A superior court judge on Tuesday left open the possibility of finding the Arizona Senate in contempt of court in the coming weeks.  

A liberal watchdog group asked in a hearing to hold the Senate in contempt for not obtaining documents from Cyber Ninjas and its sub-vendors, per an earlier court order. 

But Maricopa County Superior Court Judge Michael Kemp wasn’t ready to make that ruling, and he won’t until at least Dec. 2, when a contempt hearing is scheduled. 

American Oversight in May sued the Arizona Senate for a bevy of records related to the election review of the 2020 general election in Maricopa County. While the Senate has made public some of its audit-related documents, records in possession of contractors and legislative privilege continue to be sticking points. 

If Kemp does find the Senate in contempt, Senate attorney Kory Langhofer said he’s not worried about winning at the appellate court level, saying it was “ridiculous” to argue that holding the Senate in contempt would, in turn, compel Cyber Ninjas to hand over its records. 

“(Senate President) Karen Fann cannot snap her fingers and get these documents; the problem is Cyber Ninjas,” Langhofer said, adding that American Oversight could sue the contractor itself. 

However, American Oversight attorney Keith Beauchamp argued the Senate has not pursued every option to comply with the court order to produce records in Cyber Ninjas’ possession. 

Beauchamp offered up some options, arguing the Senate could sue Cyber Ninjas for breaching its contract, reach out for assistance from the Sheriff’s Office, or refer the matter to the attorney general. Beauchamp also suggested the Senate withhold payment and threaten to take back what it’s already paid to the contractor.  

But Beauchamp also said the burden is on the Senate, not American Oversight, to show it has taken all reasonable steps to comply with the court’s previous order. 

“I have illustrated a number of steps that they could take that they haven’t yet,” Beauchamp said. “And frankly, the only steps they have taken, limited ones, have been because we are seeking contempt.” 

He also suggested a more severe option.  

“You could fine them,” he told Kemp. “You could put them in jail.”  

But Langhofer said the options Beauchamp mentioned wouldn’t solve the problem. 

Langhofer said anyone could refer the issue to the attorney general, including Beauchamp, and that he didn’t know of anyone being held in contempt for not contacting law enforcement, especially about an issue being publicly discussed in hearings such as that one. The Senate is already withholding $100,000 of the $150,000 it agreed to pay Cyber Ninjas, Langhofer said. He added that the court should not compel the Senate to sue Cyber Ninjas to avoid being found in contempt.  

“I think that moves the court into an advocacy role, which is inappropriate,” Langhofer said.  

The Senate notified Cyber Ninjas last week that it breached its contract by not complying with the court order and has also reached out to sub-vendors in an attempt to obtain responsive records. Langhofer said the sub-vendors have not responded, and Cyber Ninjas have continued to respond, essentially, with “pound sand.” 

Cyber Ninjas is not a party in the American Oversight lawsuit, though they are a party in a separate public records lawsuit brought by the Arizona Republic. Cyber Ninjas maintains that it should not be a party in either case and that it is not bound by Kemp’s rulings in the American Oversight case. 

In a friend of the court brief, Cyber Ninjas attorney Jack Wilenchik said the only record the Senate was entitled to was the Cyber Ninjas’ final audit report and that ruling otherwise would set a “terrifying precedent” for government contractors. 

“CNI’s own records are not public records simply because they may relate to that report, which seems to be the contention here,” Wilenchik wrote. 

During the hearing, Kemp also did not grant a stay on his Oct. 14 order compelling the Senate to release many of the documents it claimed fell under legislative privilege. The Senate asked for the stay to give it time to seek a stay or review from the Court of Appeals.  

Kemp said he thought the Senate would be unlikely succeed on appeal and that the potential harm to the Senate of releasing documents did not outweigh the harm to American Oversight of not receiving them.  

“This is a very important public policy issue with very strong public interest in this case,” Kemp said.  

He scheduled a status conference at 10 a.m. on Nov. 29.  

If the Senate does not dissuade the court from holding a contempt hearing, that will take place at 1:30 p.m. on Dec. 2. 

“We want the documents; we don’t want a contempt hearing,” Beauchamp said. “But if we can’t get the documents, we ought to get a contempt hearing to find out why the Senate won’t do everything within its power (to get the records).” 

Senate President Karen Fann is calling it quits after next year’s session. 

The Prescott Republican, who wouldn’t have been term-limited out until 2024, announced Monday afternoon that she will not be running for re-election. However, she does plan to stick around as Senate president in 2022. 

“It has been a privilege to advocate on behalf of Arizona citizens in my 12 years at the state Legislature and the honor of a lifetime to serve as Senate president,” Fann said in a written statement. “I look forward to a successful session in 2022 advancing policies that benefit all Arizonans, and then enjoying the life my husband and I have built for ourselves in retirement with our family.” 

Fann’s departure means, no matter what, both chambers of the Legislature will have new leadership in 2023 even if Republicans keep the majority – House Speaker Rusty Bowers, R-Mesa, is term-limited. 

This year, much of the Senate’s time has been spent on the audit of the 2020 election results in Maricopa County the chamber ordered and oversaw. Fann has been a vocal supporter of the audit, which drew national attention on Arizona and which some Republicans hoped would lead to the results of the 2020 election being overturned, although Fann has said that was never her goal. Democrats have heavily criticized the “fraudit,” as they’ve called it, as a partisan exercise that has been based on and provided fuel for conspiracy theorists and undermined confidence in elections. 

The auditors’ report found no evidence of widespread fraud, although it did raise concerns about some election processes.  

Attorney General Mark Brnovich is investigating some of the questions in the Cyber Ninjas’ audit report – former Maricopa County Recorder Adrian Fontes was interviewed last week by an agent from Brnovich’s office – and the audit is also expected to weigh heavily on next year’s legislative agenda, with Fann and other Republicans calling for new laws in response to the Ninjas’ findings. 

Fann was involved in local politics in Yavapai County before running for the Legislature, joining the House in 2011 and serving there before becoming a senator in 2017. She has been Senate president since 2019, beating Sen. J.D. Mesnard, R-Chandler, who had also sought the position. She succeeded former Sen. Steve Yarbrough, who didn’t run for re-election in 2018 due to term limits. Fann was the second woman in history to run the Arizona Senate; Brenda Burns, who had the job from 1997 to 2000, was the first. 

Mesnard wished Fann the best Monday. 

“There are a lot of unknowns right now with the legislative maps, etc., but I will be giving serious consideration to leadership as we approach the next Legislature,” he told the Capitol Times. 

Mesnard added that, “while I’m sure people are starting to talk leadership, and all the more now with (President) Fann’s announcement, but we have a whole other session in front of us with a leadership team in place, so it seems a bit early to start talking about it. I want to be respectful of the team we have there now. 

Yellow Sheet Editor Wayne Schutsky contributed.