BREAKING UPDATE: Kari Lake Acting Under "Undeniably False Pretenses" and Must Be Sanctioned, Fontes' & Hobbs' Attorneys Tell Supreme Court (READ Replies)

The Secretary of State's Office's and Katie Hobbs' attorneys filed their Replies with the Arizona Supreme Court yesterday and today, arguing that it is "essential" that Kari Lake and/or her attorneys be sanctioned for alleging "under undeniably false pretenses" that more than 35,000 ballots had been illegally injected into Maricopa County's election.

The Supreme Court had declined to consider most of Lake's appeal, and asked for the additional briefings about sanctions on that ballot-injection claim - which they said was not supported in the trial court's record. Lake's attorneys filed their Response last week, tripling down on the claim and asking the court to reconsider their entire appeal again. (Rules do not permit a Motion for Reconsideration of a denied Petition for Review.)

Both Replies covered similar ground. Hobbs (in her personal capacity as the candidate who defeated Lake by more than 17,000 votes) set out a chronology of the "moving target" of Lake's chain-of-custody claim, concluding:

"Lake would now have this Court believe that she has finally stumbled upon a bullseye, having uncovered an “undisputed fact” of 35,563 unaccounted-for ballots lurking in the trial court record that her counsel and three Arizona courts had somehow missed. But once again Lake’s claims are not supported by the evidence."

The Secretary of State's Reply was equally blunt: 

"Ms. Lake and her counsel have attempted to mislead this Court – and worse, the public at-large – by knowingly misstating the facts and evidence on appeal. This is not an instance of someone invoking their constitutional right to free speech. Ms. Lake and her counsel have tried to use our judiciary as a mechanism to topple an election under undeniably false pretenses. Such misconduct warrants stern rebuke from Arizona’s highest Court. Sanctions are not just appropriate, they are essential to ensure that all who seek judicial redress do so in good faith."

At the trial court level, Judge Peter Thompson did not sanction Lake's team for opposing attorneys' fees, but did order her to repay $33,040 in taxable costs. 

Both Replies also pointed out the Court Rule (22(f)) not allowing Motions for Reconsideration in this situation. 

The Supreme Court should rule on the sanctions motions shortly, and then send it back to Superior Court for Judge Thompson to re-rule on Motions to Dismiss the last remaining count dealing with alleged improper signature verification.

"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. 

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YESTERDAY'S* STATUTE OF THE DAY: History and Explanation of Arizona's RESIGN TO RUN Law (A.R.S. §38-296)

With Pinal County Sheriff Mark Lamb announcing yesterday that he will run for the Republican nomination for U.S. Senate - a seat currently held by Independent Kyrsten Sinema - there have been many questions about whether Arizona has a "resign-to-run" law and whether it applies to Lamb and his current office.

It is also a question that is likely to come up again has more people line up to run for the Senate or the U.S. House next year.

Yes, Arizona is one of only a few states to have such a law. And since I am old enough to remember some of the history and news surrounding it, I wanted to offer some explanation.

HISTORY: The law was actually initiated by the Arizona Legislature in 1979, and it actually *loosened* the then-existing law! The Legislature referred the proposed CONSTITUTIONAL AMENDMENT to the voters on the 1980 ballot. It was approved by a resounding 540,605-241,625 vote. 

The simple Constitutional Amendment is still on the books as passed, Article 22, Section 18: "Except during the final year of the term being served, no incumbent of a salaried elective office, whether holding by election or appointment, may offer himself for nomination or election to any salaried local, State or federal office."

It promptly tripped up a couple of Tucsonans who wanted to run for Congress in 1982. (I was a Tucson resident voting for the first time that year.) Court cases followed and neither Roy Laos nor Conrad Joyner went to Congress. However, Laos was actually removed from his Tucson City Council seat because he had violated the new law by running for Congress. (He was later elected to his old seat.)

In 1984, the Legislature amended the statute to more fully enact the voters' constitutional amendment, and it was a STRICT resign to run measure which was triggered by *either* the nomination paper OR a "formal public declaration of candidacy".

A nomination paper is filed the year of the election, with the necessary petition signatures. A public declaration occurs much earlier and is triggered when the candidate begins to raise money.

In 2013, the Legislature made a simple change to the statute, saying that the candidate is "NOT deemed...by making a formal declaration of candidacy."

Lamb filed both his Statement of Candidacy with the Federal Election Commission AND his Statement of Interest with the Arizona Secretary of State this week. NEITHER trigger the resign to run provision.

That is the way the statute (below) - and the constitutional provision - currently stand. It has fewer teeth than it did between 1984-2013, but still prevents someone from ditching their elected office in the first couple of years of a four-year term.

Therefore, since Lamb's term of office expires at the end of 2024 (or January 2025), and he will not file his nomination paper until before April 4, 2024, he is not risking being removed as Sheriff. Much as then-Secretary of State Katie Hobbs did not need to resign to run for Governor last year.

"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.

STATUTE OF THE DAY: Filling a Vacant Legislative Seat, Explained (A.R.S. §41-1202)

The Arizona House of Representatives today expelled Liz Harris (R-LD13).

This raises the question of how and when the seat will be filled - especially in light of the expulsions and reappointments of lawmakers in Tennessee in the news.

Arizona's law is slightly different, and is explained in A.R.S. §41-1202 (below).

Yes, Harris could get reappointed to the seat. However, that will take the district's Republican precinct committeepeople selecting her as one of three possibilities AND the Maricopa County Board of Supervisors selecting her from among those three. The first seems probable, but the second seems less likely.

(Also, it is worth noting that Harris won her seat in a mandated recount, and that the Republican she defeated - Julie Willoughby - has already filed her Statement of Interest to run in 2024.)

Back to the process, according to the statute:

Step 1: The House notifies  Secretary of State Adrian Fontes of the vacancy. 

Step 2: The Secretary of State notifies AZ GOP Chair Jeff DeWit of the vacancy. ("Immediately")

Step 3: DeWit has 3 business days to give written notice to the *elected* LD13 precinct committeepeople of a meeting to nominate a replacement.

Step 4: Because this vacancy is occurring in the middle of the legislative session, the meeting must be held within FIVE DAYS of Step 2.

Step 5: The PCs select THREE qualified candidates to nominate. Rules for proxies are set forth, and the qualifications. (LD13 is wholly inside Maricopa County, and there are more than 30 GOP PCs.)

Step 6: The AZGOP Chair "immediately" forwards the 3 nominees to the Maricopa County Board of Supervisors.

Step 7: The Board chooses the appointee to finish out the term - no special election. The statute does NOT give the Board a deadline, and does not even use the term "immediately". However, the MCBOS is Republican controlled and will want to send an extra Republican vote back to the House.

In the unlikely event that the LD13 GOP PCs fail to nominate three persons in the five days, the MCBOS would have to put together a citizens panel to come up with a list of three.

"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.

CLARIFICATIONS On Court Ruling Re: Suit Against LDS Church For Not Reporting Sexual Abuse Confession (READ Decision)

A very good article from the Associated Press about the Arizona Supreme Court's decision to not review a lower court decision about a Cochise County lawsuit against the LDS Church. Plaintiffs tried to conduct discovery about a former church member's confession that he had sexually abused his daughters. The Church asserted the "clergyman-penitent privilege" as the reason it did not report either the confession or their disciplinary proceeding to law enforcement.

CLARIFICATIONS: 

1) The AZ Supreme Court declined to review the Court of Appeals ruling. (Cochise Cty Superior Ct Judge Laura Cardinal had found the privilege waived. Appellate court disagreed).

2) Motions for Reconsideration of the Supreme Court's decision are not permitted. It is unclear how the case will proceed without discovery of the confession or the proceedings to excommunicate Adams (who later committed suicide).

Ct/App's Decision: 

"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. 

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BREAKING: Judge Sets May 16 Oral Argument On Abe Hamadeh's Motion for a New Trial, Mentions Other Outstanding Motions (READ Order)

Mohave County Superior Court Judge Lee Jantzen has - finally - set a May 16 date for oral arguments on Abe Hamadeh's Motion for a New Trial in his Election Contest lawsuit.

Arizona's Law reported last week on the relaxed pace of this case, in light of the Arizona Constitution's requirement that trial courts decide matters within 60 days of submission.

Jantzen explained today that he had completed "the emergency portion of this case... around Christmas", and he notes he has "continued to receive supplemental briefings on this motion (for New Trial), including as recently as last week." (In effect, he is blaming Hamadeh's periodic filings for the delay.)

Jantzen also granted the motion from State Senate President Warren Petersen and House Speaker Ben Toma to file a friend-of-the-court ("amicus") brief in the case. And, he noted he will not rule on sanctions and other compensation motions until after he resolves the new trial motion.

Hamadeh is claiming that a new trial should be granted because the Secretary of State's Office withheld information about the state-mandated recount that would have helped his case. Judge Jantzen dismissed it after a brief hearing in which Hamadeh's counsel acknowledged he did not have enough evidence to overturn Hamadeh's 280-vote loss to Kris Mayes.

(Side note: The Order also gave *participants* the password information to participate by Zoom in the May 16 hearing. Given past hearings in the other cases, this will likely have to be changed to avoid a debacle.)

Chandler attorney Tom Ryan shared his thoughts with Arizona's Law

: "Poor Judge Jantzen. He makes a clear cut ruling after Hamadeh’s attorney admits, in open court, on the record, he has no facts, no evidence, no case. And now he is inundated with post-trial motion after post-trial motion, and supplemental filing after supplemental filing. A reader of Judge Jantzen’s Order will get a clear sense of Judge Jantzen’s exasperation with the situation. Judge Jantzen probably sympathizes with Michael Corleone in the Godfather when he griped, “Just when I thought I was out, they pull me back in.” https://youtu.be/UPw-3e_pzqU And like Sysphus of Greek literature, poor Judge Jantzen seems to be condemned to an eternity of rolling the rock to near the top of the hill, only to watch it roll down to the bottom again. But unlike Sysphus, Judge Jantzen has tools at his disposal to stop this endless parade of post-election harassment. Let’s hope he does so."

"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: You Get a Bar Complaint!... And, Everybody Gets a Bar Complaint! Attorney Heath Accuses Others Of Hiding Case From Judge In Kari Lake Suit

The ice has not yet broken on the Santa Cruz, but it is mighty thin. And, that is where attorney-self-proclaimed-civil-rights-activist Ryan Heath finds himself today, after filing Bar Complaints against colleagues who are defending Kari Lake's Election Contest. (Attorneys for Maricopa County, the Secretary of State's Office, and now-Governor Katie Hobbs)

Heath claims they violated ethics rules about candor to the court by not citing a 1997 Court of Appeals opinion apparently setting aside election results for a Yuma County Board of Supervisors' election because mail-in ballots were not properly handled.

Besides the inherent issues of alleging that attorneys failed to cite a case that an opposing counsel - Heath has attempted to ally himself with Lake's side of the case - there is even legitimate question as to whether or not the Reyes v Cuming opinion was vacated by the Court of Appeals judges.

Arizona's Law has been working with both Heath and the courts to attempt to verify whether or not the opinion was vacated, and will update this article with any new information.

We have also asked Heath to send us a copy of his Complaint, and will also update with that. For now, here is his tweet and cover letter.

Bar complaints against defense attorneys in @KariLake v. @katiehobbs have been filed.@AbrahamHamadeh @JenWEsq @Rach_IC @AbeWarRoom @KariLakeWarRoom

See https://t.co/oa9w0yS6yV for more on this case. pic.twitter.com/jVyH9pdmpZ

— Ryan (@Ryan_L_Heath) April 7, 2023

Bar complaints have previously been filed against attorneys who have represented Lake and others in what the complainants say are "seeking to overturn legitimate elections".

"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, TRIPLING DOWN: Don't Sanction Us Because Lake "Honestly Believes" There Were 35k+ Injected Ballots - Even If Not In the Record (READ Response/Motion)

Kari Lake's attorneys are not bothered that the Arizona Supreme Court flatly told them that there is no evidence in the record that more than 35,000 ballots were illegally injected into Maricopa County's November election. They tripled down on that allegation in last night's Response to Motions for Sanctions, and they are asking the Justices to reconsider their refusal to consider the appeal of the dismissals of the chain-of-custody count. (Such a Motion to Reconsider is clearly disallowed by court rules.)

Lake's attorneys complain that the opposing counsel did not try to rebut the unsupported claim in their sanctions motions. "Nor can anyone doubt that Lake honestly believes that electoral misconduct and illegal votes determined the outcome of the 2022 gubernatorial election. As such, sanctions are not appropriate."

In their March 22 Order, the Supreme Court asked the parties to only address the "unaccounted for ballots" claims in yesterday's Response and next weeks' Replies. 

"The parties shall address as a basis for sanctions only Petitioner’s factual claims in her Petition for Review (i.e., that the Court of Appeals should have considered “the undisputed fact that 35,563 unaccounted for ballots were added to the total of ballots at a third party processing facility”), and not legal arguments (i.e., pertaining to the burden of proof or purported conflict in the lower courts). The record does not reflect that 35,563 unaccounted ballots were added to the total count." (emphasis added)

Lake's Response then goes into detail as to why they honestly believe ballots were injected - explanations that were (or should have been) in the Petition for Review that the Court considered.

HOWEVER, long-standing court rules PROHIBIT Lake from filing a Motion for Reconsideration. Once the Supreme Court denies a Petition for Review, that is the final word. (Rule 22(f) of the Arizona Rules of Civil Appellate Procedure) The Order denied review of the chain of custody issue.

Additionally, that Lake's attorneys are repeating arguments is significant because Lake also asks the Justices to reconsider their declining to accept the appeal from the trial court's dismissal and the Court of Appeals' agreement. The Supreme Court clearly had reviewed the record before making their determination that the injected ballots argument was unsupported; the Justices would not want to review new arguments being made now, even if a Motion for Reconsideration was permitted.

The defendants have until April 12 to file their Replies to this new filing. Meanwhile, the Superior Court judge is waiting for permission from the Supreme Court before re-addressing the Motions to Dismiss the signature verification issue.

"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: Cochise County Socked For $36k In Attys Fees/Costs For Delaying Certification of Election Results Last November (READ Order)

Last November, two of Cochise County's (three) Supervisors decided to delay certifying the election results. Then-Secretary of State Katie Hobbs and the Arizona Alliance of Retired Americans went to court to force the certification (of the Lake-leaning) county's results.

Tonight, Superior Court Judge Casey McGinley ruled that Cochise County must repay approximately $36,000 in attorneys' fees and costs to the plaintiffs. It is not yet clear whether the award is only to be collected from Cochise County itself, the two Supervisors personally for resisting certification, , or whether they are jointly responsible for the $36,000.*

It is important to note that these are different than "sanctions" imposed as a punishment for filing a groundless lawsuit. Judge McGinley cited the two different Arizona statutes that call for the AARA and the Secretary of State to be repaid their attorneys' fees and court costs if successful in this mandamus action.

McCauley argued that the court never had to issue an "enforceable order" against Cochise County and therefore the plaintiffs were not "prevailing parties". The judge denied that argument.

The two Supervisors and County Recorder David Stevens had previously planned to try to hand count all of the ballots, and also expressed concern with the election process in Maricopa County.

*The uncertainty exists because the Order specifically notes that Supervisor Ann English is *not* subject to the award: "Such costs and fees are not assessed against Defendant English, as she did not oppose the relief sought by Plaintiffs, and in fact joined in the request that the Court issue the writ of mandamus."

"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.

ICE IS HEATING UP: Phoenix Coyotes Development Group Move to INTERVENE in Phoenix's Lawsuit against Tempe.

Channel 12 reported today that the Phoenix Coyotes' development arm (Bluebird) filed a $2.3B notice of claim against the City of Phoenix. Arizona's Law can also add that the Coyotes - through Bluebird - have filed to INTERVENE in the lawsuit Phoenix filed last week against the City of Tempe.

Eric Spencer, former Arizona Elections Director who is now at Snell & Wilmer, is representing Bluebird Development.

Judge Katherine Cooper has been assigned to the case. No hearings have yet been set.

"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.

DECISION WEEK Begins For Judge In Languishing Abe Hamadeh Election Contest --Arizona Constitution

Abe Hamadeh, the unsuccessful candidate in an extremely close election for Arizona Attorney General, should finally learn the outcome of his January 4 Motion for a New Trial in his Election Contest lawsuit.

The Arizona Constitution requires Superior Court judges to decide any matter within 60 days of it being submitted to him or her. That deadline pops up for Mohave County Judge Lee Jantzen on several outstanding matters over the next few days.

Here are those Motions:

a) Motion for New Trial (filed by Hamadeh 1/4). Reply filed 2/6.

b) Motion for Attorneys Fees (filed by successful candidate Kris Mayes 1/3). Reply filed 2/3.

c) Motion to compensate ballot inspectors (filed by Navajo County 1/4). Reply filed 2/6.

d) Petersen/Toma Motion to file amicus (filed 1/25). Response filed 2/2 (no reply filed).

e) Motion For An Order... (filed 12/28). Response filed 12/29 (no reply filed).

When the 60 day period begins to run the day after a Reply is filed or after the deadline for a reply passes, the deadline for the attorneys' fees motion hits today and the others follow in quick succession. 

It would appear that the time for a decision on Motion (e) has passed, and that the judge may have simply ignored it. However, that Motion is in a different category, because it notes that there was not a signed, appealable Order in the case. (There still is not.)

In addition to the "speedy disposition" provision in the Constitution, the Election Contest statutes also add urgency to the judge's decisions. According to A.R.S. §16-676(B), "the court shall continue in session to hear and determine all issues arising in contested elections."

The constitutional provision also calls for the Arizona Supreme Court to pass a rule to "provide for the speedy disposition of all matters not decided within such period." The Court's rule only calls for the clerk of each Superior Court to file a report at the end of each quarter - in this case, June 30 - listing undecided matters and which judge is responsible for each.*

Jantzen ruled against Hamadeh after an anti-climactic evidentiary hearing, where even Hamadeh's counsel acknowledged that they had not been able to prove their case after an inspection of some ballots in Maricopa County. After a statutory recount, Mayes won by less than 300 votes.

Hamadeh has spent this long quiet period adding attorneys to his legal team - potentially for either a new trial or an appeal. And they recently nudged the judge when they filed a supplement explaining why the Arizona Supreme Court's Order in Kari Lake's Election Contest supports their request for a new trial. (Defendants then explained why it should not.) Within the week, Hamadeh should know more about where they will be deployed.

(Arizona's Law has been actively monitoring this case, and has been instructed by Mohave County Superior Court and the Clerk's Office that any rulings will be promptly posted on their web page. As of this publishing, no new rulings have been entered.)

* Deeper into the weeds, it is an open discussion as to whether or not this rule actually abides by the mandate in the Constitution.

"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.