Kris Mayes may have been sworn in as Arizona Attorney General earlier this month, but the legal arguments over whether she received the most lawfully cast votes is still ongoing, with a decision expected in a few weeks on whether Republican candidate Abe Hamadeh should be granted a second trial in his election contest.
Hamadeh’s motion for a new trial has been opposed by Mayes, Maricopa County, and new Arizona Secretary of State Adrian Fontes, who took over as a defendant when then-Secretary Katie Hobbs was sworn in as Governor. Hamadeh’s reply to the oppositions is due Feb. 6 and is reportedly being written by Jen Wright, the former head of the Election Integrity Unit under Attorney General Mark Brnovich.
After the reply is filed, Judge Lee Jantzen of the Mohave County Superior Court can either rule based on the written pleadings or set a hearing for oral arguments. Any decision Jantzen makes will likely be appealed to the Arizona Supreme Court, which could keep the case in limbo for weeks.
Jantzen dismissed Hamadeh’s election challenge Dec. 23 after a brief trial that featured the results of an expedited and limited inspection of ballots in just a few of Arizona’s 15 counties. The inspections were undertaken in an effort to obtain evidence supporting Hamadeh’s claim that thousands of votes cast for him were not counted during the Nov. 8 General Election.
The evidence presented to Jantzen, however, did not include reports of tabulation problems experienced by Pinal County. Those reports were not made public until Dec. 29 when the statewide recount results were announced, cutting Mayes’ margin from 511 votes to 280 votes out of more than 2.5 million ballots cast.
In a Jan. 3 motion for a new trial, Hamadeh’s legal team points out Hobbs in her then-role as Secretary of State, did not disclose the extensive Pinal County problems to Hamadeh or the judge, even though Hobbs had direct knowledge of the issues prior to the trial. It is enough reason to allow for a more in-depth review of uncounted votes in the attorney general’s race across the state, Hamadeh argues.
Maricopa County has lost the trust of the people.
How can Arizonans have confidence in future elections not knowing if it will be run competently? This only casts doubt into the democratic process that they so loudly claim they’re protecting.
The argument for a new trial recently got a boost from Arizona’s top two lawmakers.
In an Amici Curiae (friends of the court) brief, Senate President Warren Petersen and House Speaker Ben Toma urge Jantzen to “afford the parties a full and fair opportunity” to determine to answer the pivotal question of which candidate received the highest number of votes for Attorney General in the 2022 General Election.
Petersen and Toma take no position on who is the legitimate winner. Instead, they point to the fact Hamadeh now has “the kind of salient evidence” that Mayes, Hobbs, and Maricopa County argued Hamadeh had to supply to prevail during trail.
The Jan. 25 brief argues those same parties argue it is simply too late for Jantzen to do anything about it on behalf of Arizona voters. But that is not what the Legislature intended when it created state laws which allow voters and candidates to challenge the proclaimed “official” election results, according to the brief.
“The nearly unprecedented circumstances surrounding this proceeding underscore the judiciary’s indispensable role in ensuring that the certified winner of an election did, in fact, receive the highest number of lawful votes,” the brief states, adding Arizona law has “for more than a century afforded contestants a nearly unqualified right to inspect all voted ballots upon a minimal threshold showing of good cause.”
Toma discussed the amici curiae brief shortly after it was filed, pointing to the important role judges like Jantzen play in preserving election integrity.
“Election contests promote transparency, fact-finding, and an independent judicial inquiry when there are credible questions surrounding the accuracy of certified election results,” Toma explained.
In the meantime, Jantzen has another matter he needs to rule on.
Several persons were appointed to serve as ballot inspectors for the various parties during Hamadeh’s trial last month. Compensation for those inspectors is mandated under state law at a rate fixed by the court.
Jantzen, however, did not announce the rate in advance. As a result, those inspectors cannot be paid until an appropriate court order is issued.
Mayes has requested nearly $2,900 for the ballot inspector she chose for review of ballots in Maricopa County, a rate of $445 per hour for 6.5 hours. Meanwhile, Mohave County Attorney Matthew Smith is asking Jantzen to authorize payment to its inspector for 7.5 hours of work on the pay scale similar to an attorney in private practice.
Navajo County also filed a motion to compensate the three inspectors who traveled to Holbrook to inspect ballots in that county. Each of the three traveled at least 100 miles roundtrip and worked between 7 and 9.5 hours.
Unlike the motions by Mayes and Mohave County, the compensation request by Deputy County Attorney Jason Moore of Navajo County took no position on the hourly rate for the inspectors.
Hamadeh’s legal team has until Jan. 31 to respond to the compensation motions. Jantzen can then request additional arguments or issue an order.
Terri Jo Neff is a reporter for AZ Free News. Follow her latest on Twitter, or send her news tips here.
It is a standard officer safety, public safety protocol for an officer to draw his or her duty weapon and point it at a suspect during a high-risk arrest. But a proposal by Phoenix PD Interim Chief Michael Sullivan would make pointing a firearm at anyone, regardless of the situation, a Level 1 reportable Use of Force action even if the gun is never discharged.
It is just one of several changes to Phoenix PD’s Use of Force policy for which Sullivan is seeking public comment, and which clearly notes the policy will be “deliberately stricter than the Constitutional and legal minimums established by the Courts.”
A number of national law enforcement organizations, however, have come out in opposition to the underlying direction of the agency’s proposal, including the International Association of Chiefs of Police (IACP).
According to a recent IACP Use of Force position paper, managing use of force by officers is “one of the most difficult challenges” facing law enforcement agencies.
“The responsibility of law enforcement officers to enforce the law, protect the public, and guard their own safety and that of innocent bystanders is very challenging,” the IACP noted. “Interactions with uncooperative subjects who are physically resistant present situations that may quickly escalate.”
Ideally, an officer is able to gain cooperation through the use of verbal persuasion and other de-escalation skills. But there are situations, the ICAP noted, where use of force is unavoidable.
In such instances, use of force to gain control and compliance of subjects must be “objectively reasonable,” according to the U.S. Supreme Court in Graham v. Connor, which acknowledged that an officer’s decision to use force is often made under varied scenarios and often on a split-second basis.
Most agencies base their Use of Force policies and training around Graham v. Connor, in which the justices recognized that officers do not need to use the minimum amount of force in any given situation. Instead, the officer’s use of any force must be “objectively reasonable” based upon the totality of the circumstances known to the officer at the time force was used.
The totality of the circumstances could include the immediate threat to the officer or others; the time available for an officer to make decisions in tense, uncertain, and rapidly evolving circumstances; the seriousness of the crime(s) involved; whether the subject is attempting to evade or escape; and the danger the subject poses to the community.
Other factors may include prior contact with the subject; the number of officers on-scene; the age, size, and strength of the subject versus the officer; specialized skills of the officer; injury or exhaustion of the officer; whether the subject appears affected by mental illness or the influence of alcohol or other drugs; crowd-related issues; and the subject’s proximity to potential weapons.
But Sullivan wants to change the Phoenix PD Use of Force policy away from the objectively reasonable standard to a standard of “reasonable, necessary, and proportional” that goes outside the Supreme Court’s analysis and relies on a more subjective review or interpretation.
IACP has “significant concerns” with any policy or legislation which replaces the Graham v. Connor standard with a standard which opens an officer’s split second decision to a new level of interpretation that results “in endless scrutiny and second-guessing by investigators, prosecutors, and civil courts.”
AZ Free News spoke with several officers about their reaction to the proposed Use of Force changes. The officers are not being identified due to concerns of retaliation although their identities and employment have been confirmed.
One Phoenix officer said his biggest worry is that he and other officers “will hesitate for fear of being disciplined” when confronted with a threatening or potentially threatening situation.
“A moment’s hesitation can cause someone their life,” the officer said, adding he expects more officers to be injured on duty under such a vastly different standard.
He also pointed out that officers would be prohibited from using “any force” on a person whose health, age, condition, or circumstances “make it likely” that death or serious physical injury will result.
The prohibition is so broadly worded to be unclear whether an officer cannot use force to subdue a gun-wielding 80 year old who has just shot a neighbor.
Another Phoenix PD officer points to concerns with the proposed change to de-escalation tactics, which Sullivan wants to expand to include withdrawing from the scene.
According to the officer, current policy allows for retreating from a volatile or dangerous scene as a method of de-escalation. This is often utilized when dealing with someone having a mental health crisis or when a criminal suspect can be apprehended in another, less risky manner.
But under the proposed policy, Phoenix officers could be disciplined for not opting to deescalate by completely withdrawing and leaving the scene. While this may appear to resolve the immediate issue at hand, the officer says the tactic could place the public “at further risk” once the police presence has left.
One example is an uncooperative trespasser on private property. If the officer withdraws from the scene to avoid escalating into physical contact, the property owner would be left to protect the property and the residents’ safety.
Or officers will be called back to the scene to deal with a now more dangerous set of circumstances.
And then there are those high-risk arrests where a suspect could have a weapon or has shown a propensity for physical violence. It is common practice to point a gun at such suspects to protect the safety of officers and the public.
Sullivan’s proposal, however, would now add a Use of Force demarcation on an officer’s record for such conduct. This means, according to another Phoenix officer, that an officer involved in a few hundred arrests over several years in which their gun was drawn could be alleged to have poor de-escalation skills because the majority of their arrests involved “force” even if no physical contact was involved.
Another activity which could result in a Use of Force report against an officer under Sullivan’s proposal involves Phoenix PD’s highly touted utilization of a Less-Lethal Launcher that fires a 40mm rubber projectile as well as a Pepperball Launcher, both of which can temporarily incapacitate a suspect.
Public records show these proven best-practice tools have been successful by officers to reduce more dangerous encounters. Yet under Sullivan’s proposed policy changes, the use of such tools could easily end up being considered “deadly force” in many instances.
Attorney Steve Serbalik explains his concerns with Chief Sullivan’s proposed Use of Force policy:
Other agencies which support the current objectively reasonable threshold for the use of force include Association of State Criminal Investigative Agencies. Commission on Accreditation for Law Enforcement Agencies, Federal Law Enforcement Officer Association, Fraternal Order of Police, Hispanic American Police Command Officer Association, International Association of Directors of Law Enforcement, National Association of Police Organizations, National Association of Women Law Enforcement Executives, National Organization Black Law Enforcement Executives, and National Tactical Officer Association.
Terri Jo Neff is a reporter for AZ Free News. Follow her latest on Twitter, or send her news tips here.
The Arizona Supreme Court issued a unanimous opinion Tuesday finding that the Town of Marana violated state law by assigning the entire cost of upgraded and expanded wastewater treatment facilities to future homeowners through development impact fees.
The fees were challenged by the Southern Arizona Home Builders Association (SAHBA) under Arizona Revised Statute 9-463.05 due to the fact that existing Marana residents also benefited from the improved facilities.
The opinion authored by Justice Clint Bolick reverses a Pima County Superior Court decision and sets aside an Arizona Court of Appeals decision, both of which sided with Marana.
According to Bolick’s opinion, town officials violated state law by requiring new residents to bear the entire cost of the expanded and improved services and facilities. Instead, the statute required a proper allocation of costs be conducted through a “discrete, evidence-based findings of fact” that took into consideration the benefit to existing residents.
The case now goes back to a Pima County judge for further proceedings, at which SAHBA will be free to argue that certain expenses should not be included in development fees at all, while Marana officials may argue that certain expenses pertain exclusively to new development.
This could lead to no change to the development fees or an order for recalculation of those fees.
Court records show that until 2012, Pima County provided sewer and water service to residents of the Town of Marana. That year, after five years of effort, the town obtained operational control over a wastewater reclamation facility (WRF) from Pima County, assuming the facility’s roughly $16.4 million in outstanding debt.
In 2013, Marana acquired legal title to the WRF, including the infrastructure, land, and exclusive rights to the facility’s effluent. Owning the effluent contributes to the 100-year assured water supply required for new development, as it can be used to recharge the aquifer.
Town officials then voted to issue 20-year bonds with an annual debt service of $1.8 million to finance the acquisition of the WRF. The Town also commissioned two infrastructure improvement plans, which assigned half of the acquisition costs to future water customers and the other half to future sewer customers.
Those costs would be paid in the form of development impact fees.
The WRF’s output was initially limited to 380,000 gallons per day (gpd) but the capacity was up to 500,000 gpd by 2017 when town officials approved a Capital Improvement Project encompassing “multi-phase expansion and upgrades” to the water and sewer systems.
Phase 1, which was the subject of SAHBA’s litigation, was undertaken to increase the WRF’s capacity to 1.5 million gpd to serve both existing residents and anticipated development. It also brought Marana into compliance with the Class B+ water quality standard required by its Aquifer Protection Permit.
New water and sewer impact fees were also adopted by Town officials in 2017, still assigning 100 percent of the debt service to future water and sewer customers via development impact fees.
As previously reported by AZ Free News, SAHBA initiated its lawsuit in 2018 seeking a declaratory judgment that the development fees violated ARS 9-463.05 by disproportionately imposing the WRF and Phase 1 expenses on future developers even though current residents were also benefitting from the improvements.
In response, the Town’s attorneys argued the development fees were valid because the expansion and improvements were undertaken to serve future development. A Pima County judge agreed and granted summary judgment in favor of the Town.
According to the judge, “the Town’s chief goal in acquiring the WRF was to obtain its effluent as a water resource in order to secure recharge credits towards water rights as a means for sustaining growth by having access to a 100-year designated water supply.”
The Arizona Court of Appeals affirmed the lower court decision, ruling it was irrelevant that any upgrades and modernization to the WRF would also benefit existing residents.
The Town’s attorneys then went on to oppose having the Arizona Supreme Court consider the case, calling such review “unwarranted.” But the justices announced in April 2022 it would hear the matter, noting the case presented unresolved issues of statewide importance.
Tuesday’s opinion notes the court of appeals “committed two principal errors” in upholding the lower court’s decision in favor of Marana. First was applying a presumption that the Town’s assessment of development fees was valid. Second, the appellate court took the position that the WRF project was “entirely” for purposes of new development, even though Marana officials conceded some costs would benefit existing residents.
“In sum, we conclude that the Town violated § 9-463.05 by making future development bear 100% of the cost of acquiring the WRF; by making future development bear nearly all the cost of upgrading, modernizing, and improving the facility; and by failing to determine what could or could not be included in development fees or to make any proportionate allocation of costs between existing and future development,” the opinion states.
Terri Jo Neff is a reporter for AZ Free News. Follow her latest on Twitter, or send her news tips here.
The public relations and legal fallout continues after the nonprofit which accepted donations for Gov. Katie Hobbs’ public inauguration ceremony released the names of donors and the amount of each donation.
Hobbs was officially sworn in Jan. 2 during a private ceremony. She then held a public inauguration ceremony on Jan. 5. The information about who paid for that ceremony via the Katie Hobbs Inaugural Fund was finally released several days later, after attorney Tim La Sota threatened to sue Hobbs for violating public records laws.
The Katie Hobbs Inaugural Fund was registered with the Arizona Corporation Commission on Dec. 13 by Hobbs’ campaign manager Nicole DeMont as a 501(c)(4) nonprofit social welfare organization. DeMont is currently listed as the only director on ACC records.
DeMont and Hobbs have come under scrutiny for accepting $1.5 million from roughly 120 donors, including $250,000 from utility giant Pinnacle West Capital Corp., the owner of Arizona Public Service Co. (APS). But the event cost less than $210,000, according to public records.
Government transparency watchdogs are calling for an investigation into whether Hobbs’ inauguration team had a pre-event budget worked out and whether more money was intentionally accepted than needed. But La Sota says there also remains a question of whether Hobbs violated another Arizona law by using the state’s website to solicit money for her inauguration.
“That’s definitely a no-no,” La Sota told KFYI’s James T. Harris this week. “That’s no different hardly than just putting a link on the governor’s official state website to her campaign account and saying, ‘hey you know do you want to support me politically, go to my campaign.’”
La Sota also told Harris that donations to DeMont’s nonprofit reportedly entitled donors to preferred access and seating at Hobbs’ inauguration event held on public property.
Questions surrounding the inaugural fund have also led some Democrats across Arizona to express dismay, behind the scenes, that Hobbs put them in the position of having to publicly ignore the $1.5 million controversy, just years after leaders of the Democratic Party called for an investigation into the funding of Donald Trump’s inauguration.
There is also growing pushback to utility companies like APS getting so heavily involved in politics; public records show APS donated $850,000 to the failed gubernatorial campaign of Kari Lake.
APS responded to criticisms about its donation to the Katie Hobbs Inaugural Fund with a statement that the money came from shareholder funds and not from customer payments. However, the company’s image has taken a hit in the court of public opinion given the fact APS is currently seeking a rate increase.
Another large donor to the inauguration was Blue Cross Blue Shield, which anted up $100,000, as did the lobby arm of the National Association of Realtors along with Arizona Realtors. There was also $100,000 donated by Sunshine Residential Homes Inc., a for-profit company that contracts with the State of Arizona to provide some child welfare services.
The rest of the donations ranged from $10 to $50,000; several were from entities like Union Pacific, the Arizona Dispensary Association, and Salt River Project which have dealing with various state agencies.
So what happens to the $1 million plus left on the books of the nonprofit created for Hobbs inauguration?
According to the IRS, the money can be spent on anything DeMont desires, provided it falls under the very broad category of promoting social welfare within the IRS code for a 501(c)(4).
“To be operated exclusively to promote social welfare, an organization must operate primarily to further the common good and general welfare of the people of the community (such as by bringing about civic betterment and social improvements),” according to the IRS.
In addition, seeking legislation germane to the nonprofits programs is a permissible means of attaining social welfare purposes.
“Thus, a section 501(c)(4) social welfare organization may further its exempt purposes through lobbying as its primary activity without jeopardizing its exempt status,” the IRS rules state.
There has been much public consternation that DeMont will use some of the inaugural fund donations for political activities. This is permissible under IRS rules provided engaging in politics is not the “primary activity” of 501(c)(4).
The only other stated restriction under IRS Code is that the political activity cannot involve “direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office.”
The code makes no mention of restrictions to referendum or initiative measures that might come before voters.
Therefore, it is possible that donors to the Hobbs’ inauguration could end up seeing DeMont use their money against own their political interests.
Terri Jo Neff is a reporter for AZ Free News. Follow her latest on Twitter, or send her news tips here.
It sounds simple enough – repeal any sales tax on the purchase of food for home consumption currently being imposed by two-thirds of Arizona’s municipalities and thereby provide relief for residents against the ongoing effects of inflation, high fuel prices, and increases in utility costs.
That is the purpose behind House Bill 2061 introduced earlier this month by House Majority Leader Leo Biasiucci along with 35 co-sponsors. Sales taxes in Arizona are formally known as a transaction privilege tax (TPT).
Today I introduced HB2061, a bill that removes the grocery food tax in Arizona. With 35 cosponsors, this is a bill that all Arizonans should get behind! 🇺🇲 pic.twitter.com/CF1CKD2QHM
Arizona does not have a state TPT for the sale of food for home consumption. But supporters of Biasiucci’s bill note that without a change, those who shop in a city or town with a municipal TPT on food will continue to be hit with a double whammy – more TPT being paid along with increasing grocery prices.
Sponsored by @Leo4AzHouse, HB2061 repeals the municipal food sales tax. Cities are reaping the benefits of inflation with record high sales tax revenues, all while Arizonans struggle. It’s time to provide inflation relief to Arizonans by repealing the food tax. We support HB2061 pic.twitter.com/PgjzfJKWbE
There is, of course, a quiet benefactor to those inflation-driven higher grocery prices – the 65 of Arizona’s 91 incorporated cities and towns which tax food for home consumption. The higher the prices, the greater their revenues.
Several municipalities have gone on record against HB2061, including the cities of Apache Junction, Avondale, Buckeye, Chandler, Coolidge, Glendale, Globe, Goodyear, Litchfield Park, Page, Prescott, Scottsdale, and Tempe, as well as the towns of Florence, Fountain Hills, and Gilbert.
Two other cities – Phoenix and Tucson – which do not even have a city sales tax on food for home consumption still oppose HB2061, as do lobbyists such as the League of Arizona Cities & Towns, the Professional Firefighters of Arizona, and Arizona AFL-CIO.
HB2061 cleared its first hurdle last week with a 6 to 4 vote in the House Ways & Means Committee. All four no votes came from Democrats on the committee. One lawmaker who advocated for the legislation during the committee vote was Rep. Travis Grantham (R-Scottdale).
“It’s unthinkable to me that people can stand up and justify taxing something people need to survive on a day to day basis,” Grantham said.
HB2061 is slated to be considered by the House Rules Committee on Monday. It will then be debated by the House, where many lawmakers expect to hear complaints that cities and towns will have to cut services if the bill passes.
It is an argument Biasiucci (R-Lake Havasu City) refuted last week, pointing out that the roughly one-third of Arizona’s cities and towns without a sales tax on food for home consumption are still able to offer municipal services.
Do the 27 cities in Arizona that do not have a food tax have Police? Ask Phoenix, Tucson, Lake Havasu, Kingman and get back to me with your answer.
If passed into law, the elimination of the food sales tax would take effect later this year. However, there is nothing in state law preventing any municipality that currently has such a tax from repealing it on their own.
The Joint Legislative Budget Committee estimates HB2061 could save Arizonans nearly $160 million in Fiscal Year 2022 and potentially growing to a savings of more than $195 million in FY 2026.
Democrats in the Arizona Legislature just voted NO to cut taxes on groceries! EVERY REPUBLICAN VOTED YES!! #HB2061
