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Issue: Jean-Jacques Cabou

Case that triggered changes to forfeiture laws settled

A federal appeals court rejected Todd Fries' argument that his conviction on chemical weapons charges should not have been taken into account when he was sentenced for bomb possession.
A federal appeals court rejected Todd Fries’ argument that his conviction on chemical weapons charges should not have been taken into account when he was sentenced for bomb possession.

A lawsuit that was the catalyst for changes to Arizona’s civil asset forfeiture law has been settled.

Plaintiff’s attorney Jean-Jacques Cabou said the Pinal County Sheriff’s Office and the Pinal County Attorney’s Office compensated his client, Queen Creek resident Rhonda Cox, for her truck, which the two agencies seized in 2013 after arresting her son for a crime he committed while using it.

Cox alleged the seizure violated her constitutional rights.

U.S. District Court Judge Diane Humetewa dismissed the case April 27 after parties filed a notice that they had reached a settlement.

Cabou said Cox’s lawsuit prompted “key, long-overdue reforms to Arizona’s civil asset forfeiture laws.”

Gov. Doug Ducey signed HB 2477 into law in April 2017, making it more difficult for state prosecutors and police to seize property. The new law put in place a more rigorous standard of proof required before property may be seized, and eliminated the possibility that a property owner who fights forfeiture and loses in court could have to pay the government’s legal fees. The legal fees coupled with the owner’s own legal costs would often amount to more than the property was worth.

Under the new “clear and convincing evidence” standard, prosecutors have to prove to a judge that property they want to seize is connected to criminal activity, a far cry from the “preponderance of evidence” standard under which Cox’s truck was seized.

The former standard required only that it was more likely than not that the property was linked to a crime. And there was no requirement that someone be convicted or even charged with a crime before having their property seized.

Now, if someone does believe property was seized without cause, the property owner can challenge the seizure without potentially being left on the hook for their own legal fees if they win. Rather the state may cover the costs of fighting the seizure, and triple the costs in cases where the state is found to have acted with negligence or intended harm.

Cox’s case began when her son borrowed her truck and replaced the hood and bed cover with stolen parts. Cox was unaware of that until deputies arrested her son and refused to return her property in 2013.

The American Civil Liberties Union of Arizona, which filed suit on Cox’s behalf in July 2015, contended she had a right to have her truck returned because she was not herself involved in any crime.

Cox began the process of seeking the truck’s return herself but she ultimately gave up when a deputy county attorney told her she would be liable for the county attorney’s fees and investigation costs, which exceeded the truck’s value of about $6,000.

The case began under the administration of former Pinal County Attorney Lando Voyles, who lost his reelection bid to Kent Volkmer in 2016. Former Pinal County Sheriff Paul Babeu was also originally a defendant in the case but was replaced by the current sheriff, Mark Lamb, after Babeu chose to run – unsuccessfully – for Congress instead of seeking reelection.

Critics of Arizona’s civil asset forfeiture often pointed to Pinal County while still under Babeu and Voyles’ watch to buttress their arguments against the practice.

The push for greater scrutiny managed to bring together unlikely allies, like the ACLU and the Goldwater Institute, while law enforcement officials fought the changes that ultimately became law.

Google wants to keep data tracking secret

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Internet giant Google is asking a judge to block a bid by Attorney General Mark Brnovich to publicly disclose documents he got from the company during his investigation of how it uses private information.

Attorney Jean-Jacques Cabou contends there’s no basis for Brnovich’s complaint in the first place, arguing that anything the company is accused of doing does not run afoul of the Arizona Consumer Fraud Act. That is the law that the attorney general is using to claim Google is defrauding Arizona consumers by collecting private information and then storing and sharing it with others.

But Cabou says there can be no fraud because Google was not selling anything to Arizona consumers. And he said Arizonans knew that Google applications and phones using Google’s Android operating system were tracking them, then they agreed to it.

Cabou told Maricopa County Superior Court Judge Timothy Thomason in new filings that he should decide the issue of the validity of the case first. He said if the lawsuit is tossed, the issue of what Google documents become public becomes legally moot.

Mark Brnovich
Mark Brnovich

But Assistant Attorney General Beau Roysden told the judge that the public has a right to know — and immediately — what his office unearthed in its investigation of Google. And he said that the company’s mere assertions that pretty much all 1,200 pages of what it has produced should not be released “do not establish that the materials are confidential, nor are they a basis for sealing information so designated.”

And he said Google has never explained how it would be harmed by disclosure.

“Nor has Google shown that its interest — whatever it may be — overrides the presumption of public access,” Roysden wrote. “On the contrary, consumers have a strong interest in learning how their own data is surreptitiously collected and used by Google.”

Central to the lawsuit, Brnovich is arguing, is that Google last year collected $135 billion from advertisers for detailed information about its users, including where they are located. That information helps those advertisers target users in specific geographic locations.

The problem with all that, Brnovich charges, is that the tactics the company uses to “surveil” its users’ locations are “willfully deceptive and unfair.” And that, he said, violates the state’s Consumer Fraud Act.

He also says it is difficult — and in some cases impossible — for users to stop Google from tracking their travels even after they turn off the “location services” on their devices, calling it “a fake button.” If nothing else, Brnovich said that the default setting for this should be “off.”

Brnovich wants a judge to order Google to surrender any profits it has made “by means of any unlawful practice.” He also wants “full restitution” to Arizona customers and for the company to pay a fine of up to $10,000 for each willful violation of Arizona law.

Finally, he wants a court order barring Google from engaging in similar practices in the future. That would cover not just Google manufactured devices but also its Android operating system and its popular search engine.

Cabou has a few charges of his own.

“Google learned through information it received pursuant to the Arizona Public Records Law that the investigation was encouraged by Google’s long-time adversary, Oracle,” he told the judge.

More to the point, Cabou said Brnovich is arguing the documents at issue need to be disclosed because of “so-called public interest in the case.” But he said that the investigation itself was “improperly publicized” locally and nationally before the lawsuit was filed.

Capitol Media Services, using documents obtained through public records, wrote in 2019 that Brnovich had launched an inquiry into “a major tech firm” about whether it was tracking their movements.

The name of the firm to be investigated, located in a contract with an outside law firm for assistance, was blacked out. But the contract with an outside legal firm was signed just a week after The Associated Press reported that Google was tracking users’ locations even after people had opted out.

Cabou even has something to say about that contract, pointing out the fee arrangement with the Washington law firm of Cooper & Kirk, gives that firm a percentage of what it could recover “or extract a settlement from Google, and nothing at all if they did not.”

The contract caps total outside legal fees at $50 million, not counting what might be recovered in restitution for Google clients.

Ryan Anderson, spokesman for the attorney general’s office, called Google’s response to the request for records — and the complaint about the contingency fee arrangement — “hyperbolic and absurd.” He said to reach that amount, a settlement or verdict would have to exceed $1 billion.

And what of the issue about Oracle?

“I’m not sure what Google’s point is other than to obfuscate reality,” Anderson said.

`We filed a consumer fraud lawsuit against the company because Attorney General Brnovich believes Google should be held accountable for their deceptive behavior,” he said. “I’ve got news for Google: so does much of the Free World.”

The most immediate legal issue involves those documents Brnovich got from Google.

Roysden is relying on the issue of public interest in the case as he tells the judge that the information his office gathered during its investigation “cannot be sealed.” He said there is a strong presumption of public access.

And Roysden said just the fact that Google is trying to keep the documents from public view is, in itself, telling.

“Google’s attempt to hide its wrongdoing from the public only demonstrates that Google’s actions have been willful and intentional,” he told Thomason.

“Google cannot articulate a compelling interest for sealing this information, much less one that overrides the public’s strong interest in the facts surrounding the case,” he said. “Neither can Google establish prejudice beyond embarrassment.”

A status conference on the case is set for next month.

Brnovich has acknowledged that others gather information about Arizona consumers without their consent and sell it to third parties, particularly credit bureaus. But this, he said, is far different.

“They’re collecting vast amounts of data, including location services, where you’re at, how long you’re at a store and everything else, which is much more invasive than, let’s say, someone running your credit report,” he said.

And Brnovich noted that consumers have a right to request a copy of their credit report to find out exactly what is being reported on them and ask the company to remove erroneous information. That is not an option, he said, with the kind of tracking being done here.

GOP lawmaker asks AG to probe legality of Phoenix police policy

Rep. Jay Lawrence (R-Scottsdale)
Rep. Jay Lawrence (R-Scottsdale)

Rep. Jay Lawrence, R-Scottsdale, filed a complaint with the Attorney General’s Office asking for an investigation into whether a Phoenix Police Department policy on the release of information about critical incidents conflicts with state law that protects an officer’s privacy.

The complaint, filed Nov. 8 under SB1487, a 2016 law that allows legislators to ask Attorney General Mark Brnovich to investigate whether local governments are flouting state laws, calls into question the police department’s “Critical Incident Transparency Protocol.”

The state can withhold a city’s share of state-shared revenue, which funds vital local government services, if the AG finds the complaint to be valid.

The Phoenix protocol, which contains guidelines for the release of records, videos and information following an incident, was put into place by Police Chief Jeri Williams in mid-July.

In his complaint, filed at the request of the Arizona Police Association, Lawrence questions whether the protocol violates Arizona statute, which states that records concerning an internal affairs investigation are exempt from public records requests if the investigation is ongoing or if the officer has appealed the disciplinary action.

However, the Phoenix policy calls for the names of officers involved in critical incidents, defined as police-involved shootings, excessive force incidents, officer death or injury, in-custody deaths, “or any other incident generating significant community concern,” to be publicly released within three to seven days. Records will be released to the involved officer, community leaders and union representatives within seven to 14 days and to the involved person’s family and media within 14 to 30 days, according to the policy, which was included in the lawmaker’s complaint.

“It does conflict, and it undoes the privacy of a police officer involved in any incident, which is outrageous,” Lawrence said.

However, the city is arguing that Lawrence’s claim is moot because the protocol is not a regulation or official action that the Phoenix City Council voted on and is therefore outside the scope of what the Attorney General’s office can investigate under state law, city spokesman Nickolas Valenzuela said.

In a response filed with the AG’s office on Nov. 9 asking that the complaint be dismissed, private attorney Jean-Jacques Cabou, who is representing the city, wrote that this was a department policy that only applied to police. He asked that the attorney general make a decision by Nov. 16.

“For the second time in as many months, our client, the City of Phoenix, has been targeted by a meritless complaint purporting to invoke the powers granted to your office by SB1487,” the request for summary closure reads. “Because the complaint seeks to challenge something that is neither an ordinance, nor a regulation, nor ‘other official action’ within the meaning of (state statute) your office has no authority to continue its investigation.”

Ken Crane, president of the Phoenix Law Enforcement Association and secretary of the statewide association, said although he understands the need for such a policy, the two groups aren’t in favor of releasing information related to an open investigation because it may hinder the investigative process.

He said the unions especially take issue with the release of footage captured on police body cameras, which he said are often limited and don’t help tell the whole story. Releasing the footage before the investigation is complete, he added, could “taint public opinion.”

“Police use of force can be very visceral, very gritty, it can be unpleasant to watch, and for the uninitiated or the people who aren’t exposed to that it can almost be a bit shocking,” he said. “In reality, that officer is doing maybe everything they were trained to do in that situation. But it just looks ugly. And so what happens is, people form preconceived notions and the officer then begins to get tried in the court of public opinion with a 30 second video snippet that doesn’t even tell the whole story. That’s the issue.”

Though he declined to detail specific examples of incidents in which the premature release of records have caused harm to an officer, Crane said there have been a few incidents where the associations felt the police department rushed to release video footage. He said in some cases that has led to harsher punishments for the involved officer or made it harder for the officer to appeal the disciplinary action.

Crane said when Williams was working to roll out the policy, the union and other police officials objected to the early release of records but their concerns weren’t addressed.

“I think the chief had a good idea to come up with a standardized protocol on how we’re going to release information, who we are releasing it to, and the timeline that we’re going to release it,” he said. “That data ultimately does become public record, it will eventually become accessible. The question is how fast? So we believe that the chief’s protocol, as well intentioned as it may have been on her part, is in conflict with state law.”

Crane said after discussing the issue with the Phoenix Law Enforcement Association board, the board brought up its concerns with the Arizona Police Association, who then reached out to Lawrence for help.

Attorney general spokesman Ryan Anderson said the agency received Lawrence’s complaint on Nov. 6, however, staff was unable to process it until two days later because Lawrence failed to sign the form.

It isn’t the first time Lawrence has incorrectly filed an SB1487 complaint. Last year, Lawrence filed a complaint against the city of Phoenix for issuing ID cards to undocumented immigrants, but submitted the wrong form. He re-filed his complaint a few days later but that form didn’t include any additional information or documents needed to investigate the claim.

The attorney general has 30 days to investigate the complaint and a determination will be made by early December, Anderson said.

“Based on the initial filing, it’s not necessarily clear what the violation is,” he said. “We will follow up and ask additional questions, particularly what aspect of the policy violates statute.”

He said staff will evaluate the policy as it stands to ensure it complies with state law, and if it doesn’t, the attorney general will work with the city to change the policy’s language to come into compliance with state law.

This is the sixth SB1487 complaint that the AG’s office has investigated since the law was enacted in 2016, resulting in one law that was found to violate state law, two that may violate state law, one that did not, and one complaint that was withdrawn. If the attorney general finds that the ordinance violates state law, the municipality must reverse the policy within 30 days or risk losing its portion of state-shared revenue.

Supreme Court hears Tucson election case

vote-web

An attorney for the city of Tucson asked Arizona Supreme Court Tuesday to slap back yet another effort by state lawmakers to tell charter cities when they have to hold their elections.

Jean-Jacques Cabou said the whole purpose of the Arizona Constitution in allowing cities to adopt charters was to give them control of matters of purely local concern. And in this case, he said, Tucson voters have said they like having their elections in odd-numbered years so that local issues do not get buried under debates about who should be president or governor or any of the statewide ballot issues.

“Let’s be clear: The electors of the city of Tucson have consistently and very recently have said, ‘We want odd-year elections, leave us alone,’ ” he told the justices, with Tucson voters deciding as recently as November 2018 to keep their odd-year elections.

Under questioning from the court, Cabou conceded that there are limits to local power.

“If the city of Tucson, or some other city for example, passed a law that said only property owners could vote in purely municipal elections, there’s no question that the state would have a constitutional imperative to step in and say, ‘No, no, no,’ ” he said. Such a provision would infringe on individual constitutional rights.

J.D. Mesnard
J.D. Mesnard

“But the question here is whether the state — and one legislator who doesn’t represent any part of the city of Tucson — can step up and say, ‘We want your elections to be when we say so,’ ” Cabou said, a reference to the fact the measure was pushed through by J.D. Mesnard, a state senator from Chandler.

But Assistant Attorney General Beau Roysden said the members of the Republican-controlled legislature who mandated consolidating elections have a legitimate interest in promoting voter turnout. And he said the 2018 law promotes that concern.

What the justices decide will have implications beyond Tucson. There are 19 communities in the state that have taken advantage of a provision in the Arizona Constitution allow them to adopt charters to govern local matters which, until now, have included things like when to hold elections and terms of office.

And an adverse ruling by the high court could open the door to state lawmakers imposing other restrictions on the power of councils in those charter cities to make their own decisions.

Tuesday’s hearing is the latest bid by lawmakers to exert their will on not just Tucson but charter cities.

It started in 2012 with a law requiring consolidated election dates. But that was struck down by the state Court of Appeals which said that lawmakers had no statewide interest in interceding in what charter cities decide is a local matter.

The 2018 revision sought to get around the earlier ruling with a declaration calling it “a matter of statewide concern” to boost voter turnout. It says cities have to scrap their election dates if turnout at a local-only election was 25% less than the most recent statewide election.

The Tucson turnout in 2019 was 39.3% versus 67% of Tucsonans who had voted in 2018. But the council ignored the law and set the next election for later this year.

But the justices questioned Roysden how any of that is a matter of “statewide concern.”

“Where’s the statewide interest of someone in Lake Havasu of when Tucson holds an election?” asked Justice Bill Montgomery.

Roysden said that statewide interest is “allowing their citizens to effectively vote.” He said that’s the whole purpose of the 2018 law.

Andrew Gould
Andrew Gould

But Justice Andrew Gould suggested that Roysden was confusing this with the state’s interest in protecting the individual right to vote.

“Our laws certainly say we can’t burden it, we can’t discourage it, we can’t limit it through either expenditures or overly restrictive regulations in terms of access,” he said. “Where do you derive this statewide interest to increase voter participation?”

Roysden was undeterred, saying the legislature, as “the elected representative of the people,” gets to make that decision. Anyway, he said, the constitutional power of the legislature to ensure “the security of elections” trumps the constitutional right of cities to create their own election laws.

Gould wasn’t buying it.

“Security, election integrity, disenfranchising voters is a very different thing from encouraging and increasing voter participation,” he said.

“I don’t agree,” Roysden responded. That assertion got Montgomery’s attention.

“So the state legislature could penalize people that don’t vote,” he asked, making it a crime?

Roysden said that’s different.

“If you have a right to vote, you have a right to refuse to vote,” he said.

Cabou picked up on that point, telling the justices that Roysden is effectively arguing that having more people vote will lead to a better outcome.

And he said there’s another thing wrong with the state’s argument about the inherent constitutional right of the legislature to set policy on local elections.

“The same constitution that created the legislature created charter cities and created this court,” Cabou said, all of which have a role. In this case, he said, the framers gave charter cities certain powers to be “laboratories of democracy to let them pick and choose how they elected their leaders and structure their government.”

“That purpose would be totally vitiated if the state is allowed to impose its will on the electoral plans of the charter cities,” Cabou said.

He also pointed out to the justices that the candidates for municipal offices are listed at the bottom of the ballot. Cabou said while more people may turn out for statewide races, there’s no evidence that the percentage who manage to make their way to the bottom of the ballot is any higher than in a local-only election.

The justices did not say when they will rule.

Charter cities in Arizona:

– Avondale

– Bisbee

– Casa Grande

– Chandler

– Douglas

– Flagstaff

– Glendale

– Goodyear

– Holbrook

– Mesa

– Nogales

– Peoria

– Phoenix

– Prescott

– Scottsdale

– Tempe

– Tucson

– Winslow

– Yuma