Arizona Attorney General | Arizona Capitol Times

AG asks Arizona Supreme Court to block new rideshare fees

FILE - In this Dec. 18, 2019, file photo passengers find their rides at the Ride Share point as they exit Phoenix Sky Harbor International Airport in Phoenix. A new $4 fee on Uber and Lyft rides to and from the Phoenix airport is "very likely" unconstitutional, the state attorney general said Thursday, Jan. 16, 2020, upping the ante in the showdown that has led the ride-hailing giants to threaten to abandon the airport service. (AP Photo/Ross D. Franklin, File) — FILE – In this Dec. 18, 2019, file photo passengers find their rides at the Ride Share point as they exit Phoenix Sky Harbor International Airport in Phoenix. A new $4 fee on Uber and Lyft rides to and from the Phoenix airport is “very likely” unconstitutional, the state attorney general said Thursday, Jan. 16, 2020, upping the ante in the showdown that has led the ride-hailing giants to threaten to abandon the airport service. (AP Photo/Ross D. Franklin, File)

The Arizona Attorney General’s Office has filed a special action with the state Supreme Court seeking to overturn the rideshare ordinance at Phoenix Sky Harbor International Airport.

State lawyers also filed a request January 21 with Arizona’s high court to stop the fees from going into effect on February 1.

Meanwhile, Uber said January 22 it will stop serving Sky Harbor at the end of the day on January 31 if the fee isn’t repealed or blocked by the court. Lyft has also threatened to leave the airport but hasn’t announced a date.

Attorney General Mark Brnovich says a new $4 fee on Uber and Lyft rides to and from the Phoenix airport is “very likely” unconstitutional.

Brnovich says the fees approved by the Phoenix City Council probably violated a 2018 ballot measure prohibiting higher taxes on services.

By law, Phoenix could lose its share of state revenue — one-third of its general fund budget — if the fee hike is found to be illegal and isn’t repealed by the city.

Lawyers for the city say the higher fees are not taxes on services, but rather permissible charges for businesses to use city-owned Sky Harbor, which is one of the largest U.S. airports serving some 44 million passengers a year.

The city argues the fees are akin to rent and landing fees charged to restaurants and airlines.

AG questions cities and towns about opposition to Prop 127

Six Arizona counties and towns appear to have broken the law by adopting resolutions opposing a ballot measure to boost the use of renewable energy in the state, according to letters sent Thursday by the Attorney General’s Office.

The letters state that evidence provided in a complaint by Rep. Ken Clark, D-Phoenix “appear to show” that officials in the six counties and towns violated an explicit ban on the use of public resources to influence elections.

Those six municipalities — the Chino Valley Town Council, the Pinetop-Lakeside Town Council, the Snowflake Town Council, and the Gila, Greenlee and Navajo County boards of supervisors — adopted resolutions opposing Proposition 127, which would constitutionally require most Arizona utility providers to generate 50 percent of their power from renewable energy sources by 2030.

The complaint followed a report by the Energy and Policy Institute, a pro-renewable energy organization, that detailed a campaign by Arizona Public Service and its backers to urge counties and towns across Arizona to pass similar resolutions.

Gila, Greenlee and Navajo Counties, and the town of Snowflake, adopted resolutions that explicitly “urge residents to vote no on the initiative.”

Pinetop officials, apparently wary of violating state law, skirted the issue by adopting a resolution opposing the initiative but omitting language explicitly advocating residents to vote yes or no, according to the report by the Energy and Policy Institute.

Those resolutions and others were later touted by Arizonans for Affordable Electricity, the political action committee funded by APS’s parent company.

Citing the Institute’s reporting, Clark wrote to Attorney General Mark Brnovich on Oct. 23, saying that officials with APS “have been badgering county and local officials and their staff with requests to adopt a formal resolution opposing Prop 127… by adopting resolutions opposing the ballot measure, those jurisdictions have used taxpayer dollars to weigh in on a political fight, which is clearly against state laws.”

State attorneys seem to agree, as the letters sent to those six counties and towns request information about the resolutions adopted by the municipalities, and “reasons why the (county or town’s) actions should not be considered a violation of ARS 11-410.”

The letters, sent by the Attorney General’s Government Accountability, Special Litigation and Antitrust section, request a response by Nov. 8, two days after the General Election.

If found in violation of the law, the respective elected officials in the counties and towns, and perhaps some county and town employees, could be assessed civil penalties of up to $5,000, the letters warn.

Matthew Benson, spokesman for Arizonans for Affordable Electricity, said the law is being twisted in this instance by supporters of the failing Clean Energy for a Healthy Arizona campaign. The ban on use of public resources in electioneering is intended to prevent elected officials from spending public dollars in an effort to advance a political campaign, he said.

There was no public expense to the taxpayers when the local governing boards passed the resolutions. The elected officials from these localities were just trying to inform their constituents on an issue that would affect their community, Benson said.

“This is a complete perversion of what the law is intended to prevent,” he said.

The municipalities aren’t the only ones under the Attorney General’s scrutiny. Corporation Commissioner Andy Tobin was sent a similar letter questioning a press release Tobin released with a statement in his official capacity as a commissioner opposing Prop. 127.

Kory Langhofer, an elections attorney, said the email sent via the Corporation Commission’s formal communications channels likely used a trivial amount of public resources, and wouldn’t warrant any action under law.

Clark’s complaint urged the AG’s Office to investigate not just the counties and towns, but also APS officials “who put pressure on local public employees to use public resources to promote the private interests of APS regarding Prop. 127 in violation of state law.”

Ryan Anderson, a spokesman for the Attorney General’s Office, said the letters are the first step in a fact finding, and declined to speculate if state attorneys would pursue any action against APS.

As for the timing of the allowable time for response — county and town officials don’t have to respond until after the election — Anderson said two weeks notice is a standard time given to individuals subject to their investigations.

Staff writer Carmen Forman contributed to this report.

This story was updated from it’s original version to include information about a similar focus by the Attorney General’s Office on Arizona Corporation Commission member Andy Tobin.

AG takes no bail law to U.S. Supreme Court

In this Oct. 5, 2015 file photo, the Supreme Court is seen in Washington. The court’s June 21 ruling allows states to enforce laws requiring many out-of-state businesses to collect taxes on sales made to local residents. PHOTO BY CAROLYN KASTER/THE ASSOCIATED PRESS — In this Oct. 5, 2015 file photo, the Supreme Court is seen in Washington. PHOTO BY CAROLYN KASTER/THE ASSOCIATED PRESS

The state Attorney General’s Office is asking the U.S. Supreme Court to reinstate a voter-approved provision of the Arizona Constitution which allows accused rapists to be held without bail while awaiting trial.

In legal papers filed in Washington, Assistant Attorney General Rusty Crandell argued that the state’s high court – or at least a majority of the justices here – ignored legal precedent in concluding earlier this year that pretrial detention without bail is permissible only when there is a “legitimate and compelling” purpose and that restriction is narrowly focused. Justice Ann Scott Timmer, writing for the majority, said that means defendants are constitutionally entitled to be released pending trial when there is no showing they will be a danger to the community.

But Crandell said that the crime of rape is “a uniquely horrific act” and there is a “frightening and high risk” that sex offenders will reoffend.

He also said that the law — the one the Arizona justices overturned — has procedural safeguards. That includes requiring prosecutors to prove to a judge that “the proof is evident or the presumption great” that the defendant did, in fact, commit the crime.

And Crandell took a slap at the justices who voted to void the law.

He said that courts should invalidate statutes only when necessary to comply with the Constitution “while leaving in place as much of the legislature’s work as possible.”

“The Arizona Supreme Court has made a practice of doing the opposite,” Crandell told the nation’s high court.

Arizona Supreme Court Justice Ann Scott Timmer (Photo by Ellen O'Brien/Arizona Capitol Times) — Arizona Supreme Court Justice Ann Scott Timmer (Photo by Ellen O’Brien/Arizona Capitol Times)

Prior to 2002, it was presumed that people charged with a crime were entitled to bail. There were only a few exceptions, like those for which the death penalty could be imposed, offenses committed while someone already was out on bail, and felonies where the person charged poses a substantial danger to others and no conditions of release could assure safety.

The 2002 voter-approved state constitutional amendment added sex offenses to that list.

This case involves Guy Goodman who was charged with sexually assaulting a victim.

At a pretrial hearing a police officer testified that Goodwin, a guest in the victim’s home after a night of socializing, molested her while she was sleeping. The officer also said that Goodman, when confronted with DNA evidence, confirmed the sexual assault.

A Maricopa County court commissioner said while there was evidence Goodman committed the offense prosecutors failed to show he posed a “substantial danger to other persons in the community.” At least part of that was based on the fact there was no evidence he had committed similar crimes in the seven years between the incident and his arrest or threatened the victim.

Instead, the commissioner set bail at $70,000, requiring electronic monitoring of his movements, and imposed other conditions like not possessing any weapons.

The state Court of Appeals overturned that decision. But in a 4-3 ruling, the Supreme Court said the 2002 no-bail constitutional provision could not stand.

Timmer, in writing the majority opinion, said one problem with the 2002 ballot measure is it did not provide any procedures to determine whether someone charged with rape would pose a danger if allowed out on bail.

Crandell, in his pleadings to the U.S. Supreme Court, said Timmer and her three colleagues were off base in making that a requirement for prosecutors to prove.

“This court has repeatedly recognized that the government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest,” he wrote. And Crandell took particular aim at the Arizona justices for saying prosecutors have to show there is a danger to the community.

“Unfortunately, there is no way to predict with confidence when or whether a particular sex offender will reoffend,” he said. And Crandell said in areas like these which are “fraught with medical and scientific uncertainties” courts should not rewrite laws but instead “afford legislatures the widest latitude.”

If nothing else, Crandell said, the Arizona Supreme Court should have limited its ruling to the Goodman case and not voided the voter-approved law entirely.

“Even assuming for the sake of argument that there exist actions constituting sexual assault that do not implicate a sufficient community interest to overcome an arrestee’s interest in obtaining bail, those few circumstances are no basis for invalidating a statute in toto,” he told the justices.

“The Constitution is not so blunt an instrument,” Crandell continued. “If anything, it calls for judicial restraint in invalidating the work of the legislative branch or, as here, the people acting through direct democracy.”

The court has not decided whether to hear the state’s appeal.

AG takes Tempe to court over lease agreements with developers

The Attorney General’s Office wants the Arizona Supreme Court to weigh in on whether property tax incentives in lease agreements that the City of Tempe signed with several developers violate state law.

Specifically, the attorney general is asking the court to determine whether it was illegal for the city council to adopt resolutions that apply to “any” future developments in the city that are being offered lower tax rates under Government Property Lease Excise Taxes (GPLET) rates that the Legislature eliminated in 2010.

GPLETs are incentives that allows municipal governments to lease publicly-owned properties to developers at a lower tax rate. The rates were updated in 2010, but under state law, projects can be grandfathered in under the old, lower GPLET rates if the development agreement or ordinance was adopted by June 1, 2010, when the old rates were eliminated.

However, the AG’s office argued in a petition for special action filed May 24 that in order to qualify for the old GPLET rates, a development agreement, ordinance or resolution must have been signed before the deadline and must be lease- or property-specific.

Assistant Attorney General Evan Daniels argued in writing to the court that the city’s development agreement with the developer of the new Bank of the West branch in Tempe likely violates state law because the ordinance adopted by the Tempe City Council on May 20, 2010, did not identify what site was being approved for a future GPLET lease. Even though the ordinance was adopted prior to changes to the rates, the AG’s Office argued that the project likely could not be grandfathered in under the old rates because the ordinance wasn’t tied to a specific site.

The issue with the lease agreement was first brought up in February, after Rep. Vince Leach, R-Tucson, filed an SB1487 complaint asking Attorney General Mark Brnovich to investigate whether Tempe broke the law in signing lease agreements with the developer of the Graduate Hotel and the Bank of the West. The AG’s Office found that the city’s agreement with the hotel developer did not violate state law, while the agreement with the regional bank branch might.

AG spokesman Ryan Anderson said Tempe had 30 days after the AG’s office found that the lease may violate state law to bring the contract into compliance, but the city failed to make any changes to the contract.

“The Attorney General’s Office and Tempe worked diligently to find possible resolutions, but were unable to come to a solution,” Anderson said. “We filed the special action to ask the Supreme Court to prevent the city from illegal use of the grandfathered rate on any future leases.”

In a May 25 written statement, Tempe said the ordinance complied with state law. The city added that the agreement was eight years old, was approved by the Department of Revenue and wasn’t challenged by the Arizona Auditor General in 2015 during the state’s audit process.

“So, it came as some surprise that at the request of one state legislator, Tempe is now in the position of having to defend this eight-year-old resolution after the Arizona Attorney General’s Office determined that such treatment may violate state law,” the statement said. “It is our hope that this matter can be resolved in the very near future, without substantial time and expense.”

In addition to the Bank of the West lease agreement, the AG’s Office also found two other lease agreements that may violate state law during the course of the SB1487 investigation, Anderson said.

The lease agreements, one with the developer of a mixed-use development featuring 286 apartments and a Whole Foods Market and another with Northern Trust, have been signed but not executed yet. Both developers were offered lower GPLET rates under the old rates, and Anderson said Northern Trust is expected to save approximately $7.3 million over the course of it’s 20-year lease.

Anderson said the AG’s Office believes the special action freezes any further action on the two new properties until the court provides further direction.

Under SB1487, the AG’s Office is required to file a special action with the Supreme Court if the city, town or county doesn’t make an effort to bring the ordinance into compliance if the agency found that an ordinance may violate state law. The Supreme Court must then decide whether or not the ordinance violates state law or the Arizona Constitution.

Anderson said while the court doesn’t have a timeline for when it must make a decision, the court is required to make the case a top priority and hold a hearing soon

He added that given that the developments in question are all in different stages, the court could decide to “‘split the baby’ and treat the various agreements differently.” He said the court could invalidate the leases if it finds that the agreements violate state law.

“At the very least, we are hoping the court will provide clarity and will prevent Tempe and other cities from getting cute and side-stepping important statutory protections intended to avoid the lucrative developer giveaways the Legislature acted to curtail post June 1, 2010,” he said.

Leach, who filed the original SB1487 complaint, lauded Brnovich’s decision.

“I applaud Attorney General Brnovich for conducting a thorough and fair investigation and filing this special action,” Leach said in a statement. “It’s unfortunate that the City of Tempe failed to take action when I alerted them to these violations last year – a costly investigation and litigation could have been avoided.”

AG to challenge court’s order to release man convicted in child slaying

A federal appeals court has ordered the state to release a man convicted of the 1994 death of a 4-year-old in Tucson.

In a unanimous opinion the judges said there was evidence that the attorneys assigned to Barry Lee Jones did not investigate evidence which suggested that the time line in the beating, sexual assault and death of Rachel Gray did not occur as prosecutors told the jury. And Judge Richard Clifton, a President George W. Bush appointee writing for the three-judge panel of the 9th Circuit Court of Appeals, concluded that ineffective assistance of Jones’ counsel resulted in a guilty verdict and a death sentence that might not have otherwise been imposed.

In the Nov. 29 order the judges ordered Jones released unless the state intends to retry him.

But Ryan Anderson, a spokesman for the Attorney General’s Office, said it may not come to that. He said the state intends to seek review by the full 9th Circuit and, if necessary, take the case to the U.S. Supreme Court.

And if that fails, Anderson said prosecutors will take the case back to court for a new trial.

According to court records, Jones was sharing his trailer on East Benson Highway near South Alvernon Way with his girlfriend Angela Gray, his own daughter and his girlfriend’s three children, ages 4, 11 and 14.

Early on the morning of May 2, 1994, Jones drove Angela and Rachel, the 4-year-old, to Kino Community Hospital where she was pronounced dead on arrival.

The cause was a laceration in her bowel due to blunt abdominal trauma. She also had other injuries, including a scalp laceration and evidence of sexual assault.

Jones, 36 at the time, was arrested the same day and charged with murder, sexual assault and child abuse. The jury found him guilty of all charges.

Significantly, jurors accepted the prosecution’s argument that all the events occurred within a two-hour window, which made Jones guilty of “felony murder.” That made him eligible for the death penalty and which the judge ultimately imposed.

Clifton, however, said the evidence presented about that timeline was not that clear.

More to the point, the appellate judge said that, based on testimony from others, Jones’ attorneys should have done further investigation. And he said there was a “reasonable probability” that had the lawyers challenged the timeline that the jurors might have reached a contrary result.

For example, Clifton noted, a doctor who testified at Jones’ trial later said that the abdominal injuries most likely occurred prior to May 1 and that he would have testified to that at the trial had the defense attorney asked the right questions.

It also turned out there was conflicting evidence about when the scalp injury occurred. And a doctor said that injuries as a result of a sexual assault predated the abdominal injury and may even have predated when Jones began living with Rachel and her family.

There also was inconsistent evidence between what was told to the jury in the Jones case compared with what was told to jurors in a separate trial of the girlfriend who was convicted of child abuse by criminal negligence and sentenced to 8.75 years in prison.

“`The evidence presented at the (post-trial) hearings undermines considerably the confidence in the outcome of the trial court proceedings,” Clifton wrote.

Arizona appeals decision to strike law banning state contractors from boycotting Israel

Attorneys for the state want a federal appeals court to allow it to deny public contracts to those who boycott Israel, saying Arizona has a legitimate interest in denying support to the Palestine Liberation Army and its “unsavory — and frequently murderous — ends.”

In new legal briefs Monday, Drew Ensign, an assistant attorney general, said Arizonans are free to express their views about the policies of Israel. They can contribute to candidates who would change U.S. policy toward that country and even can urge others to boycott Israel and firms that do business there.

But what they cannot do, Ensign told the 9th Circuit Court of Appeals, is participate in boycotts themselves if they also want to do business with the state.

The new filings come after U.S. District Court Judge Diane Humetewa voided a 2016 law that requires those who seek public contracts to promise not to engage in such boycotts. She said that illegally amounted to the state using its economic power to deny people the right to speak out and act on their personal beliefs.

Last week the appellate judges denied a request by Ensign to lift the injunction blocking enforcement of the law while they consider Ensign’s arguments. And now the state is sending notices to all of its agencies informing them that they cannot refuse to award a contract to anyone simply because that firm refuses to sign an agreement not to participate in the boycott — at least not unless or until a court upholds the law.

The law spells out that public agencies cannot enter into contracts with any company unless the deal

includes “written certification that the company is not currently engaged in, and agrees for the duration of the contract to not engage in, a boycott of Israel.”

Proponents said they wanted to use the economic strength of the state to undermine the international Boycott, Divest and Sanctions movement.

The idea behind the BDS movement is to get people to boycott companies that do business with Israel to pressure that country to change its policies ranging from settlements on the West Bank to claims of apartheid. Some targeted firms with an Arizona presence are Boeing and Caterpillar.

Humetewa, in her earlier ruling, said Flagstaff attorney Mik Jordahl has a First Amendment right to participate in a boycott, saying the U.S. Constitution protects “activities undertaken to achieve social, political or economic ends.”

Ensign, in Monday’s filings, said the First Amendment protects actions that are “inherently expressive,” designed to send a message. But he said that’s not the case here.

He said Jordahl, who has a contract with Coconino County, wants to be free to refuse to buy a printer for his office from Hewlett-Packard because that company aids Israel in its security work.

But Ensign said that if Jordahl decides to buy a printer from another company, it hardly conveys the message that he is protesting Israeli government policy. Instead, he told the court, it might simply be interpreted as Jordahl liked the features and price of the other printer.

Ensign told the appellate judges even if the content is expressive, the state still has “compelling interests in prohibiting discrimination and regulating commerce.” And in this case, Ensign said, the 2016 law simply aligns the awarding of state contracts – and state dollars – with the state’s public policy objectives and values.

“Israel is one of the few precious democracies in the Middle East and an important trading partner and ally of the United States,” Ensign wrote. “The state has acted to prevent commerce within the state from being used as an economic weapon against Israel and Israelis.”

Ensign said this is underlined by the fact that the effect of the BDS movement is to strengthen the hand of the Palestine Liberation Organization “which pays cash stipends to the families of terrorists.”

“The First Amendment does not leave the state powerless to prevent commerce from furthering such unsavory — and frequently murderous — ends,” he wrote.

And Ensign said the law says that those who get government contracts cannot engage in discriminatory practices.

“To refuse to do business with individuals and entities on the basis of their nationality is to discriminate on the basis of nationality/national origin,” he wrote. “Boycotts against Israel and Israelis are national-origin discrimination under any reasonable construction of that term, just as blanket refusals to conduct any business with Canadians, Mexicans, Belgians would be.”

Ensign also said the 2016 law also reflects the reality that a boycott against Israel disproportionately impacts Jews “and such boycotts often have anti-Semitic motivations.”

But the question of whether the law is really a form of antisemitism was questioned at the time of its approval by state Sen. Steve Farley, D-Tucson.

He said the measure was built on the flawed assumption that all Israelis and all Jews support that country’s current policies. But being an “active, free-market democracy,” he said people think different ways.

Farley specifically cited Jewish Voice for Peace which has a mission of seeking an end to Israeli occupation of the West Bank, Gaza Strip and East Jerusalem.

“It’s ironic that we are putting together the power of the state to coerce a business to not do business with someone they may want to do business with because we’ve decided politically that it’s not something we think is politically correct,” he said. “And we do this in the guise of a democracy defending another democracy.”

No date has been set for the appellate judges to hear the state’s arguments.

But Ryan Anderson, a spokesman for the Attorney General’s Office, said if the 9th Circuit refuses to reinstate the law he expects the case to go to the U.S. Supreme Court. Anderson said about 30 states have similar laws that could be affected.

Attorney general says counties can maintain own voter rolls

Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)

Arizona Attorney General Mark Brnovich says county election officials can maintain separate voter databases but are legally required to send voter information to the secretary of state’s office.

Brnovich also said in an opinion released Monday that Secretary of State Michele Reagan can’t refer public records requests or legal subpoenas to counties since she also maintains the voter rolls.

The opinion also clarified what voter registration information county recorders are required to provide to Reagan’s office. Solicitor General Dominic Draye wrote that includes everything, and immediately.

He said that under federal and state law, all 15 recorders must provide names and addresses, cancelled and rejected registrations and records detailing early voting and provisional ballots.

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Attorney General’s Tucson office disqualified from murder case

The Arizona Supreme Court has disqualified all the lawyers working at the Tucson office of the state attorney general from handling a new trial in a 21-year-old murder case.

In a unanimous decision Monday, the justices said there is reason to believe that Darren Irving Goldin could not get a fair trial because one of the lawyers at that office there had improper conversations with a court-appointed confidential intermediary. That lawyer, Richard Wintory, eventually left the attorney general’s office and was later suspended from the practice of law for 90 days.

But attorneys for Goldin argued — and the high court agreed — that there was no way to tell what Wintory had shared with other lawyers at the office. And if nothing else, they said it cast a shadow on the ability of Goldin to get a fair trial.

None of this means Goldin is off the hook.

It simply means that the trial will have to be handled by someone other than the lawyers working for Attorney General Mark Brnovich out of his Tucson office. Anne Elsberry of the Pima County Legal Defender’s Office said that could be a different unit of the Attorney General’s Office or farmed out to a county attorney.

There was no immediate response from the Attorney General’s Office.

Goldin was indicted in 2010 on the decade-old death of Kevin David Estep, a fellow drug dealer. Prosecutors initially intended to seek the death penalty.

The court appointed Mary Fornino as confidential intermediary to see if there are any factors that would weigh against execution. And that, in turn, was complicated by the fact that Goldin’s biological mother — he was adopted as an infant — refused to speak with her.

That resulted in a conversation between Wintory and Fornino, one that was not supposed to occur and one he did not initially disclose. He then was removed from the case.

At that point the Attorney General’s office offered Goldin a plea deal which he took. But Elsbery said that was vacated when he didn’t get the terms he was promised.

That set the stage for a new trial — and Goldin’s motion to disqualify anyone who worked at the same office as Wintory.

Pima County Superior Court Judge James Marner agreed to the request, saying there was no way to know what conversations Wintory had with other prosecutors and whether that tainted the case.

“I’m sure there’s a more eloquent way of putting this, but it just looks bad,” Marner said.

The Court of Appeals disagreed, saying that Marner did not consider the proper factors before making a decision.

But Justice Clint Bolick, writing for the unanimous high court, said the trial judge had legitimate reasons for his decision.

“Justice and the law must rest upon the complete confidence of the thinking public,” he wrote, quoting from earlier court rulings. “And to do so they must avoid even the appearance of impropriety.”

And this case, Bolick said, involved more than just some bad judgment. Instead, it was actual misconduct.

“The misconduct was so significant that it resulted in severe discipline,” he wrote. “The appearance of impropriety was grounded not in a mere perception of wrongdoing but an actual finding of misconduct with no ability to determine the scope of its impact.”

Bolick also noted that the misconduct occurred over a period of time.

“We do know which other staff members in the Tucson office, if any, were privy to the improperly obtained information,” he said. Therefore, he said, “it was within the trial court’s discretion to disqualify the entire office.”

Audit of seized funds skewers former Pinal County lawmen

In this 2016 photo, former Pinal County Sheriff Paul Babeu speaks at a rally in Phoenix. (Photo by Gage Skidmore/Flickr)

The Arizona Auditor General on August 20 released a report that detailed how former Pinal County Sheriff Paul Babeu and Pinal County Attorney Lando Voyles misused asset forfeiture funds for years.

An audit of Pinal County’s use of funds seized under Arizona’s asset forfeiture laws from January 2013 through December 2016 made two key determinations. The first was that former Pinal County Attorney Lando Voyles did not adhere to established procedures for awarding funds to community organizations or to ensure those groups used the money for authorized purposes.

Additionally, former Pinal County Sheriff Paul Babeu and some of his former employees were found to have violated conflict-of-interest policies. They participated in awarding community outreach dollars to the Arizona Public Safety Foundation without disclosing their level of control over the organization or how those funds were subsequently used.

Asset forfeiture laws allow police and prosecutors to take money and property linked to a crime and use it to supplement their budgets. Asset forfeiture funds distributed to community groups are only authorized for purposes of substance abuse and gang prevention or education.

According to the audit, nearly $2.4 million in awards to community groups were approved by Voyles. The Arizona Public Safety Foundation received 31 awards totaling about $663,000, the largest amount given to any single organization. Of that total, Babeu or his subordinates controlled the disbursement of about $206,000, using about $152,000 specifically for unauthorized purposes. About $88,000 went to Babeu’s “morale, welfare, and recreation program,” including about $12,000 for a Diamondbacks baseball game and nearly $3,000 on 500 “memorial coins” bearing Babeu’s name. He first purchased the coins with his personal credit card, then received a reimbursement from the foundation.

PinalCentral was the first to report on the auditor general’s report. In statements issued to the local paper, Babeu and Voyles did not take responsibility for the findings. Rather, Voyles insisted “audits always recommend improvements,” and Babeu said every expenditure was approved or denied by the county attorney or attorney general.

The findings validated the long foregone conclusions of at least one Pinal County official.

Pinal County Supervisor Steve Miller always had his suspicions – and stacks of documentation to solidify them – about the use of the funds under Babeu and Voyles.

“I wouldn’t say I told you so,” Miller said. “I just would say I knew they weren’t doing it the right way.”

He recounted how he recently plunked several expandable files thick with documents on his desk. That was what he was able to collect, he told reporters at his office, “and I didn’t get it all.”

Now, Babeu and Voyles could face more than an unflattering audit.

Miller fears Babeu will not face consequences – that he could simply say Voyles gave him the money he asked for and be done with it. But Miller certainly thinks Voyles deservers whatever may come.

He said Voyles should be disbarred, but he’ll leave that determination for “more sophisticated legal minds” than he. The findings were submitted to the state Attorney General’s Office for further review.

‘Bad apples’

Spokesman Ryan Anderson said the office is reviewing the auditor’s report now to determine what, if anything, comes next.

But whether anything criminal occurred, the findings certainly look bad.

“Unfortunately, a few bad actions by a few bad apples really casts a negative shadow on the rest of law enforcement that is out there doing this by the book,” Anderson said.

The headlines that have come out of Pinal County with regard to the funds paint the picture of a worst-case scenario, one critics brought to the state Capitol.

In September 2016, the Arizona Public Safety Foundation received the first of two reported subpoenas from the FBI in an ongoing criminal investigation regarding the use of the funds.

The following May, the Arizona Capitol Times learned current Pinal County Sheriff Mark Lamb received the second subpoena, which sought all records “for transactions evidencing the misuse of county, state, or federal RICO funds by Pinal County Sheriff’s Office employees” and related correspondence with the Arizona Public Safety Foundation.

If either Babeu or Voyles does face consequences, it wouldn’t be the first time a law enforcement official was charged for running afoul of the rules governing asset forfeiture funds.

After an FBI investigation found that Pima County Sheriff’s Office employees had improperly spent nearly $500,000 in forfeiture funds over two decades, former chief deputy Chris Radtke was indicted for felony conspiracy to launder money and theft. He ultimately pleaded guilty to three misdemeanor counts of theft of federal funds.

A fresh start

In 2016, Voyles lost his re-election bid. Babeu also lost his second run for Congress, and his chosen successor, his former chief deputy Steve Henry, failed to get elected to take his place.

Current Pinal County Attorney Kent Volkmer invited the state audit soon after taking office and made comments to the press that he did so to uncover any “unlawful or inappropriate activity” if it was there to find. Those comments were enough to get him into hot water with his predecessor.

Voyles and Babeu sent a letter to Volkmer in May 2017, alleging he had made false statements and demanding an apology.

Volkmer issued no such mea culpa.

“Everybody deserves to know, good, bad or indifferent,” he told the Capitol Times at the time.

More to the point, Volkmer noted he had not been the first to raise concerns. Already allegations had been leveled against the county in the press, he said, and at the Capitol, Pinal County was given a bad name.

INCREASED ACCOUNTABILITY

During the 2017 legislative session, Pinal was offered as a prime example of why Arizona’s civil asset forfeiture laws needed tightening, largely referencing a federal lawsuit over a Queen Creek resident’s seized truck. State law enforcement officials almost exclusively came out against proposed changes, including Volkmer and Lamb. Yet House Bill 2477 was signed into law, increasing accountability measures regarding the use of the funds and making it more difficult for law enforcement officials to seize property.

Now, Miller said Pinal County can move forward.

The auditor general report issued several recommendations to the County Attorney and Sheriff’s offices, and responses provided by Volkmer and Lamb suggest steps have already been taken to mitigate past troubles. Among other changes, Volkmer now requires community groups to provide several layers of documentation to reflect that funds are being requested and ultimately used for authorized purposes. Perhaps more importantly, his office is retaining all such documentation. His predecessor had been unable to provide dozens of records sought in the audit.

Voyles broke rules meant to protect public funds and the people of Pinal County as did Babeu, Miller said. They failed.

Referring to Babeu and Voyles, Miller offered a final, parting criticism: “You chose to not follow the rules. You chose to make up your own rules.”

Bill targets human traffickers for lawsuits

A Republican lawmaker’s bill will allow victims of sex trafficking to sue their pimps and anyone else involved in the crime.

Rep. Shawnna Bolick, R-Phoenix, touted her bill during the Criminal Justice Reform Committee hearing on Jan. 20 as a common sense approach to allowing victims to seek damages against sex traffickers and their co-conspirators.

The bill, HB 2116, got unanimous approval in the House on Jan. 28 and will require passage in the Senate and the governor’s signature to become law.

Bolick read a testimony letter from the Arizona Attorney General’s Office that said while restitution is available in criminal cases, it is difficult to win convictions get restitution in cases involving human trafficking. And restitution only covers economic losses that occur during the trafficking itself and not other underlying damages caused.

Dianne Post, an attorney and state coordinator for legislative action with National Organization for Women, said prosecutors often don’t ask for restitution and often don’t follow up on collecting it when a court orders it.

She said the bill not only aims to give victims a chance at proper justice through compensation for physical or mental anguish they’d endured, but also as a preventative tool.

“Well, the idea is to give recompense and to help the victims recover, but of course, the more prevention-oriented goal is that if the perpetrators know that they could be financially sued and lose the money they made, then they won’t do it.”

The bill not only aims to give victims a chance at proper justice through compensation for physical or mental anguish they’d endured but as a preventative tool as well.

Since taking office in 2015, Attorney General Mark Brnovich’s office has prosecuted or is currently prosecuting 267 cases involving 327 defendants connected to sex trafficking, child sex trafficking, sexual exploitation of minors, or illegal enterprises/money laundering.

The National Human Trafficking Hotline reported 234 Human trafficking cases in Arizona in 2019, with 150 cases identified as sex trafficking. The organization connects victims and survivors of sex and labor trafficking with services to support and help them.

Post said the reason it has taken so long for a piece of legislation like this to come up is because a lot of past efforts criminalized the victim.

“We’ve worked on this bill at the federal level for many years, to ensure that the victim is treated as a victim because often times she’s [or he’s] treated as a criminal,” “She’s engaged in prostitution, so rather than being treated as a victim she’s treated as a perpetrator and therefore, is not seen as a person worthy of getting damages.”

It’s a more complicated matter, according to Post, because there’s the issue of consent, and in many cases, of the individuals being enslaved or forced into these activities.

“It would be the right direction should it pass, yes, but a lot more needs to be done, but it is a step in the right direction,” Post said.

Post recommended something along the lines of the Nordic model to combat sex trafficking in particular.

“It is a model that says that all of the people involved in the trafficking and prostitution; the facilitator, the money man, the pimp, the buyer; all of those people are criminally liable, Post said.

Who would not be criminally liable would be the victim, said Post. The Nordic model approach to prostitution has been adopted in Sweden, Norway, Iceland, Northern Ireland, Canada, France, Ireland, and Israel.

Billionaire identified as source of $500K contribution to Ducey campaign

Gov. Doug Ducey’s reelection campaign is quietly conceding that a $500,000 donation listed as coming from a newly formed company actually was a billionaire who works for a company that owns more than two dozen auto dealerships in the state.

Capitol Media Services has discovered that the Ducey Victory Fund on Wednesday retroactively amended the campaign finance report it filed on July 16 to remove the name of Blue Magnolia from the donation. The report now reads that the money came from billionaire Larry Van Tuyl who runs the Berkshire Hathaway Automotive Group after he sold his 28 dealerships to the firm in 2014.

That amended filing comes just two days after the Attorney General’s Office received and began investigating a complaint from the Campaign Legal Center that the committee set up to help the governor get a second four-year term violated laws making it illegal to donate money to a campaign in the name of someone else.

But Brendan Fischer, director of the organization’s federal reform program, said the fact that the disclosure now has been corrected and the true source of the dollars is now public should not end the probe.

“It’s not enough that a half million-dollar contribution is reattributed once the secret donor gets caught,” he said. “It’s important that Arizona authorities send a message that this kind of conduct is impermissible.”

And Fischer does not think the probe should end with how it was actually Van Tuyl who put the money into Ducey’s campaign in May through the limited liability company that had been formed in Delaware just two weeks earlier. He wants Attorney General Mark Brnovich to find out what the governor and his campaign staff knew and when they knew it.

“The public has a right to know whether the governor knew about the true source,” Fischer said.

He pointed out that the reports available to the public as of Election Day continued to list only Blue Magnolia as the donor of the $500,000.

“The governor may have known where this money was coming from,” Fischer said. “But the public did not.”

Ducey himself has refused to answer what he knew about the $500,000 donation. Nor would he say whether he even questioned getting a check that large from a limited liability company that did not exist two weeks earlier and, according to the complaint, had no visible assets or cash.

On Thursday, J.P. Twist, who managed Ducey’s reelection campaign, would say only that the Ducey Victory Fund “received a request from the donor to reclassify the contribution as personal.” It was that request, Twist said, that resulted in the amendment filed Wednesday of the report that originally had been submitted in July.

Arizona law makes it a crime to make a contribution in the name of another person or to knowingly accept a contribution made by someone in the name of another person. Violations are a Class 6 felony, which carry up to a one-year prison term and a $150,000 fine.

The original CLC complaint, filed Dec. 4 with the Secretary of State’s Office, said there was reason to believe that the $500,000 Blue Magnolia donation actually came from Van Tuyl.

That wasn’t just idle speculation.

Months earlier the CLC had filed a similar complaint with the Federal Elections Commission about a $100,000 donation made by Blue Magnolia to DefendArizona, a political action committee set up to help Martha McSally in what ultimately proved to be an unsuccessful bid for the U.S. Senate. After that complaint was submitted, DefendArizona amended its own federal campaign finance reports to show that the cash actually came from Van Tuyl.

Fischer said that CLC, which monitors federal election filings, had been unaware of the Blue Magnolia donation to the Ducey Victory Fund until it was reported by Capitol Media Services. That resulted in the Dec. 4 complaint.

Less than a week later, though, state Elections Director Eric Spencer forwarded the complaint to the Attorney General’s Office. Spencer said his office generally does not handle campaign finance complaints if the underlying conduct is a crime, versus a simple civil violation that could be remedied with a fine.

“We take all allegations very seriously and we are actively reviewing it,” AG’s spokeswoman Katie Conner said of the complaint. “No further comment will be made at this time.”

Van Tuyl at one time owned more than 75 auto dealerships nationwide, including 28 in Arizona, with an estimated $8 billion in annual revenues. The 2014 sale, described at the time as an all-cash deal, put those in control of Berkshire Hathaway where Van Tuyl is now president and chairman of the board of the company’s automotive group.

Celebritynetworth.com lists Van Tuyl’s net worth at $2 billion.

The Ducey Victory Fund is actually only one of the campaign committees set up by the governor and his supporters to take contributions.

One, the Ducey for Governor Committee, lived within the limits set by Arizona law. That includes a cap of $5,100 on any individual contribution and a prohibition against taking corporate dollars.

But the Ducey Victory Fund had no such constraints.

Aides to the governor said non-corporate contributions to that fund within the $5,100 limit were transferred to the governor’s own committee. The other dollars were given to the Arizona Republican Party which has no constraints on the size or source of donations. And the party then could spend money on its own commercials and efforts promoting Ducey’s reelection.

Bisbee to AG: keep state’s nose out of bag ban

The Bisbee city attorney told Attorney General Mark Brnovich Tuesday that his community’s regulations on plastic bags are none of the state’s business.

In a sometimes sharp worded letter, Britt Hanson detailed the city’s problem with blowing bags and the eyesore and expense they caused prior to adoption of a 2013 ordinance. That law prohibits retailers from providing free single-use plastic bags to customers; paper bags from recycled material can be provided with retailers required to charge a nickel.

The result, he said, has been a cleaner community and lower costs for retailers.

Hanson said there was no reason for the Legislature to approve a 2016 law preempting local governments from regulating these bags. In fact, he took a slap at those lawmakers who voted for the law to overturn the Bisbee ordinance without ever having actually been to the community.

“Although the law prohibiting Bisbee from banning plastic bags declares that it is a matter of statewide concern, it doesn’t say what that concern is,” he told Brnovich. And without any legal basis, Hanson said that law cannot be used to force Bisbee to scrap its ordinance.

The letter sends the issue back to Brnovich who had gotten a complaint last month from Sen. Warren Petersen, R-Gilbert, accusing the city of violating the preemption law he had pushed through the Legislature.

A separate 2016 law requires Brnovich to investigate any legislator’s complaint that any city ordinance runs afoul of state laws. If he determines a city is acting illegally, he must move to withhold that community’s state aid.

There was no immediate comment from the Attorney General’s Office to Hanson’s letter.

Brnovich recently got the Arizona Supreme Court to rule that state laws prohibiting city ordinances dealing with weapons overruled Tucson’s right to order the destruction of guns which had been seized by or surrendered to police.

But Hanson, in his letter to Brnovich, said the Bisbee ordinance is different. He said the only basis cited for Petersen’s preemption was language added to the bill claiming that small businesses are sensitive to costs of local regulation and that allowing cities to each have their own laws “hinders a small business from benefiting from free and open competition.”

Hanson sniffed at that excuse.

“You would be hard pressed in the legislative proceedings of either the House or Senate to find any testimony or alleged facts on which to base such findings,” he told Brnovich. And he said no lawmaker ever even asked about the Bisbee ordinance already in existence that they were moving to quash.

“If they had, they would have found that Bisbee’s retailers have embraced it,” Hanson said. He attached a letter from Pam Rodriguez, the owner of Acacia on Main Street, who said she is saving between $500 and $600 a year on bags.

And he said that Safeway, the city’s largest retailer, provided the language for the model ordinance on which Bisbee’s regulation is based.

“Just because the Legislature decrees something is ‘statewide concern’ … does not mean it overrides the local concern,” Hanson said.

That goes to Hanson’s main argument that there is no basis for lawmakers saying they know what’s best for Bisbee and other local communities.

“If the businesses in Bisbee that the Legislature is supposedly protecting with HB 2131 have no issue with the bag ban, does the state really have an interest in prohibiting Bisbee from doing so?” he asked. “And really, who should decide how best to combat Bisbee’s blight and litter: the citizens of Bisbee and their representatives, or state legislators most of whom probably have never even visited Bisbee and have no clue as to its local concerns?”

That, however, still leaves the legal question of how far cities can go in enacting their own rules when state lawmakers say otherwise.

Hanson pointed out that Bisbee is one of 19 cities that has taken advantage of a state constitutional provision allowing it to have its own charter. Those cities have generally been empowered to write their own ordinances on matter of strictly local concern, regardless of conflicting state statutes.

For example, the Arizona Supreme Court has upheld the ability of charter cities to decide how to elect members of their councils and on what days to have those elections despite legislation to the contrary.

But in its August ruling on the Tucson gun ordinance, the justices unanimously concluded that charter provisions and the law enacted by charter cities must be consistent with both the Arizona Constitution and general state laws.

Hanson conceded the breadth of that ruling. But he told Brnovich — and essentially prepped for what could be his argument to the Supreme Court if Brnovich sues — that it makes no legal or logical sense to have a blanket rule that lawmakers can do whatever they want to cities.

“If Bisbee’s exercise of its charter powers to eliminate local litter and blight can’t survive, it’s hard to imagine what possible could,” he wrote.

“The notion of charter cities would become a joke,” Hanson continued. “The Legislature could crush any independence of charter cities, and thus override the (Arizona) Constitution, simply by declaring anything to be a matter of statewide interest, as they have attempted to do here.”

Brnovich says Phoenix immigration policy conforms to SB1070

Calling the city of Phoenix’s policy of welcoming migrants more rhetoric than real, Attorney General Mark Brnovich concluded Monday that nothing the city council told the police to do violates state laws on illegal immigration.

Brnovich issued his conclusions after a legislator asked him to investigate the city’s immigration policy on suspicion it conflicts with SB1070, the historic 2010 law designed to get local police more involved in enforcing federal immigration laws.

Brnovich said it is clear the council wanted to adopt “aspirational language” designed to show that the mayor and city council welcome all those who live in the city, regardless of legal status.

But Bnrovich and O.H. Skinner, head of his government accountability and special litigation unit, concluded nothing in the policies telling police how to deal with people suspected of being here illegally conflicts with SB1070.

“Whatever gloss has been placed on it by local elected officials, the Operations Order by its terms does not conflict with state law or appear to put the city in conflict with the federal government,” the new ruling states. “Indeed, the U.S. Department of Justice, led by Attorney General Jeff Sessions, has not included the city in its recent ‘last chance’ warning over ‘sanctuary city’ laws.”

Brnovich put a sharper point on that in an interview with Capitol Media Services.

“I think that the city in some ways tried to be a little cute with their policies,” he said. “They tried to massage the language so they could appear as if they were doing something they weren’t. But the reality is this policy is worded in a way that makes it entirely consistent with SB1070.”

The new opinion has implications beyond just Phoenix.

Skinner noted that the vote earlier this year by the Phoenix council directed the city police department to revamp its policy on dealing with those who may not be in the country legally to align with those already in existence in Tucson, Mesa and with the Maricopa County Sheriff’s Department. That would appear to mean those policies also conform to state law.

Brnovich, however, said he has not reached such a legal conclusion, saying only the Phoenix policies were being scrutinized.

He also cautioned that his review was based on whether the policies as written run afoul of key provisions of SB1070, not the actions of individual officers.

One section of SB1070 requires that police make an attempt when practicable to ascertain the legal status of those they encounter if there is reasonable suspicion they are in the country illegally. Another deals contacting Immigration and Customs officials.

State Sen. John Kavanagh, R-Fountain Hills, triggered Brnovich’s inquiry, using a 2016 law that allows legislators to force the attorney general to investigate suspected instances where local ordinances conflict with state statutes. He argued the city policies conflict with SB1070.

For example, Kavanagh charged that police and school resources officers are precluded from asking immigration questions or contacting ICE while on school grounds.

“This blanket ban makes schools sanctuary sites, where anyone — child, adult, student, staff member or visitor — in the country illegally is protected from otherwise lawful immigration inquiries mandated by law,” the senator told Brnovich.

But Skinner, who signed the seven-page opinion, pointed out the Phoenix policies require officers to act “in a manner consistent with federal and state laws regulating immigration.”

“Where the circumstances set forth in (various sections) are triggered, officers are under an obligation to carry out their mandatory duties under state law, regardless of whether they are on school grounds, involved in traffic enforcement, or otherwise,” he wrote.

Monday’s ruling left Kavanagh frustrated and a bit confused. The senator said he and lawyers working with him on the issue hope to meet with Brnovich and his staff in the next few days to better understand how they reached their conclusion.

But Kavanagh said he isn’t buying the conclusion that Phoenix is really doing what it is supposed to do to combat illegal immigration.

“The best case scenario for Phoenix is they drafted a convolutedly worded ordinance that fulfills the technical requirements of 1070 but violates the spirit of 1070,” he said.

Kavanagh said that might be fine if the law were being enforced only by attorneys. But Kavanagh said when police officers look at the language, they will read it in a way to restrict their ability to question and detain suspected undocumented people.

Brnovich conceded that it is possible that the actual practices of police officers are different than what the policy states.

But he said the 2016 law requiring his agency to review local laws goes only to what’s on paper. And with that as his only legal basis for review, Brnovich told Capitol Media Services he cannot find those policies at fault.

“There is nothing in there that conflicts with SB1070,” he said. “Furthermore, if you look at the language, it actually tracks and is consistent with 1070.”

Brnovich said anything outside those words — including the rhetoric of council members — is irrelevant.

“They were making an attempt to try to massage this issue a little bit and maybe act as if they were undermining 1070 or whatever,” he explained.

“They can say whatever they want to say,” Brnovich continued. “But the reality is the city council took a vote to not become a sanctuary city and the city has adopted policies which are entirely consistent with SB 1070.”

Court says misapplied law allows killers chance at parole

Some erroneous words used by judges 25 years ago could possibly result in the release of nearly 300 people who the law said should have been incarcerated for the rest of their lives.

In a ruling March 5, the Arizona Supreme Court acknowledged that a 1993 law eliminated the possibility of parole for any crimes committed after January 1, 1994. And that, legally speaking, should have resulted in Abelardo Chaparro being imprisoned for life for a murder he committed in May 1995.

Only thing is, the judge sentenced Chaparro to “life without the possibility of parole for 25 years.”

Justice James Beene, writing for the unanimous Supreme Court, said that was legally wrong.

But Beene pointed out that neither the prosecutor nor the defense attorney pointed that out at the time.

Now, he said, it’s too late. And what that means, Beene said, is that Chaparro is now eligible to seek parole.

Technically speaking, the Supreme Court ruling affects only Chaparro who challenged the refusal of the Department of Corrections to consider him for parole.

But in legal papers filed with the court, that agency declared there are “approximately 290 inmates that may have sentences similar to Mr. Chaparro.” And they can now use the precedent set in this case to seek their own parole eligibility.

Drew Ensign, the state’s deputy solicitor general, conceded to the court that there is no question but that the law was changed and parole was no longer an option.

“But like the proverbial tree falling in a forest, many failed to notice,” he wrote.

“Specifically, sentencing judges, prosecutors, and likely many defense attorneys all failed to account for the Legislature’s express and unequivocal abolition of parole,” Ensign said. “A few hundred times.”

Nothing in court’s order guarantees that Chaparro – or any of the other perhaps 290 affected inmates – actually will be freed. Instead, it allows them to try to convince the Board of Executive Clemency that they will be able to “remain at liberty without violating the law and that the release is in the best interests of the state.”

But they now have the ability to try to make that case.

There was no immediate response from the Department of Corrections.

The facts are not in dispute.

Chaparro originally was sentenced to “natural life,” which would preclude the possibility of parole. But in a subsequent order, the judge removed the word “natural” and clarifies that the sentence was “life without possibility of parole for 25 years.”

Beene rejected arguments that the trial judge failed to understand what he was doing. He pointed out that, during sentencing, the trial judge told Chaparro that there were three sentencing options: death, life in prison until death, and life without the possibility of parole for 25 years.

Both sides also agree that the sentence imposed was “illegally lenient” because it violated the 1993 law. What that means, the Attorney General’s Office argued, is that the court cannot enforce it.

Beene disagreed.

“Illegally lenient sentences are final under Arizona law absent timely appeal or post-judgment motion,” he wrote.

One was not made, Beene said, meaning “his illegally lenient sentence is final under Arizona law.”

What all that leaves is who else might get a chance at release.

In arguments to the court, Ensign said this case “arises from an unfortunate chapter in the history of the Arizona criminal justice system.”

Sentences allowing parole were imposed despite the fact the law was changed. But he argued that those sentences are legally void as contrary to “the Legislature’s explicit abolishment of parole eligibility.”

The high court disagreed, saying any challenge now comes too late.

Ensign also argued that trial judges who handed down sentences with the possibility of parole were unconstitutionally intruding on the turf of lawmakers who have the exclusive power to determine if parole is an option. But Beene said that, strictly speaking, the judges did no such thing.

“Rather than perform a legislative function, the trial court misapplied the law when it conferred parole eligibility,” he wrote.

“Therefore, the trial court did not violate separation of powers by including, albeit incorrectly, parole eligibility in its sentenced order, nor does this court do so by upholding that sentence, which the state failed to appeal,” Beene continued. “Absent a timely appeal, the illegally lenient sentence must stand.”

The Legislature has since restored the option of parole for those who were sentenced pursuant to a plea deal with such a stipulation, and that deal spelled out how many years the person would first have to serve.

Ex-AG Tom Horne violated campaign laws

A three-year investigation of former Arizona Attorney General Tom Horne found he illegally used his office staff to work on his failed 2014 re-election effort but that no criminal charges are warranted and he won’t have to pay back additional money.

The investigation by former Gilbert Town Attorney Michael Hamblin and retired Court of Appeals Judge Daniel A. Barker that followed a complaint to the secretary of state’s office was released Monday. Hamblin and Barker were appointed as special attorneys general.

Their decision orders Horne to refile his 2014 campaign finance reports to show the value of the work done by his office staff and the market value of rent on a campaign office.

But the order said a $10,000 fine Horne paid to the Arizona Citizens Clean Elections Commission in late 2014 to settle the same allegations was sufficient.

The allegations against Horne helped torpedo his re-election. He lost in the Republican primary to current Attorney General Mark Brnovich. Brnovich played no role in the investigation.

Monday’s decision essentially ends a series of legal troubles that have dogged Horne for years, although Horne said his attorney may consider an appeal to an administrative law judge “for reputation purposes.” The new campaign finance filings, when they come, will also be reviewed by Clean Elections to ensure they meet the terms of the earlier settlement.

The Maricopa County Attorney’s Office previously concluded that no criminal charges should be brought for the use of office staff for his campaign because there wasn’t a reasonable likelihood of convicting Horne on felony charges and the statute of limitations on misdemeanor charges had passed.

Separately, Horne spent years battling allegations that he illegally coordinated campaign matters with former aide Kathleen Winn when she ran an outside group supporting his 2010 election. Yavapai County Attorney Sheila Polk determined Horne violated campaign finance laws, ordering him to repay $400,000 and face up to $1.2 million in fines. But the Arizona Supreme Court ruled in May that Polk wasn’t a neutral arbiter, and the Cochise County Attorney cleared Horne in July.

In Monday’s lengthy decision, Hamblin found that several of Horne’s staff at the Attorney General’s Office engaged in campaign work while on state time, and ordered him to re-file his campaign finance documents to account for their time. Hamblin also found that a $100 payment for use of a private office was below market value and needed to be accounted for.

But Hamblin noted that it would be difficult to fully account for the use of state staff and bypassed any additional fines, saying the $10,000 payment Horne made in 2014 was “deemed sufficient.”

Horne has consistently said he didn’t violate any campaign finance laws and that any campaign work that was done by state staff was minimal and didn’t violate the law.

In a statement, he said he was “pleased that after three years intensive scrutiny and investigation, page 18 of the report states that the $10,000 previously paid by Tom Horne ‘is deemed sufficient,’ and that there is no reason to impose additional fines.”

He didn’t address the conclusions that he used his staff to do campaign work on state time. But Horne noted “the use of any state supplies, and computers appears to have been minimal.” He also said employees he hired who doubled as campaign staff were capable state employees.

One of those staffers, Sarah Beattie, filed the complaint that alleged top executive staff in Horne’s office did fundraising, campaign planning meetings and other campaign activities while on state time.

Federal judge denies state officials access to Democratic voter data

A federal judge on July 24 denied the Arizona Secretary of State’s Office’s attempt to get privileged documents containing voter demographics and related information from the national and local Democratic Party.

The order stems from a legal battle that began following the 2016 Presidential Primary, when hours-long lines and lack of reasonable polling locations prevented some Arizona voters from making it to the ballot box.

In April 2016, the national and local Democratic Party interests called on a federal judge to reassess the way Arizona handles voting procedures and laws. In the original paperwork, the plaintiffs said the entire state has engaged in “consistent activity that has created a culture of voter disenfranchisement” since the U.S. Supreme Court decided Arizona could have free-reign over its voting procedures.

Secretary of State Michele Reagan and Attorney General Mark Brnovich requested access to numerous privileged documents from the Arizona Democratic Party, Democratic National Committee, and Democratic Senatorial Campaign Committee on the basis that the documents contained “highly relevant information.”

But, the plaintiffs cited the First Amendment as reason for the judge to rule in their favor. The plaintiffs argued that the First Amendment protects “political association from government infringement.”

The state was requesting the disclosure of several emails, analyses and data reports. Arizona Democratic Party Chair Alexis Tameron said in a sworn declaration the documents requested contain “estimates of demographic characteristics and likely voting behavior of the electorate” and “set forth the ADP’s strategies and targets for conducting outreach to voters to communicate ADP’s message, and for encouraging voters who associate with ADP and support ADP’s values to turn out to vote.”

The state argued that the plaintiff’s had waived their First Amendment rights to protect those documents as soon as they cited their demographic research as evidence of mistreatment of minority voters. The defendants also argued that some of the requested information had already been provided to the media, so the state should have that information as well.

A witness for the Democrats could not confirm whether the information cited in a story by The Arizona Republic was actually derived from the privileged documents.

The plaintiffs’ attorney argued that if the “highly relevant data” was all the state was after, it could find that data elsewhere, as most of it is available to the public. The documents however, are based on raw demographic data and overlaid with internal analysis and predictions.

Tameron explained that because of the additional information in the documents, she was worried that “disclosure of such communication risks revealing the viewpoints, political associations, and strategy of such partners” could harm the Democratic Party and its relationships in the future.

Furthermore, the party said some of the documents contain information from their election incident hotline, including specific voter information and precincts it was concerned about.

Funds sought to handle spike in border prosecutions

FILE - This April 2, 2017 file photo made with a drone, shows the U.S. Mexico border fence as it cuts through the two downtowns of Nogales, Ariz. A U.S. border patrol agent is going on trial for second-degree murder in U.S. District Court in Tucson on Tuesday, March 20, 2018, in a rare Justice Department prosecution of a fatal cross-border Mexico shooting. (AP Photo/Brian Skoloff, File) — FILE – This April 2, 2017 file photo made with a drone, shows the U.S. Mexico border fence as it cuts through Nogales, Ariz. and Nogales Sonora. (AP Photo/Brian Skoloff, File)

The Arizona Attorney General’s Office is looking for a little help for its southern Arizona unit, which is swamped with cases from the Arizona Border Strike Force.

AG spokesman Ryan Anderson said that while the Department of Public Safety has received extra funding to operate the Border Strike Force, the AG’s Office, which has taken on the prosecution of the cases, has been shortchanged.

The Border Strike Force was created by Gov. Doug Ducey in 2015. DPS received $2.9 million in fiscal year 2019 to expand Border Strike Force operations, and DPS is requesting an additional $2.97 million in fiscal year 2020 for 11 new troopers and one sergeant to fully staff round-the-clock patrols on southern Arizona highways, a request that will likely be met.

But Anderson said the AG’s Office has not received any funding to prosecute those cases and the caseload is becoming unmanageable.

In fiscal year 2018, there were 90 active strike force cases handled by prosecutors in the Southern Arizona White Collar and Criminal Enterprise Division, up from 69 cases in fiscal year 2017.

That’s about 14 percent of all of the cases the southern Arizona division took on in fiscal year 2018, and the agency didn’t receive additional resources to handle the increased workload, Anderson said.

While most of the cases are drug backpacking cases that are typically open-and-shut, Anderson said, they’re time consuming and take away resources that could otherwise be used to prosecute cases the agency is statutorily required to handle.

In a budget request to the Office of Strategic Planning and Budgeting, the AG’s Office is requesting $795,000 in fiscal year 2020 to fund eight positions in its Southern Arizona White Collar and Criminal Enterprise division. All agencies are required by law, as part of the budget process, to submit budget requests to OSPB by September 1.

Anderson said the funding will pay for three new full-time positions – a prosecutor, legal assistant and a legal secretary – and also fund five positions that are currently paid with anti-racketeering funds.

The division, known as SAWCCE, prosecutes all criminal cases under the agency’s statutory jurisdiction, including white collar crimes, investment and securities fraud, embezzlement, cartel and criminal enterprise cases, public corruption cases, misuse of public funds, and internet crimes against children.

SAWCCE also takes on a sizable amount of cases referred to the agency by county attorneys if there is a conflict of interest or a lack of expertise or resources to handle an investigation, and prosecutes the vast majority of the Border Strike Force cases.

Anderson said while the entire agency is seeing an increase in workload, attorneys in the southern Arizona division are “severely inundated and overworked.”

He attributed the increase to a growing number of referrals from outside agencies and the prosecution of Border Strike Force cases.

In fiscal year 2018, there were 649 active cases being handled by SAWCCE. Of those, 272 were resolved during the fiscal year leading to 323 defendants being charged, Anderson said. Data was not available for fiscal year 2019.

That’s roughly 81 active cases per each of the eight attorneys in the division. An additional attorney, which the AG’s Office is requesting, could handle an adtional 25 to 40 felony cases per year, he said.

In comparison, Anderson said the U.S. Department of Justice Fraud Section charged 301 defendants and convicted 207 defendants with a staff of 140 prosecutors in 2017. That’s about two defendants charged per attorney, compared to about 40 defendants charged by the AG’s eight attorneys in Tucson last fiscal year.

Anderson said the attorney general asked for funding to address the growing caseload and new burden of prosecuting Border Strike Force cases in its fiscal year 2019 budget request, and while partial funding was included in the governor’s executive budget, the appropriation was scrapped by the Legislature at the last minute.

Anderson said that forced the agency to move a prosecutor from its Phoenix office to Tucson, eliminate a special agent position and create a legal assistant position in Tucson to assist with the caseload.

Ducey spokesman Daniel Ruiz said public safety is a top priority for the governor, which is why he included an appropriation to SAWCCE in his executive budget this year. He said the Governor’s Office will be continuing discussions with agencies as it creates its fiscal year 2020 executive budget proposal.

Anderson said if the AG’s Office doesn’t receive additional funding next year, the agency will have to start picking and choosing which cases to prosecute and which to refer to another agency. He said the Border Strike Force cases will likely be the first to be referred to county attorneys in southern Arizona.

Judge rules AG missed deadline to sue regents

An artist’s rendering of the planned 330-room Omni Hotel in Tempe.

A judge has once again rejected efforts by Attorney General Mark Brnovich to challenge what he contends is an illegal deal by the Arizona Board of Regents to build a hotel and conference center.

In a ruling late Wednesday, Tax Court Judge Christopher Whitten does not address Brnovich’s contention that the deal violates the Gift Clause of the Arizona Constitution. That claim is based on the idea that the Arizona Board of Regents is effectively providing a subsidy to the private developer by paying for a conference center that the university would be able to use just seven days a year.

There’s also a separate legal question of having what amounts to a tax exemption for the hotel because it is being built on tax-exempt university property.

What Whitten does say is that the legal claim came too late, meaning he has no legal right to decide if Brnovich is right or wrong.

In a prepared statement, Larry Penley, president of the Board of Regents, praised the ruling − and the implications for similar developments.

“Leveraging our real estate provides an entrepreneurial opportunity to increase revenues to benefit students, the community and the state of Arizona,” he said.

Appeal to Come

Brnovich press aide Ryan Anderson vowed an appeal. He said the judge got it wrong in deciding the claim came too late.

And even if Brnovich ultimately loses, Wednesday’s ruling does not provide a clear legal path for the regents to engage in similar deals. It still leaves the door open for Brnovich to sue to block similar deals in the future at any of the state’s three universities − if he files suit on time.

Central to Wednesday’s ruling is the fact that lawsuits of this kind must be filed within a year of someone learning about a questionable legal practice. And Brnovich did sue on Jan. 10.

But the paperwork filed at that time dealt only with questions about the authority of the Board of Regents to enter into a deal to create a 330-room Omni hotel and a 30,000-square-foot conference center on land that is owned by Arizona State University.

It was only on April 3 that Brnovich amended the complaint to add the Gift Clause allegations.

Whitten said that means if the attorney general knew or should have known about the issue before April 3, 2018 − that one-year statute of limitations − he should have acted by then.

Whitten said the evidence shows that attorneys within Brnovich’s office circulated and discussed a report by the Arizona Tax Research Association as early as January 2018, which criticized the regents for leasing its property to private entities. That report, the judge said, opined that such transactions were “dubious” under the Gift Clause.

Whitten also noted that Rep. Athena Salman, D-Tempe, wrote an op-ed in the Arizona Republic that same month critical of the deal, though it focused more on the $21 million in tax breaks from the city of Tempe. That article, the judge said, also circulated within the Attorney General’s Office, with one of the lawyers there commenting that an element of the deal “sounds pretty suspicious.”

He acknowledged there were certain elements about the Omni deal which the Attorney General’s Office did not actually know about until after April 3, 2018, one year before the amended complaint was filed. That includes things like the number of days Arizona State University would have free use of the conference center.

But the judge said that didn’t matter.

“The statute of limitations … does not accrue when all the details of a claim became known to the plaintiff,” he wrote. “It accrues when enough details of the deal were known, or should have been, that the plaintiff could identify that a wrong had occurred and caused injury.”

And in this case, Whitten said, the key elements were known more than a year before Brnovich filed his amended complaint in April of this year. That specifically includes the fact that ASU would pay $19.5 million to build the conference center − a facility it would have use of without cost only seven days a year − and that the hotel operators would not pay property taxes because the facility was built on property owned by the regents.

ASU officials, in a prepared statement, said the school is “committed to transparency and welcomes inquiry from anyone at any time, including the attorney general, about our projects.” But it also took a slap of sort at Brnovich.

“At no time did he bother to inquire,” the statement reads.

Brnovich, for his part, is undeterred by the ruling.

“Any time you take on the establishment, it’s never an easy fight,” he said in his own prepared statement. “We will continue to fight for Arizona taxpayers, for greater transparency and fiscal accountability from our public universities.”

That issue of transparency came up earlier this year in a review by the Auditor General’s office of the practices of the regents in leasing out their property for commercial use. That report concluded there was a lack of proper oversight and limited transparency, creating a “risk of inappropriate use of public resources.”

Previous rulings

The appeal Brnovich promises will address more than just Whitten’s ruling on the timeliness of the Gift Clause claim.

Earlier this year Whitten threw out other parts of the challenge by Brnovich, including whether state universities can lease out the land they own for private, for-profit operations.

The judge said Arizona law gives the Board or Regents the authority to buy, hold and sell real estate. That power, he wrote, specifically includes the power to enter into leases of the land it owns.

And in this case, Whitten said, the deal to create the hotel and conference center on land that is owned by Arizona State University clearly is a lease.

The judge also would not let Brnovich claim that, by seeking to void the deal, he is enforcing laws to ensure that all property is being properly taxed.

“As a matter of law, the property on which the Attorney General seeks to collect tax is constitutionally exempt from taxation,” Whitten wrote, because it belongs to the universities and the regents. “There is no tax owing, and nothing for the Attorney General to enforce.”

Law to force AG investigation of cities ‘rung’ again, complaint withdrawn quickly

A Yuma lawmaker on Friday started the short-lived process of initiating an attorney general investigation into whether the City of Somerton violated state law by charging a local church a fee for a building permit.

Sen. Don Shooter, R-Yuma (Photo by Rachel Leingang, Arizona Capitol Times)

Republican Rep. Don Shooter quickly withdrew the complaint on Monday after word spread that city officials are working to fix a local zoning ordinance that conflicts with state law.

The complaint was filed under SB 1487, a 2016 law that allows lawmakers to require the attorney general investigate alleged violations of Arizona law or the Constitution by municipalities.

A recent Arizona Supreme Court ruled affirmed the legality of SB 1487, when the court upheld that state law trumps regulations adopted by cities, counties and towns. In that case, the court found a Tucson law that sought to destroy firearms seized by law enforcement contradicted state statute, which requires seized firearms to be sold.

But Shooter said in an interview there’s no need for his complaint, which he said was filed due to a misunderstanding. He sent a letter to the attorney general withdrawing it.

“After speaking with the Arizona League of Cities and Towns… it has come to my attention that the League intends to work with the City of Somerton to address the specific complaints,” Shooter wrote in the letter.

Unbeknownst to Shooter or the Attorney General’s Office, officials in Somerton — located just outside of Yuma — have spent the better part of the summer corresponding with the U.S. Department of Justice. The DOJ’s Division of Civil Rights has been working with city officials to find a remedy to the problematic zoning ordinance, which the city sought to apply to the Iglesia Bautista de Somerton.

The church rents a building in a zoning district where Somerton’s zoning code requires religious organizations to apply for and pay for a conditional use permit, according to correspondence between Somerton officials and the U.S. Justice Department. Those emails were forward to the Arizona Attorney General’s Office on August 17 in response to a letter from Assistant Arizona Attorney General Evan Daniels on August 10, alerting the city that in the eyes of the attorney general, Somerton was violating state law.

Daniels wrote to Carmen Juarez, Somerton’s director of community development, that Arizona statute mirrors a federal law requiring equal treatment of religious and nonreligious organizations when it comes to land use regulations.

Despite state statute, Somerton’s zoning ordinance “treats religious assemblies ‘on less than equal terms’ with nonreligious assemblies,” Daniels wrote. The purpose of the letter was to “encourage the city to amend its zoning ordinance to avoid any potential legal action,” he said.

The church balked at Somerton’s requirement for a conditional use permit and the $575 fee associated with it, arguing that the city did not require it of all organizations, including nonreligious groups, according to Shooter’s complaint. Somerton officials responded last October with threat of a citation for a zoning code violation, and according to correspondence from city attorneys, it appears they filed a complaint in court to that effect.

In his complaint, Shooter likened the situation to the case of Centro Familiar Cristiano Buenas Nuevas v. Yuma, a case that made it all the way to the U.S. Ninth Circuit Court of Appeals in 2009. The court determined that a city zoning code that explicitly required religious organizations to obtain conditional use permits in certain zoning districts that did not require the same permits of other nonreligious organizations violated federal law.

Similarly, Arizona law states that “government shall not impose or implement a land use in a manner that treats a religious assembly… on less than equal terms with a nonreligious assembly,” Shooter wrote in his complaint.

William Sims, the city’s attorney, responded to Daniels with a letter outlining his exchanges with federal officials, including the text of proposed changes to the zoning ordinance and schedule for Somerton officials to adopt those changes. If the city sticks to those deadline, the zoning ordinance will be approved on October 17 and take effect 30 days after that.

Ken Strobeck, executive director of the League of Arizona Cities and Towns, confirmed that Somerton is on the path to complying with the attorney general’s request.

“As far as I’m concerned, this is the way things should work out,” Strobeck said. “Basically, approach the city or the League and say, ‘Can we work this out?’ And then we work it out without having to go through all this formal complaint investigation stuff.”

As for the Attorney General’s Office, spokesman Ryan Anderson said their concern now is whether Somerton will continue to enforce the zoning code up until it’s changed to avoid conflicting with state and federal law. The attorney general only just became aware of the DOJ’s involvement with Somerton on Monday, Anderson said.

“I appreciate that the city of Somerton appears to be taking the steps to repeal their illegal ordinance. It’s too bad that it took the threat of the DOJ and the attorney general’s office to review an ordinance that appears on its face to be illegal,” Anderson said. “Between now and October, will the city commit to essentially pausing this ordinance until they have time to address it via their process?”

Shooter said he expects to sit down with Somerton officials and the Attorney General’s Office soon to make sure a conclusion has been reached, and Anderson said their counsel would be happy to attend such a meeting.

And he said it’s better when cities and towns resolve their conflicts with state law outside of the SB 1487 process.

“The SB 1487 bell has been rung only three times: Somerton, Tucson, and Snowflake. And in two of these cases, the situation resolved itself at the local level,” Anderson said. “I would say that the Supreme Court decision in the Tucson case has had an impact, and SB 1487 as an enforcement mechanism is effective.”

LD23 awash in curious campaign conflicts

Rep. John Kavanagh, R-Fountain Hills, smiles as he addresses the legislature in the Arizona House of Representatives at the Arizona Capitol Monday, Jan. 13, 2014, in Phoenix. The Republican lawmaker wants the state constitution amended to allow cuts to public employee pensions and increases in employee contributions if the systems are badly underfunded. (AP Photo/Ross D. Franklin) — Rep. John Kavanagh, R-Fountain Hills, smiles as he addresses the legislature in the Arizona House of Representatives at the Arizona Capitol Monday, Jan. 13, 2014, in Phoenix. (AP Photo/Ross D. Franklin)

The progression of the election season seems to have only encouraged candidates for the House in Legislative District 23 to continue accusing each other of criminal misdeeds.

Last week, Rep. John Kavanagh, R-Fountain Hills, called the state Attorney General’s Office to complain about a robocall paid for by the campaign of Eric Kurland, a Democrat aiming to take the district’s open seat.

Kavanagh contends that the call, in which Professional Fire Fighters of Arizona President Bryan Jeffries announces his endorsement of both Kavanagh and Kurland, constitutes a potential violation of law banning coordination between candidates and political action committees – a felony, as he pointed out in the Republican Briefs on October 27.

“Kurland and Kavanagh will work together to protect Arizona, the same way we all work together to fight fires,” Jeffries said in the robocall

Kavanagh was so struck by his belief in the illegality of this message – one that appears to be without merit, as those laws typically govern expenditures made by a PAC to support a candidate, not the other way around – that he “immediately” phoned the AG’s office to flag the call, he wrote in Briefs.

Charles Siler, Kurland’s communications director, called the accusation a “desperate attempt by Republicans to hold onto their waning power” and denied the claims of illegality.

Kavanagh said that because Kurland’s campaign paid for the call, which features Jeffries urging voters to support both men due to their endorsement by his organization, he must have coordinated with a political action committee. But this is a stretch, given that coordination laws cover independent expenditures on behalf of a candidate, not campaign expenditures announcing an endorsement from a labor organization that also operates a political action committee.

“You really only get into felony territory if the resources of the union are being used to support the campaign,” said elections attorney Eric Spencer. “I think it’s a rather attenuated connection.”

“I’m not a lawyer,” Kavanagh said. “I said it ‘could be’ illegal, but I don’t know.”

This isn’t the first time this year that a candidate in LD23 has accused an opponent of violating the law, or even the second. It began in the GOP primary, when Rep. Jay Lawrence, R-Scottsdale, and Kavanagh drew attention to minor arrests on House hopeful Joseph Chaplik’s record and past debts he had failed to pay, branding him a tax cheat.

That spiraled into a lawsuit from Chaplik accusing Lawrence of defamation and a separate suit levying the same charge against Joe Lee Romack, a write-in Republican, which in turn prompted Lawrence to accuse Chaplik and his attorney of seeking to extort him by offering to drop the lawsuit if he handed over his email list and endorsed Chaplik – all of which occurred after Chaplik had already defeated Lawrence.

Kavanagh said the Attorney General’s Office told him that election complaints must go through the Secretary of State’s Office. He forwarded his complaint to Chaplik, the other Republican running for a House seat in the district and the pcandidate who Kavanagh said he believes was most directly aggrieved.

A spokesman for the Attorney General’s Office confirmed that Kavanagh reached out and was directed to file a complaint with the secretary of state.

Chaplik could not be reached for comment on whether he pursued the complaint. However, he jumped on the faux scandal online, tagging members of the press corps October 27, in a tweet asking: “Do we want a candidate who is willing to break the law to win? How will this radical leftist lead if he’s willing to break the law now?”

In his Republican Briefs post, Kavanagh attempted to distance himself from Kurland, despite their mutual endorsement from firefighters.

“While it is true that the firefighters have endorsed me, as have three police groups, I had nothing to do with the robocall and would never have allowed it, if asked,” Kavanagh wrote. During the primary, the association endorsed both Kavanagh and Lawrence, and only decided to back the Democrat after Chaplik toppledLawrence, the incumbent.

The debacle highlights the strategy of the single-shot Democratic candidate in the surprisingly close race. Kurland, seeing an opportunity in a still-heavily Republican district, wants to highlight his willingness to work and be friendly with the GOP – he’s started filming sit-down chats with Romack, the write-in GOP candidate who lost in the primary, while Kavanagh is trying to create distance.

Polling paid for by the Kurland campaign has shown Kavanagh in first with Kurland leading Chaplik for the second seat.

“Obviously the Democrat strategy is to steer voters away from Chaplik by dishonestly associating Kurland with me,” Kavanagh wrote in Briefs. “Now more than ever we need to close ranks and vote Republican from the top of the ticket down to the bottom.”

The more votes Kurland can direct from Chaplik to Kavanagh, the more he benefits, Kavanagh added. “It’s a smart strategy, but it’s also misleading,” he said.

Siler, Kurland’s communications director, said the candidate is trying to show that he’s willing to be pragmatic.

“Obviously, it’s not a slate, it’s just a recognition that Eric, if he’s elected, is ready to work with people from across the spectrum of political ideology,” he said. “What we’re doing was never dependent on Kavanagh.”

Liberal group ignores Dem support of health care bill, attacks GOP

The political postcards began landing in swing district voters’ mailboxes nearly as soon as election administrators finished counting primary ballots.

“Arizonans are asking their elected officials to protect coverage for pre-existing conditions and make health care more affordable. But Rep. Blackman is doing the exact opposite,” one said.

“Kate Brophy McGee voted to give insurance companies the power to discriminate against people with pre-existing conditions like cancer or heart disease in Arizona,” another read.

“Anthony Kern can’t be trusted to protect our health,” a third proclaimed in all caps.

The mailers, and subsequent digital ads, are the work of liberal political action committees building on a nationwide 2018 campaign that saw Democrats take the U.S. House in large part because congressional Republicans voted to repeal the Affordable Care Act. Health care matters to voters, and the PACs spending hundreds of thousands of dollars in Arizona know that.

Claims that vulnerable Republicans voted to allow insurance companies to discriminate against people with pre-existing conditions surprised the targets of those claims, because they cite Republican votes on a new law to prohibit insurance companies from denying coverage to people with pre-existing conditions if the Supreme Court strikes down the Affordable Care Act.

The law passed with votes from 89 of the 90 lawmakers, including every legislative Democrat. And health care advocates concluded that it may not be particularly helpful because it didn’t include a group of interlocking protections in the Affordable Care Act that ensure people with pre-existing conditions are not charged more for insurance than others and that their insurance covers treatment for their pre-existing conditions.

But nothing in the new state law hurts people with pre-existing conditions, health care advocates and legislative Democrats who ultimately voted for it decided.

“It’s not doing any harm, but it’s not doing any good,” Will Humble, executive director of the Arizona Public Health Association, concluded in May.

Sen. J.D. Mesnard, R-Chandler, the author of the new law, described it as an attempt to preserve protections for the most vulnerable Arizonans, even as Attorney General Mark Brnovich and 19 other Republican attorneys general push to overturn the federal law that covers pre-existing conditions.

Now, a new digital ad in Mesnard’s district features a woman who describes herself as a military veteran and widow decrying Mesnard’s vote for the bill.

“Mesnard sold us out to the insurance companies, and now we’re in the middle of a pandemic. You’re a disgrace, J.D. Mesnard. A disgrace,” the narrator says into the camera at the end of the 30-second spot.

The digital spot was produced by Forward Majority Action, a liberal PAC that has spent more than $20,000 to attack Mesnard and nearly that much to produce ads supporting his opponent, Ajlan Kurdoglu.

“I’ve never seen such blatant fabrication of votes,” Mesnard said during a debate this week. “I know politics is a dirty business to some, but it is just a lie to say I oppose covering pre-existing conditions. I ran the bill to do it.”

Forward Majority Action is also behind a mailer targeting Sen. Kate Brophy McGee, R-Phoenix, for her vote on the same law. Brophy McGee described it as a ridiculous attack.

Not only is the new state law meant to protect people with pre-existing conditions, Brophy McGee said, it’s moot because the Affordable Care Act is still in effect — and she personally traveled to Washington, D.C., three years ago to lobby then-Sen. John McCain to keep it that way.

McCain’s now-iconic thumbs down vote that blocked an Obamacare repeal followed a meeting with Brophy McGee and a group of Arizona health care providers and business leaders who urged him to maintain the existing federal law.

“Do you remember that ‘no’ vote? I remember that ‘no’ vote,” Brophy McGee said. “So it’s like, excuse me? You’re entitled to your own opinion but not your own set of facts.”

Forward Majority Action stands behind its attack ads and doesn’t see any issues with attacking incumbent Republicans for a vote legislative Democrats also took, communications director Ben Wexler-Waite said.

The new law is significant, Wexler-Waite said, because it comes on the heels of a 2019 law to allow consumers to use short-term insurance policies designed as a way to fill an uninsured gap between jobs or as a bridge between retiring and aging into Medicare for up to 36 months. Those short-term policies, derided as “junk insurance” by critics, are cheaper than regular insurance and cover very little compared to full insurance plans provided by workplaces or sold on the individual marketplace.

Only one Democrat, Sen. Sean Bowie of Phoenix, voted for the 2019 law.

“Arizona Republicans have made this a legislative issue through both their junk insurance bill and this other sham bill that they passed this year,” Wexler-Waite said. “It’s a total sham. They’re saying that they’re protecting people with pre-existing conditions but this bill leaves people with pre-existing conditions exposed to tens of thousands of dollars in medical bills if they need treatment.”

Health care advocates and the Attorney General’s Office disagree on whether this year’s pre-existing condition law would expose patients with pre-existing conditions to price-gouging by insurance companies. The law was written to take effect only if the U.S. Supreme Court overturns the Affordable Care Act.

Oral arguments before the U.S. Supreme Court are scheduled for November 10, one week after the election.

Local elected officials face fines for opposition of Prop. 127

More than two dozen local elected officials are facing personal fines for their official opposition to a 2018 ballot measure on renewable energy.

In virtually identical letters, Evan Daniels, who heads the Government Accountability Unit of the Attorney General’s Office, told the mayors, council members, and supervisors that the resolutions they voted for expressing their opposition to Proposition 127 “constitutes a use of resources for the purpose of influencing the outcome of an election.” Daniels said that includes “supporting or opposing a ballot measure, question or proposition.” And he said that, according to the law, each violation carries a penalty of up to $5,000, plus reimbursement of misused funds.

But Daniels made each of the elected officials the identical offer: Pay a penalty of $225 to your local government and the AG’s office will consider the matter resolved. He cautioned, though, that the law spells out that the cash has to come from the elected officials personally, with no city funds or insurance payments allowed.

And there was a warning: If he does not get a response by March 15, Daniels will pursue the issue further which may then result in additional penalties.

A similar letter went to Andy Tobin, a member of the Arizona Corporation Commission, who had the agency’s communication department put out a statement in opposition to Prop 127 on his office letterhead.

Tobin told Capitol Media Services he didn’t think at the time he was doing anything wrong.

He said he was simply responding to multiple requests from reporters about what he thought of the ballot measure which would have required commission-regulated utilities to generate half their electricity from renewable sources by 2030. That compares with the commission’s current goal of 15 percent by 2025.

Tobin already had crafted his own plan with an 80 percent renewable energy goal by 2050 but one that, unlike the ballot measure, allowed for the use of nuclear energy.

But Tobin said Tuesday he intends to put the issue behind him.

“I believe that the attorney general was doing his job,” he said. “I’m going to apologize and write a check and beg everyone’s forgiveness.”

In his case, however, state law requires the money to be paid to the Attorney General’s Office rather than back to the commission.

The focus on the local officials stems from a complaint filed by Ken Clark, then a Democrat state representative from Phoenix, saying that employees of Arizona Public Service had been “badgering” county and local officials and their staffs with requests to adopt formal resolutions opposing Proposition 127. The watchdog Energy and Policy Institute, through public records requests, also said it found several instances where APS officials sought to make presentations on the initiative to local lawmakers.

Clark, in his complaint, argued that violated laws about influencing elections.

“Those laws were designed to keep special interests from usurping public dollars for a private purpose – that is, to amplify support or opposition to purely campaign matters,” he wrote.

The complaint against Tobin had a different genesis, having come from fellow commissioner Bob Burns.

He acknowledged that Tobin is allowed to speak with reporters and answer questions asked of him by reporters about energy issues. But Burns said that “is not the same as using the commission’s resources to basically take a position, and a public position.”

The initiative went down to defeat, with Pinnacle West Capital Corp., the parent company of APS, putting more than $32 million of its own cash into the effort. Other utilities contributed much smaller amounts.

Virtually all of the close to $20 million spent to get the measure approved came from California billionaire Tom Steyer.

Chino Valley:

Mayor Darryl Croft

Vice mayor Lon Turner

Council member Mike Best

Council member Cloyce Kelly

Snowflake:

Mayor Lynn Johnson

Council member Kerry Ballard

Council member Allison Perkins

Council member Hunter Lewis

Council member Byron Lewis

Council member Cory Johnson

Council member Greg Brimhall

Pinetop-Lakeside:

Mayor Stephanie Irwin

Vice mayor Jerry Smith

Council member Carla Bowen

Council member Kathy Dahnk

Council member Cathy Penrod

Council member James Snitzer

Navajo County:

Chairman Steve Williams

Jess Thompson

Jason E. Whiting

Dawnafe Whitesinger

Greenlee County:

Chairman Richard Lunt

David Gomez

Ron Campbell

Gila County:

Tim R. Humphrey

Woody Cline

Tommie C. Martin.

(List from AG’s office)

Public corruption tough to prove without smoking gun

Ask any prosecutor what their favorite kinds of cases are, and you’d likely get a similar answer: public corruption.

Arizona Attorney General Mark Brnovich is no different, according to his spokesman, Ryan Anderson.

“Nothing would make him happier than to be able to prosecute an elected official who has broken the law, regardless of their political party,” Anderson said.

A record of investigations by the Arizona Attorney General’s Office under Brnovich’s tenure reveals those cases are far from simple. While Brnovich has had some success seeking charges or court ru- lings against elected officials at the highest levels of state government, recent investigations show how nuanced filing charges can be, and how decisions about when to prosecute, or not, can hinge on quirks in statute.

Brnovich has investigated fellow Republicans, such as former Secretary of State Michele Reagan, former House Speaker David Gowan and most recently, former state Rep. Todd Clodfelter, who the Secretary of State’s Office alleged was violating the law by lobbying shortly after he left elected office. None was charged. The same can be said for some Democrats, such as former state Sen. Catherine Miranda, who was referred to the Attorney General’s Office for investigation by the Senate Ethics Committee.

Each lawmaker’s alleged misdeeds – and in some cases, verifiable wrongdoing – are vetted by career prosecutors under Brnovich, who isn’t interested in engaging in “political witch hunts,” Anderson said.

“There are cases in which I think we would’ve loved to charge people because we think there are individuals who are maybe exploiting the system or taking advantage of the system,” he said. “But the burden of proof for criminal prosecution is so high that you don’t just indict people for the sake of headlines or for the sake of hoping that maybe, crossing your fingers, it’ll stick with a jury.”

Balls and Strikes

Former top prosecutors at the state and federal level agree that decisions about when to prosecute public corruption cases, and when not to, reflect how difficult those cases are to bring before a jury.

“I think they are generally calling balls and strikes based upon the facts,” Paul Charlton, a former U.S. Attorney for Arizona, said of the state Attorney General’s Office. Cases are easiest to prosecute “where the evidence is very clear as it relates to a quid pro quo,” he added.

Without clear cut evidence – for example, videotapes in the 1991 AzScam case of Republican and Democratic lawmakers accepting payments and bribes from undercover investigators – even high profile cases of corruption can be challenging to prove before a jury.

“History is replete with high profile corruption cases that end up badly for the government because juries want to see what they read about in books, in novels or what they see on television: They want to see the cash handed to the politician, and they want to see the politician agreeing to do something inappropriate,” Charlton said. “Juries want and expect clear evidence that ensures a quid pro quo, and that kind of evidence is difficult to find.”

Absent that kind of evidence, it’s tough for prosecutors to convince a jury of malicious or criminal intent. Such was the case with Gowan, who Brnovich investigated in the wake of detailed reports in the Arizona Capitol Times in 2016 of the former speaker’s misuses of state resources.

Brnovich found a “systemic breakdown” of checks and balances at the House, where Gowan had wrongfully been reimbursed for trips he’d taken in state vehicles, and for claiming per diem on days he’d claimed to work but didn’t.

But Brnovich found no criminal wrongdoing – or at least, not a strong likelihood that charges against Gowan would lead to a conviction in court.

“Just because something may be unethical or even troublesome, it doesn’t mean that it rises to a level of criminal conduct, and I think that’s what happened in this case,” Brnovich said in 2017.

Put another way, “we could never prove that Gowan had intent associated with what he did,” Anderson said.

Former attorney general Terry Goddard, a Democrat, said it’s difficult to convince a jury of criminal behavior without being able to prove criminal thought.

“When its negligence or incompetence, that’s a whole lot harder to show a guilty mind, and a guilty mind is an important part of a successful prosecution,” Goddard said.

No Evidence

Other investigations by Brnovich have found some level of wrongdoing by elected officials, but quirks in the law have left the Attorney General’s Office with no path for holding those officials accountable in court.

In the case of Reagan, the then-secretary of state violated the law when she failed to mail information pamphlets to some 200,000 voters by a set deadline before the 2016 election.

An outside investigation appointed by Brnovich later found no criminal violations by Reagan or her staff, despite the clear violation of statute dictating her duties as secretary of state. That’s because the investigators found that Reagan and company made an honest mistake, and did not “knowingly fail to perform” their election-related duties.

“Incompetence, ineptness, are not necessarily criminal offenses that mean you need to be thrown in jail,” Anderson said. “They’re not defenses of the law, but a lot of what we’re looking at here in the cases we’re talking about – not all of them, but a lot of them – are failures of elected officials to live up to their responsibilities as public officials.”

Anderson said there was another wrinkle to the investigation: There’s no penalty in statute for violating the particular law that Reagan, as secretary of state, broke.

At the time, Brnovich criticized the Legislature for writing the law in such a way that there’s no penalty for missteps such as the one Reagan’s office made.

Clodfelter, the most recent example of an elected official investigated by the Attorney General’s Office, appeared to be violating a law preventing former legislators from lobbying for up to one year after they leave office. Evidence sent to the state attorneys by Elections Director Bo Dul showed Clodfelter and his wife, the founders of the lobbying firm Tag Team Strategies, had been active at the Capitol to sway legislation on behalf of their client, a cosmetology association.

Top prosecutors under Brnovich didn’t disagree, but found that while Clodfelter was lobbying, there was no evidence that he’d been directly paid for that work.

Though Clodfelter claimed income from Tag Team Strategies in 2017 and 2018 on financial disclosure statements, a series of 2019 bank statements show that the firm paid Clodfelter’s wife, not the former lawmaker.

“While we believe Mr. Clodfelter was engaged in some form of lobbying, the statute explicitly prohibits lobbying for compensation. After a thorough review of Tag Team’s bank records and answers provided by Mr. Clodfelter’s legal representative, there was no evidence that Mr. Clodfelter was compensated for his work,” Katie Connor, a spokeswoman for Brnovich said.

Anderson said Brnovich has to interpret the law the way it was written. If anyone isn’t satisfied with the results, the Legislature can always change the law.

“We have a toolbox, and we can only work with the tools that we’re given,” Anderson said.

Smoking Gun

Brnovich has had some successes, most notably a 2015 case against Susan Bitter Smith, the former chairwoman of the Arizona Corporation Commission.

Brnovich petitioned the state’s Supreme Court to have the then chairwoman ruled ineligible to hold office, citing her ties to Cox Communications and the Southwest Cable Communications Association – companies the Corporation Commission is responsible for regulating – as evidence that Bitter Smith was disqualified from office.

Bitter Smith resigned roughly two weeks after the Supreme Court granted Brnovich’s motion to consider the case.

Brnovich later closed the case. Mia Garcia, the AG’s spokeswoman at the time, said the office was primarily investigating a criminal breach of the state’s conflict of interest statute, as attorneys in the attorney general’s criminal division determined there was “insufficient evidence” to bring a criminal case against Bitter Smith.

Anderson pointed to cases at the local level, an area Goddard highlighted as rife for cases involving misuse of government property for personal gain.

For example, a Brnovich lawsuit prompted a superior court judge to rule that a Window Rock school board member must resign for failing to meet the qualifications to serve in elected office, and the AG’s Office pursued felony theft charges against a former mayor in Florence.

Those cases had the type of evidence that Charlton said are essential to convincing juries of public corruption – a “smoking gun,” Anderson said.

“Those are different because in the cases where we’ve done that, we have found real crimes where people have embezzled, stolen money,” Anderson said.

“If the evidence is there, and there is an actual likelihood of conviction – and I don’t mean 100 percent – if there is a real likelihood of conviction, we’re going to pursue the case,” he later added.

Court of Public Opinion

Even when Brnovich decides not to prosecute an elected official, the attorney general has taken another tactic to hold those officials accountable: Public shaming.

In the case of Reagan, Brnovich didn’t mince words about the secretary of state’s handling of the pamphlet-mailing incident at a May 2016 press conference, telling reporters he was “pissed off” at the “complete fiasco” created by Reagan and her staff.

“I don’t know what the right word to express it. But it pisses me off, as an Arizonan, as the attorney general,” he said.

As for Gowan, Brnovich’s details of the investigation noted that the former spea- ker’s receipt of reimbursements for travel and per-diem payments were “troublesome,” though not criminal.

“The investigation has shown that there was a substantial disregard for determining whether state funds for per diem, mileage, and official travel were paid pursuant to proper authority, acts which could be potential felony violations (of state statute),” Brnovich wrote in a 2017 memo.

Goddard said Brnovich’s use of “public chastisement” is a common tool among state attorneys general, particularly when it came to the attorney general’s comments about Reagan.

“To have him say that about a statewide elected official is pretty powerful stuff,” Goddard said, and it was arguably detrimental to Reagan’s election chances, despite her avoiding prosecution.

Anderson said it’s a useful tool for Brnovich in those particular cases where public officials fail to live out to their elected responsibilities in not necessarily criminal ways. And it matches the attorney general’s personality, he added.

“The public, I think, is frustrated with a lot of the representation that they receive today from their elected officials” from the highest levels of state government to local leaders, Anderson said. “I think that Brnovich shares a lot of that frustration.”

Brnovich is cognizant of using the “bully pulpit” of his office as an elected official, not just the state’s top attorney, to call it as he sees it, Anderson said.

“There’s the trial in the courtroom and there’s the trial of public opinion.”

Report: Johnson Utilities owner threatened town manager with violence

George Johnson (Photo by Jake Kincaid/Pinal Central.com)

The Florence town manager told police that the owner of Johnson Utilities threatened last year to cut his throat.

Newly released documents Thursday show that Brent Billingsley told police he got a call June 8 from George Johnson as the town manager was documenting utility company trucks leaking possibly contaminated materials on Diversion Dam Road. Billingsley said that lab results showed the spillage “has identical bacteria components to raw sewage.”

What followed, the police report says, was Billingsley getting a call from Johnson saying, “I’m tired of you sons of bitches,” and that “I’m going to cut your f—ing throat.”

Johnson, for his part, denied any such conversation.

“I’m a business person,” he told an investigator for the Attorney General’s Office, which took over the probe.

“I don’t go around threatening people,” the report quotes him, saying Johnson called Billingsley a liar. But he declined to answer further questions without an attorney, later supplying a written affidavit invoking his right to remain silent.

The case was dropped after a lawyer from the Attorney General’s Office pointed out the call was not recorded and there were no other witnesses.

“There is no corroboration regarding the threat and thus there is no reasonable likelihood of conviction in this case,” wrote Assistant Attorney General Adam Schwart. But the documents, including the police report, were not released until Thursday.

Billingsley previously told PinalCentral.com that he respects the attorney general’s decision but stands by the original statements he made to police.

The incident occurred even as Johnson and others were on trial in federal court on charges of bribery and fraud. That case ended in a mistrial when jurors could not reach a verdict; federal prosecutors decided against a new trial.

But the reports by police and the attorney general suggest that other more specific incidents led to whatever happened.

At the time the town was an intervenor in a case before the Arizona Corporation Commission where utility regulators were trying to determine whether to place an interim manager in charge of Johnson Utilities which supplies water and wastewater services for San Tan, Florence and Queen Creek homes and businesses.

A commission hearing officer had recommended the panel take control of the company and install its own interim manager.

She said the company “failed to provide service and equipment that is in all respects just, reasonable, safe, proper, adequate and sufficient.” And the hearing officer said some of that is due to the failure of the company to spend the money necessary for repairs and equipment.

Florence and Queen Creek made a joint bid to take over but the commission eventually awarded the contract to EPCOR.

But what appears to have been the triggering factor was the concern of Florence officials that Johnson Utilities was spreading sludge from its sewage treatment plants onto public property.

Billingsley told police that he was investigating contamination and was taking photos of the sludge process when a driver of one of the Johnson Utilities tractors drove near the fence line and started to take pictures of him and his marked town vehicle.

The call, according to Billingsley, started with Johnson asking “do you have a problem with me putting sludge on my land?” The town manager said he responded that “we just want to make sure that it is going on your land.”

That, Billingsley said, led to Johnson saying, “I’m tired of you sons of bitches. I’m going to cut your f—ing throat. I’m going to find out where you live. I’m going to take your house. I’m going to sue your asses off,” before Johnson hung up.

Billingsley told police he thought the threats were serious, which is why he wrote down the comments.

Town police initially sought to hand the case off to the Pinal County Sheriff’s Department given the potential conflict of interest of the case given the ongoing dispute between Johnson Utilities and the town over the appointment of an interim manager. It eventually wound up with the Attorney General’s Office.

Republicans file more lawsuits to challenge vote

The sun sets at a local polling station Tuesday, Nov. 3, 2020 in Tucson, Ariz. (AP Photo/Ross D. Franklin)

With the tally of votes now showing Joe Biden winning Arizona, the state Republican Party and its allies are trying last-minute legal tactics to keep that from happening.

Two new lawsuits come as the former vice president on Friday had a lead of 10,998 votes over Donald Trump. More to the point, the Secretary of State’s Office says there are just 6,670 ballots yet to be counted.

Meanwhile, the president’s reelection campaign agreed Friday to drop its demand for a hand count of certain ballots cast at polling places on Election Day to see if they were properly recorded. Attorney Kory Langhofer told Maricopa County Superior Court Judge Daniel Kiley that with just 191 ballots at issue, the latest vote tallies makes the outcome of that claim moot.

Despite that decision — and despite the vote tallies that show there just aren’t enough uncounted ballots for Trump to catch up — state GOP Chair Kelli Ward insists this isn’t the end.

“We are getting close to recount territory here,” she said Friday in a video message.

Kelli Ward (Photo by Gage Skidmore/Flickr)

That is debatable given that state law would appear to require Trump to be within 200 votes of Biden to trigger a new count.

But the two new lawsuits are the best — and perhaps only — chance that the president has to getting close to that margin and taking the state’s 11 electoral votes.

One contends that Maricopa County is not complying with state laws which require there be a hand-count audit after each election to ensure that what was recorded by the voting machines matches the ballots that went into them.

That was done with no irregularities found.

But attorney Jack Wilenchik, representing the Arizona Republican Party, says state law requires that the sample has to be done of at least 2% of all the precincts. In Maricopa County, he said, with 748 precincts, that would require checks at 15 separate precincts.

Only thing is, Maricopa County uses “voting centers” rather than requiring residents to cast a ballot at the specific precinct in which they live. This year, Wilenchik said, there were about 175 of these.

And what that means, he said, is that an audit of 2% of 175 voting centers is not sufficient, regardless of how many people voted at each one.

While the GOP is suing only Maricopa County, the lawsuit also could affect Yuma, Yavapai, Santa Cruz, La Paz and Cochise counties. which also use vote centers.

In a separate lawsuit, attorney Alexander Kolodin charges that Maricopa County — and presumably all others — have no specific way to determine whether a given voter’s choices were properly counted.

That goes to the question of what happens when a ballot is not automatically accepted and read by tabulating machines at polling places, whether because of problems with the equipment or other issues. These instead are set aside for hand review at county offices.

Attorney Alexander Kolodin charges that one of the women he represents — the same who brought the never-proven claim about how the use of Sharpies and bleed-through on ballots was affecting the count — never had her vote counted at all. And he said his other client, whose ballot had to go through separate review was denied the right to have her vote “counted via a fully automated and perfect process,” as were others in a similar situation.

There was no immediate response from attorneys for the county to either lawsuit.

Time is running out.

The state is supposed to certify the election results on Nov. 30. And the electors who will cast their ballots for who won the majority in the state are supposed to be appointed by Dec. 8.

Hearings in both cases are set for Monday.

The legal maneuverings fit into what has been the position of Trump and his supporters that there has been something amiss about the voting process this year.

“Arizona voters deserve complete assurance that the law will be followed and that only legal ballots will be counted in the 2020 election,” Ward said.

That mirrors repeated comments of the president himself who has insisted he will win if only the “legal votes” are counted, not just in Arizona but elsewhere.

But none of this will matter unless any of the lawsuits result in orders that get more votes tallied and bring Trump within recount territory.

State law does require a recount when the difference between candidates is less than 0.1% of the votes cast for the office. At this point, that would be about 3,400.

Arizona elections officials carry ballots in trays to be counted inside the Maricopa County Recorder's Office, Friday, Nov. 6, 2020, in Phoenix. (AP Photo/Matt York) — Arizona elections officials carry ballots in trays to be counted inside the Maricopa County Recorder’s Office, Friday, Nov. 6, 2020, in Phoenix. (AP Photo/Matt York)

But there is a separate provision governing any race for “state electors,” which is technically what people who were voting for Trump, Biden and Libertarian Jo Jorgensen was choosing. That figure is just 200.

Despite that, state GOP spokesman Zach Henry said the outstanding votes plus “ongoing litigation in the courts” should be enough to force that recount.

Wilenchik’s contention that audits done by voting centers is illegal already is getting some legal pushback.

In letters to legislative leaders, Joe Kanefield, the chief deputy state attorney general, pointed out that lawmakers specifically allowed counties to operate centers. And Kanefield, himself a former state elections director, said the statutes left it up to the secretary of state to come up with specific rules for how to conduct these audits.

That, he said, was codified in the Election Procedures Manual which specifically allows audits of 2% of vote centers. And since that manual was approved by both Attorney General Mark Brnovich, who is Kanefield’s boss, as well as Gov. Doug Ducey, both of whom are Republicans, it could mean that the state party is now picking a fight with its top elected officials.

Wilenchik does not dispute that the hand counts already done by the county of the vote centers, which are chosen jointly by Democrat and Republican party officials, have showed no discrepancies between the recorded tally and the hand count. But he said what’s needed to truly check the veracity of the vote is that precinct-by-precinct breakdown.

“It makes it easier to sort the data that comes out of the sampling, to compare it with the voter registration database data,” he told Capitol Media Services, figures that are broken down by precinct. That, Wilenchik said, ensures that there aren’t more ballots being counted than people who actually are supposed to have voted at that location.

“If instead they do the sampling based on the vote centers, that’s sort of worthless to us because we can’t sort that data,” he said. “The voter registration data is not based on vote centers.”

Wilenchik conceded that state law does specifically allow for vote centers. And he said he did not know how a county would then organize the already cast ballots by precincts — as he contends is required for the post-election audit.

He said it’s possible that the ballots are in some way encoded to show to which precinct a voter was assigned.

And if not?

“Then count all of them,” he said. Wilenchik said it can’t be that hard, pointing out that’s exactly what’s taking place in Georgia for the presidential race.

Even if Trump can’t be aided by the litigation, any adjustment of votes could make the difference in some down-ballot races like the one for state Senate in LD 28 where incumbent Republican Kate Brophy McGee is 495 votes behind Democrat challenger Christine Marsh.

Republican’s canvass flawed, experts say

A months-long “independent” canvassing effort in Maricopa County culminated in an 11-page report that made big claims about “ghost” voters and lost votes.

But problems were evident from the first page.

“When it comes to the integrity of the data presented, look no further than the cover page of the report which can be easily disproven,” pollster Mike Noble with OH Predictive Insights said.

Unsuccessful state legislative candidate Liz Harris led volunteers in canvassing shortly after the election as part of her “Voter Integrity Project.” Folks signed up to volunteer on the website itsmellsfunny.com.

Although Harris was an early advocate for what would become the Arizona Senate’s audit of Maricopa County 2020 general election results, the canvassing was not an “official” part of the audit.

In May, Senate President Karen Fann, R-Prescott, paused any official canvassing after the U.S. Department of Justice sent a letter raising concerns about voter intimidation.

“This is something that she did on her own with apparently hundreds, if not thousands, of grassroots people,” Fann said. “It was not, as you know, through our audit. We had told the DOJ that we had suspended any canvassing indefinitely.”

The Senate’s contractor, Cyber Ninjas, initially included canvassing in its statement of work and professed to have already gone door-knocking ahead of the Senate’s review. They said the already completed canvassing effort “brought forth a number of significant anomalies suggesting significant problems in the voter rolls,” though did not provide specific examples. The Cyber Ninjas’ full review report has not been released, with a delay attributed to three members of its audit team testing positive for Covid.

Fann said Wednesday she had not yet read Harris’ report but was eager to do so.

“I am going to obviously suggest that she send that report to our attorney general because that’s what we’re going to do with our audit information,” Fann said, adding that she thought the canvassing efforts would help the Attorney General’s Office “get to the bottom of some of the issues that’ve been coming up.”

But elections experts and pollsters took issue with Harris’ report, starting with the cover.

The front page purports to show a vacant lot supposedly connected to two mail-in votes.

But the lot isn’t actually vacant, as ABC 15 reporter and former state election employee Garrett Archer noted on Twitter. An aerial map available online at the Maricopa County Assessor’s website includes a photo of the lot, which houses a single-family home.

Harris’ crew later changed the photo to another parcel, but Archer noted that a valid registered voter lived at the address as of December 2019 as well and the U.S. Postal Service forwards mail for one year.

The canvass report claims there were 173,104 “lost” votes and 96,389 “ghost” voters based on data it gathered from a smaller sample size. It stated that canvassers attempted to contact 11,708 voters, but interviews “yielded data on 4,570 registered voters.”

The disappearing vote claim is based on interviews with 964 individuals that “were registered to vote in Maricopa County but whom the county said did not vote,” according to the report. “Of those 964, 34.23%, or 330 people, said they had actually voted.”

The canvass team used that figure to estimate that, of the 2.6 million total voters in Maricopa County, “173,104 voters had their votes stolen.”

The report’s other primary claim is that 96,389 mail-in votes were “cast under the names of registered voters who were either unknown to the residents of the registration address or who were verified as having moved away prior to October 2020.”

Noble said the report lacked transparency, “aside from a few Microsoft Excel tables.”

“Survey work is an art form as much as it is a science and you have to be careful when extrapolating these canvass numbers,” he added.

In an open letter to fellow Arizona Republicans, Maricopa County Recorder Stephen Richer said Harris claimed when the two met on May 18 that many voters did not actually live where they were registered.

“These issues have very straightforward possible explanations, but I asked Harris to send me examples such that I could investigate her concerns. She never sent examples,” Richer wrote.

Tammy Patrick, former federal compliance officer for the Maricopa County Elections Department, said the report’s claims were based on inevitably flawed data.

“The challenge is that if they’re basing their information on what someone tells them at their front door, they are not going to have correct information for a variety of reasons,” Patrick said.

Patrick is now a senior adviser to the elections program at the Democracy Fund, a nonpartisan foundation that advocates for the U.S. democratic system. She said that someone answering questions at their door months after the election isn’t necessarily going to remember how or when they voted.

“It’s very difficult to get an accurate assessment of an election based on door-to-door canvassing, just due to the various types of research challenges in that sort of methodology, whether it’s reporting bias or fulfillment bias or whatever – there are a variety of technological terms that point to why this is a very bad and unscientific way of getting to any sort of truth,” Patrick said.

She said that there are also legitimate reasons, such as military duty outside of the country, why people might be registered at a home they’re not currently residing in.

“For them to say that, ‘We knocked on the door of a house and they’ve never heard of the name … there’s a lot of people who move frequently in Arizona,” Patrick said. “That doesn’t mean that the ballot that that individual cast was not eligible to be cast.”

Patrick also noted that mail-in voting, which Harris’ report recommended doing away with completely, has long been the preferred method of voting in Arizona with few complaints until the most recent election

“For the last three decades, it’s been the case that Arizonans have liked to vote by mail,” she said. “Now, in this moment, they have a single election where they’re unhappy with the outcome of that race, and they’re trying to use it to call into question.”

Senate confirms Susan Brnovich as federal judge in Phoenix

Arizona has a new federal judge after the U.S. Senate confirmed Maricopa County Superior Court Judge Susan Brnovich for a seat on the U.S. District Court in Phoenix.

Brnovich was confirmed on a voice vote Thursday. She is the wife of Arizona Attorney General Mark Brnovich and served as a state-level judge since 2009. President Donald Trump nominated Brnovich and chief assistant U.S. attorney for Arizona Dominic Lanza as U.S. District Court judges in January.

Lanza was confirmed by the Senate last month.

Prior to serving as a Superior Court judge, Brnovich was a court commissioner and a county prosecutor. She earned her law degree at the University of Wisconsin-Madison.

Lanza was in private practice for five years before becoming a prosecutor. He earned his law degree at Harvard.

Supreme Court to weigh mask mandate ban

The Arizona Supreme Court has agreed to hear arguments about whether the ban on mask mandates at public schools was legally enacted.

And the justices agreed to do it relatively quickly.

In a brief order, the court set a hearing for Nov. 2 on the bid by Attorney General Mark Brnovich to overturn a Sept. 27 ruling by Maricopa County Superior Court Judge Katherine Cooper that the provision in a new state law blocking schools from making these decisions was approved in an unconstitutional manner.

The move means that Brnovich won’t have to first make his case to the Court of Appeals that Cooper’s ruling, which could forever change how legislation is enacted, overstepped her authority. And the fact is that the case eventually would have wound up with the high court as whoever lost at the appellate level would have sought review.

But the expedited briefing schedule and the Nov. 2 hearing is a setback for attorney Roopali Desai, who represents the education groups and their allies who first sued and got Cooper to rule in their favor. She had wanted more time to prepare her arguments for the justices, as whatever they rule will set new legal precedents and could change forever how legislation is adopted.

A normal court schedule would give her 30 days to respond to the state’s arguments.

Instead, the justices told Brnovich to file his arguments by Tuesday, giving Desai a week after that to respond. And others who want to weigh in have to submit their briefs by Oct. 15.

The justices also made it clear they don’t want to be buried in legal arguments. They limited each side’s opening legal briefs to no more than 5,000 words, about a third of what attorneys normally are allowed to file.

In some ways the decision to expedite was expected.

The court previously has spurned Brnovich’s arguments that, given the nature of the dispute and the effect on legislation, it should immediately put Cooper’s ruling on hold. The Nov. 2 hearing date guarantees a decision by the high court by the time lawmakers reconvene in January.

Hanging in the balance is the future of the practice of lawmakers to put various apparently unrelated changes in state law into a package of what they call “budget reconciliation bills.”

Desai charged — and Cooper agreed — that the practice at the very least violates a constitutional requirement that the title of a measure reflect what is in it so as to inform not just lawmakers but the public.

The judge noted, for example, that a bill titled as dealing with budget reconciliation for K-12 education also included a restriction on how schools can teach about race and gender, authorized lawsuits against public employees for conduct related to public schools, as well as making it illegal for school boards to require students and staff to wear masks while on campus.

“What do these measures have to do with the budget?” Cooper asked.

The judge also voided all or part of three other measures for similar reasons.

Assistant Attorney General Michael Catlett, arguing for Brnovich, contends that it is up to lawmakers to decide what is relevant to a bill. And he said that courts are powerless to tell a separate branch of government how to operate.

Cooper, however, said she is not telling lawmakers what to approve but instead determining if they acted in accord with the Arizona Constitution.

“Whether the legislature complied with the requirements of (the Constitution) and whether a provision is reasonably related to ‘budget reconciliation’ are questions properly before the court,” she wrote.

The reconciliation bills have often been used for “logrolling,” putting unpopular changes in law into a single package that forces legislators who want another provision to have to support because of the take-it-or-leave-it nature.

That is precisely what happened earlier this year after lawmakers refused to approve a bill that proponents said prohibits the teaching of “critical race theory.”

For example, it would bar teaching that someone is inherently biased due to their ethnicity, race or sex, or that an individual should feel discomfort, guilt or psychological stress because of any of the same factors.

But it became part of the larger K-12 budget reconciliation bill, a measure that, aside from the ban on mask mandates, also included changes in state aid formula for schools that many legislators support.

If the Supreme Court upholds Cooper’s ruling, that practice would have to come to a halt.

It isn’t just the Republican lawmakers who control the House and Senate who want the high court to void the decision. Her ruling also drew fire from Gov. Doug Ducey, who supported the changes like the ban on school mask mandates, who called Cooper a “rogue judge.”