Attorney argues courts can’t force lawmakers to follow open meeting laws

 In this April 15, 2020, file photo, the blur of car lights zip past the Arizona Capitol as the dome is illuminated in blue as a symbol of support for Arizona's frontline medical workers and emergency responders battling the coronavirus in Phoenix. (AP Photo/Ross D. Franklin, File)
In this April 15, 2020, file photo, the blur of car lights zip past the Arizona Capitol as the dome is illuminated in blue as a symbol of support for Arizona’s frontline medical workers and emergency responders battling the coronavirus in Phoenix. (AP Photo/Ross D. Franklin, File)

An attorney for the Arizona Legislature is arguing to the state Court of Appeals that lawmakers – and not the courts – decide when they have to have open meetings. 

In new legal briefs, Tom Basile said the state Constitution gives the House and the Senate “an unalloyed authority to determine its own rules of procedure.” And that, he said, makes it impossible for a court to determine whether either has acted wrongfully or unlawfully by excluding members of the public from its proceedings. 

The arguments are similar to those his law partner, Kory Langhofer, made to a different judge in contending that lawmakers are within their power to determine, without judicial interference, whether they have to comply with other laws regarding which records are public. 

In that case, Maricopa County Superior Court Judge Michael Kemp rejected the idea that the Legislature was entitled to a blanket exemption that could not be reviewed by the courts. And Kemp pointed out that while lawmakers could have written public records laws to exempt themselves, they had not done so. 

But Basile, in arguments in this case to the state Court of Appeals, said that failure to carve out a legislative exemption is irrelevant. 

He said the House or Senate “may displace the Open Meeting Law entirely simply by enacting its own rules governing the noticing and conduct of meetings.” And in this case, he said challengers to the actions of some lawmakers have no private right of action to enforce either House or Senate rules. 

Basile also has something going for him that he did not in the records case: a prior ruling by Maricopa County Superior Court Judge Joseph Mikitish saying that the issue of whether it’s a violation for a quorum of lawmakers who attended a meeting is not for the courts to decide. 

The 2019 lawsuit filed by a coalition of rights groups accused state lawmakers of illegally meeting behind closed doors with special interests in a way that violates the law on open meetings. 

Attorneys for the organizations charged that there was a quorum of at least five legislative committees attending the annual conference of the American Legislative Exchange Council. That organization, funded largely by corporate interests, serves as a clearinghouse of sorts for proposed changes in state laws across the nation, changes that can wind up being formally adopted by the Legislature. 

It is that process, the lawsuit states, which shuts the public out of the process at the earliest stages of amendments to state law. More to the point, the fact that there is a quorum of a committee present means that the first action on the legislation effectively occurs behind closed doors. 

Challengers, including the Puente Human Rights Movement and the Mijente Support Committee, sought not only a ruling that the attendance violated the Open Meeting Law but wanted an injunction against future attendance at ALEC meetings by any quorum of any committee. 

Mikitish, in his ruling, said it is legally irrelevant if a quorum attends, even if that includes enough people who then could formally approve a change in state law once they get back to the Capitol. He said that’s not for courts to decide. 

That led to the current appeal. 

Basile told the appellate judges that his arguments boil down to a simple proposition. 

“Unless it contravenes some other provision of the state or federal constitutions, the legislature may structure its lawmaking proceedings in any manner it deems appropriate,” he wrote. And Langhofer said whether lawmakers opt to follow the law is beyond the reach of the courts. 

“Judicial attempts to police the legislature’s adherence to statutory directives or internal rules would entail an untenable foray into the domain of a co-equal branch,” he said. 

All that comes down to Basile’s argument that the only thing a court can look to is whether what lawmakers are doing violates the state Constitution. 

That document makes no reference to open meetings. Instead, he said, what it says is that each chamber shall determine its own rules of procedure. It also says that a smaller number of individual legislators – something less than the full body – may meet, adjourn from day to day, and compel the attendance of absent members. 

“Neither of these provisions mandates public access to legislative proceedings,” Langhofer told the appellate judges. Nor does it set any constraints or qualifications limiting the power of the Legislature to make its own rules. 

And he said the issue of whether the Legislature or individual lawmakers obey the Open Meeting Law is strictly a “political question” that cannot be addressed by courts as a co-equal branch of government. 

Finally, Basile said even assuming courts have the ability to oversee legislative compliance with the statute, a point he does not concede, the arguments by the challengers still fail. 

He pointed out that the law has a categorical exemption for “any political caucus of the legislature.” And in this case, he said, all 26 legislators who are alleged to have attended the 2019 ALEC meeting are Republicans. 

Basile told the judges the exemption makes sense to keep people from using the Open Meeting Law “to encroach on political associations and trespass into their internal discussions.” And he said that right of privacy exists even if the membership includes elected officials and even if their activities concern matters of public policy. 

The judges have not set a date to review the issue. 

Editor’s note: A previous version of this story erroneously identified Kory Langhofer as the Senate’s attorney who filed new legal briefs. The actual attorney was Tom Basile. 


Court considers Senate records dispute

Arizona Senate Republicans hold a hearing review of the 2020 presidential election results in Maricopa County at the Arizona Capitol Friday, Sept. 24, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

An attorney for the Senate warned the Court of Appeals Wednesday that if the judges force public disclosure of records related to the audit of the 2020 election it will undermine the ability of lawmakers to do their jobs. 

Kory Langhofer told the court it should void a ruling by Maricopa County Superior Court Judge Michael Kemp who rejected broad claims that “legislative privilege” shields communications between and among Republican lawmakers and others involved in what was billed as a “forensic audit” of the election results. 

Langhofer argued that it would open up to public scrutiny the discussions that lawmakers had about the audit. And that, he said, would undermine what he said is a constitutional recognition that legislators are entitled to have private conversations and communications because that is part of their job. 

But attorney Keith Beauchamp said the flaw in Langhofer’s argument is that the records he is seeking on behalf of American Oversight — the ones that the Senate has refused to disclose — have nothing to do with the role of legislators in crafting laws. 

He said the record shows that Senate President Karen Fann, R-Prescott, said she ordered the audit and contracted with Cyber Ninjas not to consider proposed new laws. 

Instead, Beauchamp said, Fann said she was responding to concerns of Arizona residents about the accuracy of the tally where Democrat Joe Biden outpolled incumbent Donald Trump in Maricopa County. That margin of victory in the state’s largest county was enough to give the state’s popular vote — and its 11 electors — to Biden. 

More to the point, Beauchamp said, is that the audit was not part of some investigation launched by lawmakers to review the adequacy of state election laws or craft new ones. 

Even after it was produced, Fann turned it over to Attorney General Mark Brnovich to see if any existing laws had been broken. And it was only at that point, Beauchamp said — after the audit was produced and after all of the communications sought by American Oversight — that there was a discussion of whether existing statutes need to be amended. 

Beauchamp told the judges there is a role for legislative privilege. For example, he said if Fann now wants to communicate with colleagues about changes to state law based on audit findings, that would be protected. 

But what’s at issue here, he said, are the communications that Fann and others had with Cyber Ninjas and others both in deciding to conduct the audit and then on how the review was being done. None of that, Beauchamp said, is related to the business of legislators, which is crafting laws. 

“They can’t make a showing that there was any deliberative or communicative process underway, much less of any impairment of that process,” he said. 

Hanging in the balance are perhaps tens of thousands of emails, texts and other documents possessed not only by the Senate itself but also those in the possession of Cyber Ninjas, the private firm Fann retained to conduct the review. 

In his earlier ruling, Kemp acknowledged that lawmakers are entitled to certain constitutional protections. He said that is part of ensuring that the “deliberative and communicative process” about proposed laws or other matters within the jurisdiction of lawmakers is not impaired by public disclosure of their deliberations. 

The problem, said Kemp, is the Senate wants to extend that to all the communications involving Fann, Sen. Warren Petersen who chairs the Judiciary Committee, the liaisons Fann chose to interact with Cyber Ninjas and even communications with that company and its own sub vendors. And none of that, he said was “an integral part of deliberations or communications regarding proposed legislation.” 

“Under such an expansive view there are few activities in which a legislator engages that could not  be somehow related to the legislative process,” the judge said. “And the privilege does not extend to all things in any way related to the legislative process.” 

Langhofer told the appellate court Wednesday that Kemp was off base in saying that only communications related directly to proposed legislation are exempt from the state’s public records law. The key, he said, is whether public disclosure would impair the ability of the legislature to do its job. That, Langhofer said, includes “the chilling effect that would have on the body.” 

And he told the judges that upholding what Kemp ruled and accepting his narrow definition of what lawmakers can keep secret would not be fair. 

“That dismissive approach to privilege is not consistent with the way the judiciary has treated its own privilege or executive privilege,” he said. “And these exist for a reason: to encourage candor and, frankly, improved results in what is supposed to be a deliberative body.” 

Beauchamp, for his part, said any effort to shield all those documents the Senate does not want to disclose ignores the fact that they are public records. 

“There’s no dispute about it,” he said. “There’s a strong public policy favoring disclosure of records. 

And when there’s a dispute about whether something can be withheld, Beauchamp said the burden is on the agency holding the records to prove that they are exempt from being made public, not on the person seeking the documents to prove they are public. 

“And here, the public’s right to know under the public records law to know what their legislators are up to would be restricted by a broad application of legislative privilege,” Beauchamp said. 

More to the point, he said if there is a dispute the court has to weigh the interests of the public against claims of privilege. 

Beauchamp told the appellate judges there’s another reason they should reject the Senate’s bid to shield the documents from public view. He said that the Senate, having not only conducted the audit but having a public hearing on the results, waived any claims of privilege. 

Whatever the court rules is likely to affect not just the bid by American Oversight for the records but parallel litigation being pursued by Phoenix Newspapers Inc., the owners of the Arizona Republic. 

In that case, Maricopa County Superior Court Judge John Hannah also rejected Langhofer’s claim that the documents are subject to disclosure. 

“The legislative privilege does not apply to everything a legislator says or does that is somehow related to the legislative process,” Hannah wrote. “The shield extends only as far as necessary to preserve the integrity of the legislative process.” 

And Hannah, like Kemp, said it isn’t up to lawmakers to determine which of their own records are public and which they can withhold. 

“The courts, not current members of the legislature, are responsible for defining the scope of legislative privilege by balancing the public interest in legislator confidentiality against the robust disclosure policy of the public records law,” Hannah wrote. And he said that in close or doubtful situations, “the public records law prioritizes public access over legislative secrecy.” 

The judges gave no indication when they will rule. 


Court orders Senate to turn over audit records, appeal likely to come

Maricopa County ballots cast in the 2020 general election are being examined and recounted by contractors working for Florida-based company, Cyber Ninjas, who was hired by the Arizona State Senate at Veterans Memorial Coliseum in Phoenix, Thursday, April 29, 2021. (Rob Schumacher/The Arizona Republic via AP, Pool)
Maricopa County ballots cast in the 2020 general election are being examined and recounted by contractors working for Florida-based company, Cyber Ninjas, who was hired by the Arizona State Senate at Veterans Memorial Coliseum in Phoenix, Thursday, April 29, 2021. (Rob Schumacher/The Arizona Republic via AP, Pool)

A judge has ordered the Senate to immediately produce the records it has related to the audit of the 2020 election — even those in the hands of Cyber Ninjas Inc., the private firm hired to conduct the review.

Maricopa County Superior Court Judge Michael Kemp on Tuesday rejected last-ditch arguments by the Senate and Karen Fann, its president, that he should hold off issuing a final order. The judge said there is no need for further litigation, saying that the question involves “undisputed issue of fact.”

And the fact is, he said, the records are public.

More significant, Kemp rejected arguments by the Senate that it is immune to being sued over the records.

Despite the order, however, it could be some time before American Oversight, the self-described nonpartisan watchdog group which is seeking the records, actually gets them. Attorney Kory Langhofer, who represents the Senate, said he will seek an immediate stay of Kemp’s order from the state Court of Appeals.

And even if that fails, the fact remains that some of the documents that Kemp ordered the Senate to produce are in the hands of Cyber Ninjas.

“I can’t produce something I don’t have,” Fann told Capitol Media Services.

Kemp, however, was not impressed.

“Defendants’ claim that they have not even seen the documents of Cyber Ninjas Inc. and its subvendors does nothing to advance their position,” he wrote. “Willful blindness does not relieve Senate defendants from their duties and obligations under the public records law.”

Less clear is whether records produced will give Arizonans a better look at who really is funding the audit.

Cyber Ninjas CEO Doug Logan released a report last week listing what he says are groups that contributed more than $5.6 million, above and beyond the $150,000 spent by the Senate. But those groups, mostly tied to Trump or organizations that allege conspiracies in the 2020 election, are not required under federal law to list their individual donors.

A spokesman for Logan said there would be no further details released. There is no indication whether Cyber Ninjas has that information and whether it would be provided through the public records.

The court order comes as Sen. Sonny Borrelli, R-Lake Havasu City, has asked Attorney General Mark Brnovich to investigate the refusal of Maricopa County to comply with the latest subpoena, including production of the county’s routers that direct computer traffic.

A spokesman for Brnovich confirmed the request. But it remains unclear, however, whether the attorney general has any power to get involved.

It is true that Maricopa County Superior Court Judge Timothy Thomasson ruled earlier this year that the Senate is legally entitled to the information it is seeking. And Thomasson brushed aside a series of contentions by the county that the subpoena was not valid.

Thomasson said, however, the remedy for enforcing that subpoena rests with the Senate itself which has the power to hold anyone who does not comply in contempt. That same statute also says that someone who refuses to comply can be arrested by the Senate sergeant-at-arms.

But, at least for the moment, Fann lacks the necessary 16 votes to get that contempt citation.

Fann is undeterred, saying Tuesday she believes the Senate has other legal methods of getting what it wants. She declined, however, to spell them out just now.

“When it’s all ready to be tied up in a little bow we will do that,” Fann said.

In the meantime Fann now faces the new court order which, unless stayed or overturned by the appellate court, appears to give her little wiggle room.

Fann said the Senate has responded to public records requests with everything it has. But she has argued that materials held by Cyber Ninjas are not subject to those disclosure laws.

Kemp disagreed, saying that the audit is “an important public function” being conducted by the Senate, making Cyber Ninjas and the firms it hired “clearly agents of the Senate.”

That didn’t stop the Senate’s lawyers from saying that there needs to be more evidence presented — and more legal arguments — before Kemp could issue a final order requiring disclosure. But the judge, in his newest order, made it clear that this was a simple matter and he had heard all he needs.

“The courts, rather than government officials, are the final arbiter of what qualifies as a public record,” Kemp wrote.

“Whether a document is a public record under Arizona’s public records law presents a question of law,” he continued. “Further discovery or more legal briefing will not alter, enhance or diminish the court’s findings on this narrow legal issue.”

Nor was Kemp impressed by the claim that the Senate is immune from claims under the public records law.

“Legislators are protected from liability for their ‘words spoken in debate,’ ” the judge said, quoting from state constitutional provisions. And he acknowledged that lawmakers also are immune from being sued personally for their legislative acts.

But what’s at issue here, Kemp said, is a request by American Oversight for a court order compelling the Senate to comply with its duties and obligations under the public records law.

“The verified complaint is in no way a tort claim against any member of the Senate for personal liability in their individual capacities,” he wrote.

“The proposed order and the court’s findings do not, in any way, interfere with or dictate how the legislature conducts its business or its deliberative process,” Kemp continued. “The court is not dictating how the audit is conducted nor interfering in the audit process in any way.”

The judge also pointed out that Fann herself, in earlier court hearings, said the audit is a legislative function within its role under the Arizona Constitution. That means the records involved in conducting it are clearly public and do not fall within the immunity of state lawmakers.

“Such a broad interpretation would render the public records law meaningless as to any legislator at any time under any circumstances,” Kemp said. “This is surely not within the legislative intent of the public records law.”



Court: Ninjas ‘playing with fire’

In this file photo, Doug Logan, CEO of Cyber Ninjas, answers questions at a previous hearing of sorts to discuss the issues with the current Senate-ordered audit of Maricopa County election returns. (Screenshot courtesy of Capitol Media Services)

The Court of Appeals has rejected the latest bid by Cyber Ninjas to keep secret the records it has related to the audit of the 2020 election. 

In an 8-page ruling Tuesday, the judges rebuffed claims by the company that the documents, emails and other items it has are beyond the reach of Arizona’s public records law. The court said once the company started doing the Senate’s work, it became the custodian of any documents related to the audit which, by definition, was a public function. 

What that means, the judges said, is that anyone seeking those documents is entitled to request them directly from Cyber Ninjas rather than have to go through the Senate. More to the point, it also means Cyber Ninjas can be sued — and presumably, sanctioned — for refusing to comply. 

Tuesday’s ruling drew a sharp response from Jack Wilenchik, the attorney who represents the company. 

“The government cannot force private contractors to produce things the government does not own,” he told Capitol Media Services. He said that’s equivalent to a violation of the Fourth Amendment protections against search and seizure. 

But the three-judge panel, with its unsigned opinion, rejected the argument that it was opening the files of all government contractors to public inspection. 

“Our ruling does not mean that construction companies and office-supply vendors will have to rush to establish new ‘public records’ department,” the judges wrote. “Only documents with a substantial nexus to governmental activities qualify as public records.” 

And that, the court said, is clearly the situation here. 

In this May 6, 2021 file photo Maricopa County ballots cast in the 2020 general election are examined and recounted by contractors working for Florida-based company, Cyber Ninjas, at Veterans Memorial Coliseum in Phoenix. (AP Photo/Matt York, Pool,File)

“Here, the Senate’s decision to undertake the audit was premised on its oversight authority, an important legislative function,” the judges said. 

The senate then “entirely outsourced” that function to Cyber Ninjas and its subcontractors. And that, the court said, makes those audit-related records as public — and subject to being demanded — as if they were held by the Senate itself. 

Wilenchik, however, said that the appellate judges are legally off base in trying to draw a legal distinction between the records of companies that provide “ordinary goods and services” to the government, which are not public, and those that perform other functions, in this case, like the audit. 

“The court’s claim that Cyber Ninjas is not an ‘ordinary’ contractor is legally indefensible and without any genuine basis in law,” he said. And Wilenchik said he will seek Supreme Court review. 

Tuesday’s order is the latest in a pair of bids to get access to what are believed to be tens of thousands of various audit related documents, emails, texts and other communications that Cyber Ninjas has not yet produced. 

In one case, American Oversight sued the Senate for all of the records. 

Maricopa County Superior Court Judge Michael Kemp already has ordered the Senate to surrender not only the documents it has but also to make every effort to get the ones in the hands of Cyber Ninjas. 

Senate President Karen Fann, R-Prescott, wrote to the firm. But Senate attorney Kory Langhofer told Kemp that has not produced the requested items. 

That, in turn, has led American Oversight to seek a contempt citation against Fann and the Senate for failing to do more. That case is on hold. 

This second case was filed by Phoenix Newspapers Inc. which publishes the Arizona Republic. 

In this case, attorneys sued not just Fann and the Senate but also Cyber Ninjas. 

John Hannah

That allowed Maricopa County Superior Court Judge John Hannah to directly order the company to surrender the documents. And that order, in turn, led to Tuesday’s Court of Appeals ruling. 

The judges said it is the company’s own fault it has wound up in court. 

“Cyber Ninjas would not be a necessary party (to the lawsuit) if it had turned over the public records to the Senate,” they wrote. “It is a necessary party by its own actions.” 

And the judges also made clear that they believe there was only one way for them to rule in this dispute: order the production of the records. 

“To hold otherwise would circumvent the public records law’s purpose, which exists to allow citizens to be informed about what their government is up to,” they wrote. 

Tuesday’s ruling, even if affirmed by the Supreme Court, does not mean Phoenix Newspapers will get everything that Cyber Ninjas has. 

The judges said any orders to disclose records are subject to claims that they are protected by legislative or other privilege. That, however, would first require Cyber Ninjas or the Senate to provide a list of those documents they seek to withhold and the reasons why, setting the stage for the trial judge to review them and decide which are public and which are protected. 

But if the order is upheld, Hannah has made it clear he is running out of patience with the company, its repeated arguments that the judge has rejected, and what he said he believes has been “the defiance of the courts’ authority” in ordering records produced. 

“The Ninjas are playing with fire,” he wrote in an Oct. 28 order. “If and when the appellate courts dissolve the stay of this court’s orders, the court is going to enforce them.” 

And Hannah said that new arguments for blanket exemptions from the public records law “will not be entertained” unless the appellate court orders otherwise. 

“Pleas for more time will fall on deaf ears,” the judge wrote. 



Court: Senate must turn over public records

The Arizona Senate must turn over audit records requested by watchdog group American Oversight, including those in the possession of Cyber Ninjas, the Court of Appeals ruled Thursday. 

“We find no error with the superior court’s determination that the requested documents are public records that must be disclosed,” Court of Appeals Judge Maria Elena Cruz wrote.  

Judges Michael Brown and Jennifer Campbell joined Cruz in the decision. American Oversight sued in May over the state Senate refusing to release records related to Senate’s review of Maricopa County ballots from the 2020 election.  

Senate attorney Kory Langhofer said he expects the Senate will ask the Arizona Supreme Court to review the issues.  

The Court of Appeals decision comes after Maricopa County Superior Court Judge Michael Kemp on Wednesday gave the Senate an Aug. 31 deadline to turn over public records already in its possession. He scheduled a hearing for September 1 to assess its compliance with the order. 

Kemp on August 2 ordered the Senate to turn over certain audit records “immediately.” The Court of Appeals put that order on hold while it considered third-party records, but lifted the stay Thursday. 

Cruz wrote that the Senate has a duty under state law “to maintain and produce public records related to their official duties.”  

“The requested records are no less public records simply because they are in the possession of a third party, Cyber Ninjas,” Cruz wrote.  

She added that only documents with “a substantial nexus” to government activities are public records, not all files of all government vendors. 

“There is no reason why vendors providing ordinary services rather than performing core governmental functions would be subject to the (Public Record Law),” she wrote. 

American Oversight in April and May requested a bevy of records about the audit, including agreements related to the audit’s execution; plans and procedures for handling voter information; information about proposed canvassing of voters; communications among members of the audit team; budget and cost information including funders, plans and procedures for each phase of the audit; and chain-of-custody procedures. 


Judge sets contempt hearing for Senate

Cyber Ninjas CEO Doug Logan, center, Ben Cotton, right, founder of digital security firm CyFIR, and Randy Pullen, left, the former Chairman of the Arizona Republican Party and Arizona Senate Audit spokesperson, depart after announcing their findings to the Arizona Senate Republicans hearing review of the 2020 presidential election results in Maricopa County at the Arizona Capitol Friday, Sept. 24, 2021, in Phoenix. The final report of the election review in Arizona’s largest county found that President Joe Biden did indeed win the 2020 presidential contest. (AP Photo/Ross D. Franklin)

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).” 


Judge sets deadline for Senate to release public records

The Arizona Senate has an Aug. 31 deadline to produce the rest of requested internal public records related to its election audit, a superior court judge ordered Wednesday.  

However, the Court of Appeals is weighing whether audit records in the auditor Cyber Ninjas’ and other private contractors’ possession must be released. 

Maricopa County Superior Court Judge Michael Kemp gave the Senate the end-of-month deadline to turn over records it already has and scheduled a hearing for Sept. 1 to assess its compliance with the order. He also ordered the submission of a privilege log to show what documents the Senate is withholding and why. That’s also due Aug. 31. 

“The parties have been negotiating since April; I do think that’s a reasonable deadline,” Kemp said. 

Kemp on Aug. 2 ordered the Senate to turn over certain audit records “immediately,” but the Court of Appeals put that order on hold while it considers whether the Senate must acquire and turn over audit records currently in the third parties’ hands. 

American Oversight, a liberal watchdog group, in April and May requested a bevy of records, including agreements related to the audit’s execution; plans and procedures for handling voter information; information about proposed canvassing of voters; communications among members of the audit team; budget and cost information including funders, plans and procedures for each phase of the audit; and chain of custody procedures. 

In May, it sued Arizona Senate President Karen Fann, Senate Judiciary chairman Sen. Warren Petersen and the Arizona Senate over the failure to release those records. Since then, some but not all records have been released, and American Oversight is getting impatient. 

“There is a pattern in this case of the defendants indicating that they are reviewing documents, that they will be forthcoming ‘soon,’ ‘as quickly as possible,’ ‘on a rolling basis.’ That has not happened,” American Oversight attorney Roopali Desai told Kemp Wednesday. 

Wednesday’s superior court hearing followed a demand from the watchdog group that the Senate justify why it was not releasing records promptly. 

Senate attorney Kory Langhofer told Kemp he expected the Senate to produce about 10,000 additional internal records, out of about 22,000 that are under review.  

Langhofer said 20,000 of those documents have gone through initial review and are on to a quality control check. He attributed some of the slowdown to attorneys reviewing the documents being less familiar with legislative privilege than other forms of privilege. 

“We’ve produced the most important things: the counting policy, the payment issues, the fundraising records, the contracts – we’ve front end loaded the important documents, and we are getting through the rest of them,” Langhofer said. “There’s no evidence that it’s not happening as I’ve described it.”  

 Desai said she didn’t think it is up to the Senate to decide which documents are most important. She said an order is necessary, especially if the Senate plans to comply anyway and because “as early as three months ago in May, we were told that (the records) were on the verge of production.” 

 Hours after Kemp ordered the records already in the Senate’s physical possession be released, American Oversight attorney Keith Beauchamp squared off against Langhofer in oral arguments in front of a three-judge Court of Appeals panel.  

Judges Maria Elena Cruz, Michael Brown and Jennifer Campbell previously granted the stay of releasing Cyber Ninja records while denying the request to stay all superior court proceedings. 

 Langhofer said it was possible for a public record to exist but not be disclosable, for example, because it’s not in the physical custody of the public body being requested.  

“To the extent the Senate comes into possession of those documents or custody of those records, it will produce them if there’s a substantial nexus to the public function, and they’re not privileged,” Langhofer said.  

Beauchamp said his best argument in response to the custody question was a part of the Arizona Public Records Law which says “(a)ll officers and public bodies shall maintain all records, including records … reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by monies from this state or any political subdivision of this state.”  

Beauchamp noted that the law goes on to charge public bodies with the duty to “carefully secure, protect and preserve public records.”  

“At the end of the day, it’s their obligation to obtain them,” Beauchamp said. “There’s no evidence in the record that they are unable to obtain these documents. They need to comply with Judge Kemp’s order to obtain them. They’ve made no record to suggest that they cannot.” 

The appellate court judges did not say when they would issue a decision. 

Kelli Ward wins in court, GOP election stands

Dr. Kelli Ward, chairperson of the Republican Party of Arizona, speaks to a gathering inside the Yuma GOP Headquarters, Monday Aug. 17, 2020, before introducing U.S. Congressman Paul A. Gosar.  (Randy Hoeft/Yuma Sun via AP)
Dr. Kelli Ward, chairperson of the Republican Party of Arizona, speaks to a gathering inside the Yuma GOP Headquarters, Monday Aug. 17, 2020, before introducing U.S. Congressman Paul A. Gosar. (Randy Hoeft/Yuma Sun via AP)

A Maricopa County Superior Court judge today dismissed one of two lawsuits stemming from the Arizona Republican Party January election, saying the internal affairs of the AZGOP aren’t subject to a court of law.  

“The Court simply does not have authority to order the chairwoman of the Republican Party to order a Special Meeting to consider an audit, investigation, recount or re-vote of internal party procedures not involving public office or a core Constitutional concern,” Judge Michael Kemp wrote in his dismissal. 

Sandra Dowling and Bill Beard, who sued the Arizona Republican Party and its chairwoman Kelli Ward in March after Ward declined their attorney’s calls for an audit and recount of the Jan. 23 party elections. Dowling was initially announced as the winner of her race before later being informed she had lost. Ward narrowly won her won re-election.  

AZGOP attorney Jack Wilenchik said he plans to file a motion to dismiss in the other lawsuit, which seeks to have the results of the January election audited, on the same grounds if attorney Tim La Sota, who is representing Dowling and Beard doesn’t back down.  

Kemp wrote that the plaintiffs have a couple of remedies at their disposal outside of court, including gathering another round of signatures to force a special meeting — something they’ve already attempted once.  

The members needed 294 signatures – 20% of the body – representing at least nine counties to force a special meeting. They got 352 signatures from 11 counties, but party secretary Yvonne Cahill said there weren’t enough valid signatures collected, and the Party’s reservation for a special meeting on April 24 at Dream City Church was canceled. 

Beard said he still believes they collected enough signatures and that it’s problematic for someone who might be recalled to be the one determining whether signatures are valid 

“The judge was essentially agreeing with the argument that the chair and the secretary — if it comes to holding a special meeting where they are being recalled — they get to decide whether or not the signatures are really valid,” Beard said. “That kind of defeats the whole purpose.”  

Beard said they have not decided yet whether to appeal. 

Kemp’s order also says outside of court, members can seek a recall of Cahill or Ward, try to revise the bylaws for more transparency in the future or review the ballots and documents related to the January vote.  

As part of an agreement in the other lawsuit, Beard and Dowling last week reviewed paper ballots from the election, and Beard said the review turned up inconsistencies and illustrated that Ward and the Party “have been operating under bad faith.” 

Party insiders — including Beard, Dowling, La Sota, and consultant Constantin Querard, and others — met at Wilenchik’s office to review ballots Friday.  

Beard said he was under the impression up until that meeting that they would be able to look at all ballots, not just the races in which he and Dowling were candidates.  

Wilenchik said the review followed the existing language in the state Republican Party’s bylaws by allowing Beard’s and Dowling’s races to be reviewed but not others, since those were the ones flagged within 10 days of the election.  

They were able to count how many ballots total were cast in the member-at-large races.  

Ultimately, Beard said, the number of ballots cast differed from the state party’s official counts in three of the nine member-at-large races, including his own.  

“The Count was three short of the total in the final tally report; I lost my race by three votes,” Beard said. “If you have an election where after the fact you’re counting things up and the discrepancy is the same or larger than the margin of victory, you have a problem.” 

Querard tweeted that Friday’s count was off in several races and that a “nice large stack of filled out ballots” was found in a box of blanks.  

“A few marked spoiled. Most with no indication. Party believes they are all spoiled. Never seen spoiled ballots kept with blanks before,” he tweeted. 

Querard also tweeted out a portion of an AZGOP email Friday evening that stated there was “no substantive difference” in the counts of the reviewers and the official tallies. The email called for committeemen to “drop the nonsense and get on with winning.” 

But committeeman Trey Terry said party leadership’s pushback against reviewing the January election is what’s harming the state’s Republicans. 

“There is no scenario under which the Arizona Republican Party will be united under Kelli Ward’s banner,” Terry said. “The easiest and the best way to unite Arizona Republicans and put us on the track toward winning back some seats and holding our seats in ‘22 is for someone else to lead the state party.” 


Ninja records public, Supreme Court decides

Cyber Ninjas owner Doug Logan, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican-led Arizona Senate at the Arizona Veterans Memorial Coliseum, during a news conference April 22, 2021.(AP Photo/Ross D. Franklin)
Cyber Ninjas owner Doug Logan, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican-led Arizona Senate at the Arizona Veterans Memorial Coliseum, during a news conference April 22, 2021.(AP Photo/Ross D. Franklin)

The Arizona Senate has no legal excuse to refuse to publicly produce the records of the firm it hired to audit the 2020 election returns.

In a brief order Tuesday, the Arizona Supreme Court refused to overturn a Court of Appeals ruling that the records of Cyber Ninjas as related to the audit are public.

That leaves intact the finding that the records are the property of the Senate. And that, the appellate judges said, makes them subject to disclosure under the state’s public records law.

The justices also dissolved a stay they had issued to allow the Senate to keep the documents confidential at least for the time being.

But it remains unclear exactly when the public will finally get a look at what has been shielded.

Senate spokesman Mile Philipsen said he knows some of the disputed documents already have been gathered and may be ready for release within days. But with an estimated 60,000 records that have yet to be produced, it may take longer to get the rest of them online for public viewing.

And then there’s the possibility the Senate will try to make new claims about why some of the documents should remain shielded.

That is not speculation. Attorney Kory Langhofer who represents Senate President Karen Fann, told a judge in a parallel case that there may be an argument that communications between senators and the auditors who are under contract could be withheld under the argument that they represent either legislative privilege or attorney-client privilege.

“I will need to confer with our attorneys the best way to comply,” Fann told Capitol Media Services.

But attorney Roopali Desai who represents American Oversight, the organization that filed suit for access, said as far as she is concerned this is the end of the road.

“They need to produce Cyber Ninjas documents,” she told Capitol Media Services. And she dismissed the idea that the Senate could now claim the these are somehow “internal documents” subject to some sort of privilege, given that the Senate all along argued that Cyber Ninjas is not part of the Senate.

Maricopa County Superior Court Judge Michael Kemp has scheduled a hearing for Thursday on what happens next.

American Oversight filed suit in May, more than a month into the audit, demanding all records created, sent and received not only by the Senate but any of the Senate’s agents. Desai said that includes Cyber Ninjas which had a $150,000 contract to review the 2.1 million ballots cast in Maricopa County this past November, compare the results of the presidential race with what was officially reported, and examine the voting equipment used to look for flaws or signs of tampering.

Langhofer said the Senate never disputed its obligation to produce the records it actually has. But he argued there is no requirement to turn over records it does not have, meaning those in the hands of Cyber Ninjas.

That argument didn’t wash with the Court of Appeals.

“Public officials must make and maintain records reasonably necessary to provide knowledge of all activities they undertake in furtherance of their duties,” wrote appellate Judge Maria Elena Cruz. And she said the election audit is both a public function being carried out by the Senate within its constitutional powers as well as an official legislative activity.

Cruz also pointed out that the audit is being conducted with public funds, with Cyber Ninjas and the sub-vendors it hired, acting as agents of the Senate.

“The Senate defendants, as officers and a public body under the public records law, have a duty to maintain and produce public records related to their official duties,” she wrote.

“This includes public records created in connection with the audit of a separate governmental agency, authorized by the legislative branch of state government and performed by the Senate’s agents,” Cruz continued. “The requested records are no less public records simply because they are in the possession of a third party, Cyber Ninjas.”

All that was left undisturbed by Tuesday’s Supreme Court order.

That order comes as Fann along with key senators and staffers are reviewing what is billed to be a three-volume report on its findings. But that report may not be released until next week.

Fann has said repeatedly that the purpose of the audit is not to overturn the results of the presidential election which showed Democrat Joe Biden outpolling incumbent Republican Donald Trump in Maricopa County. The Biden margin was enough in the state’s largest county to counter strong Trump support in some of the rural counties and give the Democrat the state’s 11 electoral votes.

But she said it will prove useful to find out if changes are needed in state laws governing how future elections are conducted.



Senate argues against release of audit records


The Arizona Senate doesn’t have to produce records for its election audit because they aren’t in the physical custody of the chamber, the Senate’s attorney said Wednesday in court.  

Maricopa County Superior Court Judge Michael Kemp heard oral arguments today in the public records lawsuit brought by liberal watchdog group American Oversight against Arizona Senate President Karen Fann, Senate Judiciary chairman Sen. Warren Petersen and the Arizona Senate. 

The group sued in May, seeking a bevy of records from communications between Senate audit liaison and former Secretary of State Ken Bennett and people involved in planning and executing the audit, contracts between the Senate, Cyber Ninjas and other third-party vendors. They’re also looking for records related to the budget and funders of the audit, plans about the audit’s operations and plans for direct voter contact, but the group was met largely with responses that the requested records were not in the Senate’s possession. 

Since then, the group has received some records – emails to-and-from Fann, service agreements with groups providing security and other communications. The Senate has released about 1,200 pages of records, attorney Kory Langhofer, who’s defending the Senate, said. He said that about 15,000 more documents are being reviewed for release as long as they’re not found privileged or confidential. 

“That’s what the Public Records Act requires and that’s what the Senate is doing,” Langhofer said. “What we’re litigating here is additional set of documents: documents that are not in our custody and that are only available to the vendors.” 

However, the Senate has released little more in regards to its contractors, nor does it intend to.  

Langhofer said that because these other records are in the physical custody of the Senate’s third-party contractors, not the Senate itself, they’re not subject to public records laws. 

Attorneys for American Oversight said that kind of interpretation would gut the statute.  

“Those documents need to be produced; otherwise, the public record statute will have a gigantic loophole that agencies can drive a truck through that will shield them from permitting the public to know what the government is up to,” American Oversight attorney Keith Beauchamp said. “No matter which side of the political aisle you’re on, that’s a bad thing.”  

Kemp noted the public doesn’t know the cost of the audit.   

“Mr. Langhofer, isn’t the public entitled to know who was paying for this, what President Fann referred to as ‘constitutional and legislative function,’ this important constitutional duty, isn’t the public entitled to know who’s paying for this? Besides the $150,000 that the senators already appropriated?” Kemp asked. 

Langhofer said that the public is entitled to “know the information that’s in records that the public records law requires to be produced,” adding that the Public Records Act is the only basis for the public’s claims to records, not the state constitution or common law.  

“That’s a great political argument,” he said. “They should talk to the legislature about it.” 

Kemp said he would have a written ruling in seven to 10 days. 

Last week, The Arizona Republic filed a special action in Maricopa County Superior Court seeking financial records and communications about the audit. The Senate has moved to consolidate the two. 

Senate lawyer wants 720 documents withheld

Maricopa County ballots cast in the 2020 general election are being examined and recounted by contractors working for Florida-based company, Cyber Ninjas, who was hired by the Arizona State Senate at Veterans Memorial Coliseum in Phoenix, Thursday, April 29, 2021. (Rob Schumacher/The Arizona Republic via AP, Pool)

The attorney for the Senate is asking a judge to delay any move to force lawmakers to immediately surrender some audit documents. 

In new court filings, Thomas Basile told Maricopa County Superior Court Judge Michael Kemp he is convinced that an appellate court ultimately will conclude that the Senate is entitled to shield about 720 disputed documents from public view. 

More immediately, Basile said that if the Senate is forced to surrender the documents now, it won’t matter if it turns out that the Supreme Court concludes that Kemp’s ruling was in error. That’s because it instantly would open them to inspection by anyone. 

“In other words, it is impossible for the Senate to comply with the court’s order but still preserve and maintain any right to meaningful review of its privilege claims,” he said. And Basile pointed out to Kemp that even he said that the issue of legislative privilege “will likely be resolved by the higher courts.” 

“A stay will ensure that the appellate courts are afforded an opportunity to do precisely that,” the attorney said. 

The move is drawing derision from American Oversight, the proclaimed nonpartisan watchdog group that sued for the documents and, to date, has won at every round. 

“Time and time again, the Senate has refused to comply with our public records requests,” the organization said in a Twitter post. “But the law is on our side.” 

And American Oversight also pointed out that Kemp, in last week’s order directing production, underlined the importance of prompt action. 

“The stakes could not be higher and transparency, which is at the heart of the public records law, substantially outweighs any concern regarding chilling future legislative deliberations,” the judge wrote. 

At the heart of Basile’s request to Kemp is his belief that the judge, in ordering production of the documents, committed several errors. 

That first error, he told Kemp, was his rejection of the idea that “legislative privilege” is absolute. Instead, Basile said, the judge appears to have adopted the belief that such privilege can be overruled based on a balancing test. 

“No Arizona court has ever suggested that the legislative privilege is a qualified one,” Basile wrote. And he warned of the kind of precedent that a balancing test might set. 

“If in fact the public records act can curtail otherwise cognizable privileges in furtherance of some ostensible public interest, then it is not clear why the same principle would not extend to, for example, the attorney-client privilege,” Basile said. 

The Senate’s attorney also told the judge he was wrong to conclude that the only time lawmakers can claim the privilege to keep documents and communications secret is when they are discussing pending legislation. 

“Legislative fact-finding investigations, such as the audit, are themselves an integral part of the deliberative and communicative process because they are necessary antecedents to the task of formulating and debating legislation,” Basile said. 

And the attorney also took a swat at Kemp’s conclusion that the Senate, by having a public hearing to question its consultants about what they found  the judge called it “more akin to a press conference”  effectively waived any right to claim that the documents behind those findings were confidential. 

“The Senate is aware of no authority for the notion that legislators’ questioning of third-party witnesses in the Senate chamber is anything other than a legislative function, let alone a ‘political’ act akin to a ‘press conference,’ ” Basile said. 

And even assuming that the Senate has waived privilege to certain documents  a point Basile stressed he is not conceding  there is no authority to say that action waives any legislative privilege to any other documents. 

But the main argument concerns the harm he said that would occur if the Senate were forced to disclose the documents now even as it seeks review of Kemp’s ruling. Put simply, Basile said, if the appellate courts determine that the disputed documents are privileged, then the compelled disclosure would, by definition, “irreparably injury the Senate.” 

He said it would be one thing if the status of the records were at issue in a different kind of lawsuit, where lawyers from one side are seeking what the other side possesses. In that case, Basile said, a court could enter a protective order forbidding the receiving attorneys from sharing the documents with anyone else. 

That isn’t the case here. Basile said if the Senate is forced to surrender the documents now, the whole appeal effectively becomes moot because it would be too late to undo the damage he said the Senate will incur. 

The attorney said he understands the claim by American Oversight for “transparency.” 

“But the Senate already has made what is likely the largest production of public records in Arizona history,” Basile told Kemp. 

“The approximately 720 documents that remain withheld solely on legislative privilege grounds equal to only around 3% of the total universe of audit-related public records released to date,” he continued. “And a large number of them already have been produced in redacted form.” 

Even American Oversight acknowledges what has been done so far, though its numbers are different. It says that its lawsuit already forced the release of more than 80,000 pages of records, including emails. 


Senate says lawmakers not subject to public record laws


Senate President Karen Fann is taking the position that Arizona courts cannot force her or any other member of the Arizona Legislature to comply with the state’s Public Records Act.

In a new court filing, attorney Kory Langhofer who represents the Prescott Republican and the entire Senate, is asking Maricopa County Superior Court Judge Michael Kemp to throw out a claim by a self-described nonpartisan watchdog group to get access to all documents and materials related to the Senate’s audit of the 2020 election results.

Langhofer said the Senate has or will produce documents in its possession. Ditto with those in the possession of Ken Bennett who was tapped by Fann to be her liaison with Cyber Ninjas, the private company hired to conduct the audit.

The only exception, Langhofer said, are those which are protected as privileged or confidential.

He said, though, what American Oversight wants are documents that are in the hands of Cyber Ninjas or other companies it has, in turn, hired as subcontractors.

Langhofer said the Public Records Act does not apply to private companies. And he rejected arguments by attorney Roopali Desai that the records are public because the only reason Cyber Ninjas got the materials in the first place was because they were subpoenaed by the Senate.

But Langhofer has a backup legal argument just in case the judge does not read the scope of the Public Records Act as narrowly as he does. He told Kemp he has no jurisdiction in the fight.

The Arizona law spells out that public records and other matters in the custody of any officers “shall be open to inspection by any person at all times during office hours.”

Langhofer concedes that the Senate is a “public body” and lawmakers are “public officers” who, in any other circumstance, would be covered by the law.

Only thing is, he said, they are not subject to it.

“The Arizona Constitution entrusts each house of the Legislature plenary power to order its own internal procedures and affairs,” Langhofer wrote.

More to the point, he said even if there is a question — a point he is not conceding — courts are powerless to determine if lawmakers need to comply with the laws they enacted.

“Statutory measures (such as the Public Records Act) necessarily subordinate to this constitutional function,” Langhofer wrote. “Allegations concerning the legislature’s compliance with them present nonjusticiable political questions.”

If the courts agree, that would do more than leave American Oversight without a legal remedy. It also could set the stage for setting a new precedent which could leave all Arizonans powerless to use the Public Records Act to demand everything from legislative documents to letters sent to lawmakers and texts they send and receive.

But Dan Barr, attorney for the First Amendment Coalition, said he believes courts will reject any effort by Fann and her legal adviser to rule that lawmakers need not comply with the Public Records Act. He said they are clearly public officers.

“I don’t buy this notion that even though the state legislature, passing the public records law, didn’t have the power to bind itself to the law,” he said. “That’s sort of nuts.”

And Barr said that while Langhofer is relying on the constitutional provisions allowing lawmakers to set their own rules, the laws on public records actually predate the 1912 Arizona Constitution.

He also brushed aside claims that courts have no right to tell another co-equal branch of government how they have to behave.

“The (U.S.) Supreme Court decided years ago … about courts having authority to tell other branches of government what they can and can’t do,” Barr said.

“Courts strike down statutes all the time,” he said. “Courts rule on actions taken by the governor all the time.”

The lawsuit, filed last month, does not seek access to the ballot themselves.

Maricopa County turned them over under subpoena. And they are not public records.

And Fann already has made public the contract documents between the Senate and Cyber Ninjas.

But the lawsuit says at least part of what is missing are any contracts involving third-party vendors that the Senate directly or indirectly retained through Cyber Ninjas.

Desai also wants any records reflecting the audit’s budget and any external funding that may have been received.

Fann has told Capitol Media Services the only thing she knows about is the $150,000 that the Senate has agreed to pay.

That clearly is not covering the cost of the audit which has now been going on for months. And the America Project, started by a millionaire who says the election results were fraudulent, is trying to raise $2.8 million “to support and pay for expenses of the Maricopa Audit.”

It was founded earlier this year by Patrick Byrne, the former CEO of overstock.com. Byrne, in an interview earlier this year with ntd.com, said he was setting up the organization to continue the fight over the 2020 election results.

“It was a fraudulent election,” he told the television network. “It didn’t end for us on Jan. 20.”

So far the group, operating a site at “fundtheaudit.com,” says it has raised more than $1.9 million.

Fann said she has been promised there will be an accounting at the end of the audit. But questions remain as to how much will be made public.

The American Project was set up under a section of the Internal Revenue Code as a “social welfare organization.” That means it is not legally required to disclose the names of the people who donate.

Desai said her contention that the records being sought from Cyber Ninjas and the other contractors are public are buttressed by statements made by Fann.

The Senate president has said that the purpose of the audit is not to overturn the election results that showed Joe Biden defeating Donald Trump. Instead, Fann said, senators want to examine how the balloting process was handled, at least in Maricopa county, giving information to senators to decide whether changes need to be made in laws governing the conduct of future elections.

That, Desai said, makes everything the Senate — and its contractors — are doing to accomplish that goal a matter of public records.

Langhofer, however, said Kemp has no choice but to dismiss the case.

“When adjudication of a claim will entail incursions into the internal domain of the legislature or executive, respect for those coequal branches necessitates dismissal,” he said. And Langhofer said if there are questions, then they have to be resolved within the branch of government itself or, ultimately, by the people who elect them.

A hearing on the issue is set for next month.


Senate wants host of Ninja records protected

In this May 6, 2021 file photo Maricopa County ballots cast in the 2020 general election are examined and recounted by contractors working for Florida-based company, Cyber Ninjas, at Veterans Memorial Coliseum in Phoenix. (AP Photo/Matt York, Pool,File)

A judge on Thursday said he’s not ready to cite the Arizona Senate and Karen Fann, its president, for contempt of court.

Maricopa County Superior Court Judge Michael Kemp heard arguments by Keith Beauchamp, the attorney for American Oversight, that little has been done since the judge in early August ordered the Senate immediately produce the records it has related to the audit of the 2020 election. That specifically includes those in the hands of Cyber Ninjas Inc., the private firm Fann hired to conduct the review.

Kemp, however, noted that his order was stayed while appellate courts weighed the issue. And that stay, he said, was not dissolved until Sept. 14.

But Beauchamp who represents the self-described nonpartisan watchdog group said little has been done since then other than Fann sending a letter to Cyber Ninjas asking for the records. And he told Kemp that the company has pretty much told the Senate it doesn’t intend to comply.

“That letter to Cyber Ninjas in no way constitutes sufficiently reasonable steps by the Senate to meet their obligations to provide documents on behalf of their various respective agents,” he told the judge. “And given that we don’t have compliance with the court’s order yet, I think the burden is on the Senate to show they have taken all reasonable steps within their power to comply with the court’s order.”

But there’s an even larger fight looming.

Kory Langhofer, attorney for Fann and the Senate, contends that some of what American Oversight wants is protected by “legislative privilege.” That includes not just what may yet be produced by Cyber Ninjas but about 1,000 records the Senate already has but is refusing to surrender.

Beauchamp, for his part, wants Kemp to rule that the privilege — to the extent it exists — covers only communications which are part of the process of lawmakers to craft legislation.

In this case, he said, what is sought relates to how the audit was conducted and the documents that led up to the three-volume report released late last month. And Beauchamp told Kemp none of that relates to the act of legislating.

What Kemp ultimately rules could set the bar for future cases of how much — or how little — lawmakers can shield from public view.

Hanging in the balance is Kemp’s order that the records of Cyber Ninjas are public.

Arizona Senate Republicans hold a hearing review of the 2020 presidential election results in Maricopa County at the Arizona Capitol Friday, Sept. 24, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

That was affirmed by the Court of Appeals which said the company was performing a core governmental function. And that made its records related to the audit as public as if they were produced by the Senate itself.

Nor was the court impressed by arguments by the Senate that it did not have the records.

“The requested records are no less public records simply because they are in the possession of a third party,” wrote appellate judge Maria Elena Cruz.

That was upheld by the Supreme Court.

The trick now is actually getting them: Beauchamp told the judge the company is balking.

“Cyber Ninjas is not going to give to the Senate all of the documents that the Senate is obligated to produce pursuant to the Court of Appeals order and pursuant to this court’s order,” he said. So he wants Kemp to order the Senate to do more than simply send a letter.

If and when that happens, that still leaves Langhofer with his argument that some of what American Oversight wants is protected by legislative privilege. He said there’s a reason to keep certain documents secret, including things that lawmakers — and, in particular, Fann as Senate president — get from outside contractors like Cyber Ninjas.

“The quality of discussion inside the legislature, the advice that consultants and staffers give to the president will be muted,” Langhofer said. “If what you have to say, particularly when it goes against your own party’s base, is immediately available for public inspection … it will do lasting damage to the quality of discussion and argument behind closed doors of the legislature.”

Kemp, however, suggested that the privilege is not as broad as Langhofer claims.

He said it would be one thing if lawmakers were deliberating on a specific piece of legislation.

“This is an audit, this is kind of an investigation,” the judge said.

“And there isn’t any proposed legislation or anything that they’re deliberating about,” he continued. “So how would the procedures and policies and the way that the audit was conducted, how would that chill deliberations?”

Langhofer argued the judge is looking at it from too narrow a perspective.

For example, he said, there might be communications over whether the audit itself is a good idea or whether the scope of the audit should be expanded. Langhofer said lawmakers need a “safe space” to have those discussions.

And he rejected the idea that the privilege applies only after a bill is proposed.

“What we want the legislature to do is figure out the facts before introducing legislation,” Langhofer said. “That’s the legislature we want, right?”

Beauchamp disagreed.

“The Senate must demonstrate that the disclosure of the record that they’re withholding would impair legislative deliberation,” he said. “Well, they haven’t made that showing. And there aren’t any deliberations.”

Kemp has other issues he needs to decide.

One is whether to consolidate this lawsuit with a separate one brought by Phoenix Newspapers, owners of the Arizona Republic. It filed its own public records lawsuit.

In that case Maricopa County Superior Court Judge John Hannah already has rebuffed a claim by Cyber Ninjas that, as a private entity, it cannot be sued under the state’s public records law. Hannah essentially reached the same conclusion as Kemp that the audit the company performed is a government function, making its activities and records public.


Senate, watchdog group, wrangle over audit records

Cyber Ninjas owner Doug Logan, left, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican lead Arizona Senate at the Arizona Veterans Memorial Coliseum, as a Cyber Ninjas IT technician demonstrates a ballot scan during a news conference Thursday, April 22, 2021, in Phoenix. The equipment used in the November election won by President Joe Biden and the 2.1 million ballots were moved to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden's victory was legitimate can recount them and audit the results. (AP Photo/Ross D. Franklin)
Cyber Ninjas owner Doug Logan, left, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican lead Arizona Senate at the Arizona Veterans Memorial Coliseum, as a Cyber Ninjas IT technician demonstrates a ballot scan during a news conference Thursday, April 22, 2021, in Phoenix.  (AP Photo/Ross D. Franklin)

An attorney for American Oversight charged on September 1 that the Senate has not complied with a court order to surrender all the documents it has dealing with the audit of the 2020 election. 

Roopali Desai told Maricopa County Superior Court Judge Michael Kemp that the Senate has failed to produce various text messages between members of the Senate as well as messages sent between senators and others, including officials from Cyber Ninjas, the private firm hired by Senate President Karen Fann to review the election results. 

The deadline for production was August 31. 

Attorney Kory Langhofer does not dispute that the Senate has not turned over everything in its possession. In fact, he told Kemp, there are 2,885 documents that remain undisclosed. 

Langhofer said some of that is designed to give Senate staffers a chance to remove personally identifying information. 

But he conceded that there is a large group of documents protected by what he claims is “legislative privilege.” And Langhofer acknowledged to Kemp that list of withheld documents includes texts between Fann and anyone from Cyber Ninjas. 

In fact, Langhofer said that as far as the Senate is concerned, any documents not produced about the application process or the ultimate selection of Cyber Ninjas to do the work also is protected from public disclosure as either legislative privilege or covered under attorney-client privilege. 

Those claims potentially set the stage for Kemp to appoint a “special master” to go over the disputed documents in what is known as “in-camera review,” where a judge or a neutral third party goes over the materials to determine if they can legally be withheld. But Langhofer said he will fight even that, saying there is no inherent right of someone seeking records to demand judicial review. 

“There has to be a reasonable, good-faith showing under the precedents of the Arizona Supreme Court that a claim of privilege is inappropriate before a party is entitled to in-camera review,” he said. 

Kemp made no rulings September 1, scheduling another hearing for September 16, to see what progress, if any, has been made in producing the documents. 

Langhofer did tell Kemp that, as of September 1, the Senate did not yet have in its possession the draft report promised by Cyber Ninjas about what it found from its review. And he said the final report, which is expected to be in three volumes, will not be ready for at least another two weeks. 

Separately, Arizona media outlets and contractors are lining up on opposite sides of the argument about whether a separate batch of audit records held solely by Cyber Ninjas are public. 

Robert Roos is urging the Arizona Supreme Court to overturn lower court rulings that private companies can be forced to surrender documents in their possession if they involve public business. Roos, representing the Arizona Chapter of the Associated General Contractors of America, told the justices that there is no basis for such a conclusion, 

But Daniel Barr, filing on behalf of the First Amendment Coalition, said there is ample reason to justify the ruling that documents, even in private hands, are subject to the state’s public records law when a public agency  in this case, the Senate  has delegated a “core and delicate governmental function” like an audit to an outside firm. 

And Barr, also representing the League of Women Voters, took a swat at arguments by an attorney for the Senate and Fann who have argued against having to obtain and disclose the documents held by Cyber Ninjas. One of those arguments is that the Senate is immune from lawsuits about when and how to comply with the public records law. 

In fact, Barr said, the Legislature actually expanded the scope of the law in 1975. 

“Given this history, it is disingenuous to conclude anything other than that the legislature has intentionally subjected itself to the public record law’s mandate,” he wrote. “If petitioners (the Senate) want to avoid the transparency that the public records law protects, they can easily seek to do so through statute.” 

Langhofer said the Senate is producing everything in their possession that is legally required to be released. Whether that is true is the basis for those court arguments September 1. 

But the Senate has balked at turning over anything not in its actual physical possession. 

In July, Kemp said there’s no basis for that distinction, noting that Fann herself said that the audit is a public function being conducted by the Senate. 

“Cyber Ninjas and the subvendors are clearly agents of the Senate defendants,” Kemp wrote. “Cyber Ninjas and the subvendors’ records would not be subject to disclosure under the public records law if they had not been hired to conduct the audit on behalf of the Senate.” 

That was affirmed just last month by the state Court of Appeals. 

“There is no dispute that the audit is being conducted with public funds, and that Cyber Ninjas and its subvendors are agents of the Senate,” wrote Judge Maria Elena Cruz for the three-judge panel. More to the point, she rejected the contention that the lack of physical possession of the documents by the Senate means no obligation to produce them. 

“Nothing in the plain text of the public records law suggests that physical possession of the public records by the Senate is required,” Cruz wrote. 

It is that conclusion that Roos wants the Supreme Court to overturn, what with his association’s members doing work for government agencies and potentially subject to the effects of the ruling. 

“Nowhere in the legislative history of the statute is there a clear expression of legislative intent suggesting that the legislature intended to expand the scope of the public records law to the internal documents and communications of third party vendors, in the custody of those vendors, even when no public officer was a party to or in any manner relied upon or used those documents,” Roos told the justices. 

But Roos, recognizing the unique nature of this case and the decision of the Senate to farm out the audit, also has a fallback position. He told the justices that if they are going to conclude that the records in the hands of Cyber Ninjas are public, they should confine the precedent solely to election cases. 

“Elections are different than other governmental functions and documents created by and about elections are therefore different than other public records,” Roos wrote. “The public’s interest in the transparency of an election audit might thus justify the privacy intrusion into the communications of a third-party vendor hired to audit an election as agent of the Senate.” 

But he told the justices that what his clients do falls into a different category. 

“There are strong public policy reasons to differentiate between contractors hired to conduct election audits, and those other generic contractors that are hired to perform construction work for state or local governments or even school districts,” Roos wrote.