Ninjas) will hold a news conference at 5pm.

4) Some ANALYSIS of today's hearing and where we're at:

"I don’t see either Judge Martin or the AZ Supreme Court shutting down the Senate/Ninjas audit/recount at this point.

The unfortunate origin of this legal dispute is that this audit is extra-legal – we never anticipated this kind of post-election game.

So, the State Senate – the body that passes the election integrity laws we already have in place – did not lay down any procedures ----let alone laws ---- to be followed by the Cyber Ninjas.

That problem was exacerbated because Maricopa County, the Secretary of State and the AZ Democratic Party – kept waiting for procedures to become public. So they didn’t file this until the last minute. (Same with the media.)

Now, the judges need to carefully step through this minefield." --PW

LIVE TWEETING, 11am COURT HEARING On Maricopa County Election Audit/Recount.

TUNE IN here for play-by-play and commentary from the @ArizonasLaw, @tomryanlaw and @ThePolitiKat.

MORE court filings and updates: https://t.co/6YdkMbiwN9 pic.twitter.com/E8ahcH0K1a

— "AZ Law" (@arizonaslaw) April 27, 2021

ASDGEAHR

(Check back frequently for updates and new court filings. For previous updates and to read earlier court filings, please go here and here and here. For our article about how judges are chosen for this - and, other - cases, go here)

"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 podcast.

BREAKING: "Today In Election Audit Legal News"; NEW JUDGE Daniel Martin Sets Status Hearing For Tuesday

 Of course, the legal developments in the election audit world did not take the weekend off, and are starting off early on Monday. Let's run them down:

1) The Court has corrected itself. Tomorrow's hearing in front of Judge Martin will be a "return hearing" - more like a status, where-do-we-go-from-here type, hearing. It was previously announced that it would be an "evidentiary hearing".

1) Judge Daniel Martin, assigned to this case earlier today, has set an 11am evidentiary hearing tomorrow (Tuesday), according to KPNX's Brahm Resnik. The Court has now confirmed this. 

FYI, an "evidentiary hearing" is more substantive than a "status hearing". It would not have been surprising for a new judge on the case to have set the latter.

1) As of 9:50: We now have confirmation that Judge Daniel Martin now has the case in Superior Court, and that the 11am hearing is vacated. It is expected that he will set a hearing for either later today or tomorrow to set a new schedule.

1) We are waiting to see if the new SUPERIOR Court judge keeps the 11am hearing that was set by Judge Coury, or needs more time to review the filings and sets a new time and/or date. Heck, we have not yet - as of 9:30am - received word of who the new judge will be.

2) The new judge was needed because Judge Coury suddenly recused himself Sunday night. A former extern of his appeared in the Sunday afternoon filing, which Coury declared to require his recusal. Chris Viskovic is a new associate attorney for Alexander Kolodin, representing Cyber Ninjas. He appeared on Friday at the Supreme Court's hearing, but not officially in the Superior Court case until yesterday.

3) The Senate defendants moved to dismiss the case yesterday. (Pleading below.) The other parties also filed their memoranda, with the Cyber Ninjas asking (again) that everything be filed under seal. (Supreme Court Justice Clint Bolick rejected that request on Friday.)

4) Staci Burk has moved to intervene in this case. Ms. Burk filed her own unsuccessful election challenge last year, and the U.S. Supreme Court is expected to deny her Petition for review next week.

(Check back throughout the day for more updates.)

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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 podcast.

READ: Supreme Court Justice Bolick's Order Re: Election Audit Special Action

 Here are the legal updates on the State Senate's/Cyber Ninjas' election audit/recount. For more details, please visit our previous article and our sidebar about the judge assignment process.

Thursday afternoon, the Arizona Democratic Party and County Supervisor Steve Gallardo sued to stop the audit from taking place.

Friday morning, Superior Court Judge Christopher Coury held a hearing on the request for a TRO (Temporary Restraining Order) to stop the audit. He ordered a "pause" over the weekend (until noon, Monday) IF the Democrats posted a $1M bond to cover damages if their case was thrown out. He ALSO ordered that the Senate/Ninjas produce their policies/procedures for conducting the audit and that they follow all state laws.

The State Senate filed an Emergency Special Action with the Arizona Supreme Court to overturn Judge Coury's "pause", among other things. The Democrats decided not to post the bond, so the "pause" was off the table and the audit could continue on Saturday and Monday morning.

This afternoon, Supreme Court Justice Clint Bolick heard arguments on the Special Action. He took no action, praised Judge Coury's handling of the morning hearing, and ordered an updated pleading from the State Senate on Tuesday, responses on Wednesday, and a reply on Thursday. Either Justice Bolick - who is the "duty Justice" for the next week - or the entire Supreme Court will take it from there.

Here are the Special Action Petition, the Motion for Emergency Stay (mooted), and Justice Bolick's Order: 

 "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 podcast.

SIDEBAR: How Is a Judge Assigned A Case In Maricopa County Superior Court, and What Can the Parties Do?

UPDATE, 4/23 10am: The Maricopa County Superior Court has clarified to Arizona's Law that this case was indeed assigned to Judge Coury by an unbiased computer system. Presiding Judge Pamela Gates then approved the assignment and Judge Coury was then notified. 

The full explanation from the Superior Court Public Information Officer Vincent Funari is below**. 

The random assignment of Judge Christopher Coury to the case filed today by the Arizona Democratic Party and County Supervisor Steve Gallardo against those in the State Senate in charge of the election audit has prompted questions from several readers.

Specifically, how was the judge assigned, and what can the parties do if they object to the assigned judge. Yes, there are rules for that.

First, Rule 3.1.b of the Maricopa County Superior Court Local Rules sets forth how the judge is assigned. There are 22 judges currently on the Civil Bench, and either the Clerk (Jeff Fine), the Court Administrator (Keith Kaplan) or the Presiding Judge (Pamela Gates) makes the decision. 

It is NOT a fully randomized selection. The rule states the assignment "may be done by automated means or by a formula approved by the Supreme Court, and shall be done in a random manner so as to be unpredictable and provide an equal distribution of cases among the trial divisions."

In this case, the Superior Court tells Arizona's Law that the computer randomly assigned the case to Judge Coury, and that assignment was approved by Civil Presiding Judge Pamela Gates.**

Now, even though it is not fully randomized, there is no incentive for an official to make a politically-motivated judge assignment. (The Clerk is a partisan, elected office.) That is because state court rules permit a party to strike a judge "as a matter of right". (UPDATE: The "as a matter of right" rule - Rule 42.1 - has been suspended due to the pandemic. thanks to reader Matt McClellan for catching that.)

And, if the party believes that the judge "is a material witness in the action" or "that on account of the bias, prejudice, or interest of the judge he (the party) cannot obtain a fair and impartial trial." That is from Arizona statutes (A.R.S. §12-409)

Of course, the real, practical questions are whether the Plaintiffs believe that Judge Coury is too biased or prejudiced against them.* And if so, would striking him - either as a matter of right or for cause - be worth the delay that would cause by forcing a re-set of Friday's 11:00am OSC (Order to Show Cause) hearing on their TRO (Temporary Restraining Order) motion.

*During the Democrats' campaign against retaining Judge Coury, Arizona's Law published this commentary decrying the effort.

**The full explanation from the Superior Court Public Information Officer Vincent Funari: "The case was assigned through iCIS, our Superior Court automated database system.  Nothing was done with the case until it received a case number, assigned by the Clerk of the Superior Court.  When the matter receives a case number, a judge is assigned through an automated process.  In this case, the automated process assigned the case to Judge Coury. After the Civil Presiding Judge was notified of the case and the assignment, Judge Coury was informed the case was assigned to him."

 "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 podcast.