Court reluctant to enforce Senate subpoenas

Jack Sellers, left, chairman of the Maricopa County Board of Supervisors, and Deputy County Attorney Tom Liddy show up at the Senate Wednesday morning after getting less than 24 hours to respond to a new subpoena which Liddy is holding demanding a trove of documents and access to voting equipment. They brought none of that along as litigation continues. (Capitol Media Services photo by Howard Fischer)
Jack Sellers, left, chairman of the Maricopa County Board of Supervisors, and Deputy County Attorney Tom Liddy show up at the Senate Wednesday morning after getting less than 24 hours to respond to a new subpoena which Liddy is holding demanding a trove of documents and access to voting equipment. They brought none of that along as litigation continues. (Capitol Media Services photo by Howard Fischer)

State senators won’t get the trove of election materials they are demanding, at least not yet – if ever.

Maricopa County Superior Court Judge Timothy Thomason said January 13 that it appears the original subpoenas issued by Senate President Karen Fann and then-Sen. Eddie Farnsworth, R-Gilbert, are probably moot. That’s because they were issued in December as part of the 54th legislative session which technically ceased to exist on January 11.

In fact, Farnsworth is no longer a state senator.

But Thomason noted that Fann and Sen. Warren Petersen, who succeeded Farnsworth as chair of the Judiciary Committee in the new 55th legislative session, issued a new subpoena on January 12 demanding not just the same documents but even more, including access to “all original paper ballots.” And the subpoena wants access to the county’s voting equipment and software.

Jack Sellers, the new chairman of the Maricopa County Board of Supervisors, did show up at 9 a.m. January 13, at the Senate, as the new subpoena ordered. So did newly elected County Recorder Stephen Richer and new County Treasurer John Allen.

But they brought none of the materials with them.

Thomason said that new subpoena likely requires the county to file new legal briefs. And he set a hearing for January 20 to consider the matter, saying he hopes the two sides can work things out.

But the prospects of that happening are unclear.

The big problem for the Senate could be convincing the judge he actually has the authority – and should – order the county to comply.

“If timing is an issue, why can’t the senators simply enforce their own subpoenas?” Thomason asked. “They have the statutory power to do that.”

“They can,” conceded Kory Langhofer who is representing the Senate. “And I will tell you, there’s a real possibility of that.”

That, however, raises different legal and practical issues.

State law empowers either the House or Senate to hold someone in contempt. But that requires a vote of the full chamber, meaning that it would take all 16 Republican senators to go along if Democrats refuse to support the move.

If they can get a contempt vote, the law allows the Senate president to send out the sergeant-at-arms to physically arrest the person who has refused to comply.

In fact, disobeying a subpoena is as crime.

But even with that, it still doesn’t guarantee the Senate actually would get what it wants, even if someone is jailed. That’s why Langhofer wants Thomason to order the county to comply.

Thomason, however, notes that Langhofer is relying on a section of Arizona law that allows a public officer “authorized by law” to issue subpoenas and demand production of evidence. That same law allows the official to then ask a judge to intercede to compel compliance.

Only thing is, Thomason said he’s not necessarily convinced that applies to legislative subpoenas or that he has the power to enforce them.

Legal authority aside, Steve Tully, who represents the county supervisors, told Thomason they still believe there is no “valid legislative purpose” behind the subpoenas and the whole Senate inquiry.

Langhofer acknowledged that one reason for the original subpoenas – there were two at the time – was to audit the equipment to send information to Congress ahead of its January 6 vote on whether to certify the results from Arizona giving the state’s 11 electoral votes to Joe Biden.

“That’s water under the bridge,” Langhofer said, given that Congress did accept the Arizona results and Biden will be sworn in January 20.

But Langhofer said that’s not the end of the discussion.

“Always, separate from that, was an independent reason of performing their oversight function to see how elections in the state were run and whether additional legislation is necessary,” he told Thomason.

Langhofer said lawmakers want to see what happened to determine if there are changes needed in state election laws, something that is strictly the purview of the Legislature.

For example, he said lawmakers want to know if there were tabulation errors, unlawful ballots cast or security vulnerabilities in voting devices.

“Could legislative reforms decrease the risk of mistakes or anomalies in future elections?” Langhofer asked in a separate legal filing. “Is the Maricopa County Board of Supervisors a competent administrator of elections in Arizona’s most populous county, or should the Legislature consider assigning these vital responsibilities to a more qualified regulatory authority?”

Tully, however, said the Legislature tipped its hand when it admitted it wanted the materials and access to the equipment to see if it could affect the outcome of the vote.

“He issued those subpoenas to audit the election,” Tully said of Farnsworth. “And that is not a legal power that is granted to the chairman.”

Beyond that, there are legal questions.

Deputy County Attorney Tom Liddy said one of these involves the security of those 2.1 million actual original paper ballots. He told the judge they can’t simply be turned over to senators as there are legal constraints on who has access to them.

There also is the issue of who will be doing the examination of the voting equipment.

The new subpoena, served on the supervisors, the county recorder and the county treasurer at 4:10 p.m. on January 12, “commanded” that they appear at the Senate by 9 a.m. January 13, and provide the materials sought as well as provide testimony to the Judiciary Committee.

That 9 a.m. deadline also was the time that the hearing before Thomason began two miles away.

“That’s bush league,” said Liddy.

Only thing is, there was no meeting of the committee on January 13.

“Either they don’t know what they’re doing or somebody’s playing games,” said Liddy. But he said the officials showed up because “we respect the power of the Senate.”

What resulted, Liddy said, was a brief meeting with Senate staffers – and no questions.


Senate to resume Tuesday to vote on House bills


State senators return to the Capitol on Tuesday with the goal of finally finishing out the on-again off-again session that began in January.

But it remains to be seen whether there are the votes for — or even the interest in considering — two last-minute measures approved Thursday by the House before it shut down its session.

The more controversial of these, HB 2912, would limit the liability of businesses facing lawsuits from patrons and customers who claim they contracted COVID-19. It would require them to prove not just that the business was negligent in its operations but that that it was grossly negligent — essentially that there was a conscious and voluntary disregard for reasonable standards of care.

But it’s not simply a matter of lining up the necessary 16 votes. There’s also a procedural issue.

Karen Fann
Karen Fann

Senate President Karen Fann, R-Prescott, said she is looking to wrap up all unfinished business on Tuesday.

Only thing is, Senate rules require that any bills that arrive from the House go through a formal process.

That includes a mandate to read all bills three times — on three separate days. That would drag the process into Thursday.

And patience may be running out for senators, who voted 24-6 earlier this month to say they were ready to go home.

That same problem exists for HB 2913.

It would provide authorization for the state to spend $88 million it is getting to provide forgivable loans to child care facilities. But it, too, needs three readings.

What could be done in one day, Fann said, are 28 House-passed measures that already have been through the first two readings and could be acted on immediately. Fann also said she has weeded through these and eliminated any that might stir up controversy.

That’s not to say that all legislative business is done for the year or that the liability protections and child care measures are dead if they don’t get a vote on Tuesday.

Fann said she is anticipating a special session focused on issues limited to the fallout and reaction to the pandemic that has crippled segments of the Arizona economy. And that, from her perspective, includes some liability shields for “mom-and-pop businesses” that reopen and follow guidelines of the Centers for Disease Control and Prevention for things like distancing and sanitation.

“If someone were to come in later try to claim they got COVID-19 going into their business … then the small business owners is having to defend all these potentially frivolous cases,” Fann said.

Some of that may take care of itself now that Gov. Doug Ducey has lifted some of the restrictions he placed on businesses, including the closure orders. But they continue to have to operate in a limited fashion, including “social distancing” requirements that have effectively capped the number of customers who can go into everything from grocery and hardware stores to bars, restaurants and, when they reopen, movie theaters.

The question for senators whenever they take up the issue is whether the lawsuit protections approved by the House are too broad.

It contains no specific “safe harbor” to protect businesses that comply with CDC standards, one of the things Fann said she wanted. Instead, it contains the requirement to prove gross negligence to be able to sue for damages.

“I haven’t had a chance to go over the bill,” Fann said Friday, saying she will be reviewing it over the weekend.

Other Republicans, like Sen. Paul Boyer, also told Capitol Media Services they have some questions about raising the standard to sue to gross negligence.

Sen. Eddie Farnsworth, R-Gilbert, at a town hall in 2014 (Photo by Gage Skidmore/Flickr)
Sen. Eddie Farnsworth, R-Gilbert, at a town hall in 2014 (Photo by Gage Skidmore/Flickr)

Sen. Eddie Farnsworth, R-Gilbert, who helped craft the House bill and will be promoting its Senate approval on Tuesday, defended not tying liability limits to compliance with specific standards.

“Standards change,” he said. And Farnsworth said there are problems with tying the ability of a business to defend itself to any particular standard.

One, he said, is practical. Consider the requirement for “social distancing” to keep six feet between individuals or, at least, between groups of customers.

“How does he force customers not to be within six feet?” Farnsworth asks, other than kicking them out of the business.

Then there’s the problem of a situation where maybe the tables are only five feet apart. Farnsworth said that should not lead to the possibility of a lawsuit.

And then, he said, it does not take into account that not all businesses are alike.

“A salon industry is much different than a restaurant industry,” Farnsworth said. So, too, he said, are doctor’s offices.

“So a one size for all doesn’t work,” Farnsworth said.

There’s something else that could doom the bill.

The other key provision eliminates the ability to charge those who violate a gubernatorial executive order during an emergency with a misdemeanor, complete with a possible $2,500 fine and six months in jail and, for business owners, the potential loss of license. It would be replaced by a $100 fine.

Ducey, who has used that threat of a criminal conviction to urge compliance, has so far sidestepped questions about whether he would sign or veto the measure. But Boyer questioned whether it’s wise to even put him in that position.

“I don’t like poking the governor in the eye,” he said.

Among the 28 bills that Fann wants Senate action on Tuesday are:

– Requiring schools to teach information about the Holocaust and other genocides at least twice between grades 7 and 12;

– Allowing judges to set aside convictions of certain traffic offenses, including driving on a suspended, revoked or canceled license;

– Prohibiting school districts and charter schools from hiring people not certified as teachers if they have been convicted of certain crimes;

– Requiring that one member of the State Liquor Board be a currently elected city or town official;

– Mandating that students who have to attend defensive driving classes be taught about laws that require them to move over when approaching an emergency vehicle;

– Extending state laws that put $1 of every motorcycle registration fee into a special Motorcycle Safety Fund;

– Increasing the required qualifications to run for and serve as state mine inspector.

Senate, fired Democratic staffer deadlock on reinstatement terms


The Arizona Senate and fired Democratic policy adviser Talonya Adams are headed back to court next week after failing to come to terms on her job reinstatement by the court-ordered deadline of Oct. 31. 

Federal Judge Douglas L. Rayes ordered last month that Adams, a black attorney fired by the Senate in 2015 after asking for a raise, must be reinstated and set a deadline of Halloween. On Friday, Adams filed a noncompliance order, saying she and the Senate’s attorney are deadlocked over “retroactive seniority, supervision and the Senate interpretations of its obligations.”

Adams, Senate Chief of Staff Wendy Baldo and Senate GOP spokesman Mike Phillipsen did not return requests for comment. Senate President Karen Fann said in a text message that she could not discuss Adams’ reinstatement because it’s an unsettled HR issue. 

Senate Democratic leadership and staff have not been involved in negotiations, Senate Minority Leader David Bradley said. 

“All I know is they haven’t reached a deal yet,” he said. “I think they’re on the verge of it.”

Adams said in court that she would accept reinstatement at a salary of no less than $100,000 — a sum significantly higher than the salaries of all other Democratic policy advisers in both the House and the Senate. 

She has expressed concerns both in court and media interviews about returning to work for Baldo and Senate Democratic Chief of Staff Jeffrey Winkler, two of the people who supervised her during her previous job at the Senate.

Adams charged, and a jury agreed, that Baldo, Winkler and then-Senate Minority Leader Katie Hobbs, now the Secretary of State, discriminated against her based on her race and gender, and fired her in retaliation. A jury in July awarded her $1 million, though Rayes later limited the award to about $350,000 because of statutory caps on damages in discrimination cases. 

According to court documents, Adams worked for the Senate from December 2012 until February 2015 as a Democratic policy advisor, earning $60,000 per year during her whole tenure. Adams also ran for a seat in the House in 2018, finishing last in a four-way primary in Legislative District 27. 

A few weeks before she was fired, she emailed Minority Chief of Staff Jeff Winkler and then-Minority Leader Katie Hobbs with concerns about her committee workload and whether she was being paid accurately because her timesheets only reflected eight hours of work per day. Adams then met with Senate Chief of Staff Wendy Baldo, who oversees all employees, to discuss those concerns in early February.

A few days later, the Legislative Report, a sister publication of the Arizona Capitol Times, published the salaries of all state Senate employees and Adams learned that she made nearly $30,000 less than a white male policy advisor for the majority caucus who had similar committee assignments. Adams emailed Baldo the next morning to ask about protocol for requesting a raise, and Baldo told her she needed to go through Democratic leadership. 

Adams emailed all six members of the elected Democratic leadership team to ask for a meeting to discuss her position, and Hobbs told her to discuss the matter with Winkler. 

At the same time, Adams planned to travel to Seattle to care for her sick son. She was away in Washington when Winkler learned that she hadn’t completed a briefing project due that day.

On Feb. 20, 2015, Baldo, Winkler and Hobbs agreed to fire Adams, citing a lack of confidence caused by her failure to complete projects before leaving for Seattle. Adams was fired by phone later that day.

She sued in federal court in 2017, alleging that the Senate violated the federal Civil Rights Act by paying her less than white male employees and firing her in retaliation after she complained.