A superior court judge on Tuesday left open the possibility of finding the Arizona Senate in contempt of court in the coming weeks.
A liberal watchdog group asked in a hearing to hold the Senate in contempt for not obtaining documents from Cyber Ninjas and its sub-vendors, per an earlier court order.
But Maricopa County Superior Court Judge Michael Kemp wasn’t ready to make that ruling, and he won’t until at least Dec. 2, when a contempt hearing is scheduled.
American Oversight in May sued the Arizona Senate for a bevy of records related to the election review of the 2020 general election in Maricopa County. While the Senate has made public some of its audit-related documents, records in possession of contractors and legislative privilege continue to be sticking points.
If Kemp does find the Senate in contempt, Senate attorney Kory Langhofer said he’s not worried about winning at the appellate court level, saying it was “ridiculous” to argue that holding the Senate in contempt would, in turn, compel Cyber Ninjas to hand over its records.
“(Senate President) Karen Fann cannot snap her fingers and get these documents; the problem is Cyber Ninjas,” Langhofer said, adding that American Oversight could sue the contractor itself.
However, American Oversight attorney Keith Beauchamp argued the Senate has not pursued every option to comply with the court order to produce records in Cyber Ninjas’ possession.
Beauchamp offered up some options, arguing the Senate could sue Cyber Ninjas for breaching its contract, reach out for assistance from the Sheriff’s Office, or refer the matter to the attorney general. Beauchamp also suggested the Senate withhold payment and threaten to take back what it’s already paid to the contractor.
But Beauchamp also said the burden is on the Senate, not American Oversight, to show it has taken all reasonable steps to comply with the court’s previous order.
“I have illustrated a number of steps that they could take that they haven’t yet,” Beauchamp said. “And frankly, the only steps they have taken, limited ones, have been because we are seeking contempt.”
He also suggested a more severe option.
“You could fine them,” he told Kemp. “You could put them in jail.”
But Langhofer said the options Beauchamp mentioned wouldn’t solve the problem.
Langhofer said anyone could refer the issue to the attorney general, including Beauchamp, and that he didn’t know of anyone being held in contempt for not contacting law enforcement, especially about an issue being publicly discussed in hearings such as that one. The Senate is already withholding $100,000 of the $150,000 it agreed to pay Cyber Ninjas, Langhofer said. He added that the court should not compel the Senate to sue Cyber Ninjas to avoid being found in contempt.
“I think that moves the court into an advocacy role, which is inappropriate,” Langhofer said.
The Senate notified Cyber Ninjas last week that it breached its contract by not complying with the court order and has also reached out to sub-vendors in an attempt to obtain responsive records. Langhofer said the sub-vendors have not responded, and Cyber Ninjas have continued to respond, essentially, with “pound sand.”
Cyber Ninjas is not a party in the American Oversight lawsuit, though they are a party in a separate public records lawsuit brought by the Arizona Republic. Cyber Ninjas maintains that it should not be a party in either case and that it is not bound by Kemp’s rulings in the American Oversight case.
In a friend of the court brief, Cyber Ninjas attorney Jack Wilenchik said the only record the Senate was entitled to was the Cyber Ninjas’ final audit report and that ruling otherwise would set a “terrifying precedent” for government contractors.
“CNI’s own records are not public records simply because they may relate to that report, which seems to be the contention here,” Wilenchik wrote.
During the hearing, Kemp also did not grant a stay on his Oct. 14 order compelling the Senate to release many of the documents it claimed fell under legislative privilege. The Senate asked for the stay to give it time to seek a stay or review from the Court of Appeals.
Kemp said he thought the Senate would be unlikely succeed on appeal and that the potential harm to the Senate of releasing documents did not outweigh the harm to American Oversight of not receiving them.
“This is a very important public policy issue with very strong public interest in this case,” Kemp said.
He scheduled a status conference at 10 a.m. on Nov. 29.
If the Senate does not dissuade the court from holding a contempt hearing, that will take place at 1:30 p.m. on Dec. 2.
“We want the documents; we don’t want a contempt hearing,” Beauchamp said. “But if we can’t get the documents, we ought to get a contempt hearing to find out why the Senate won’t do everything within its power (to get the records).”