Kari Lake has announced she will once again seek review from the Arizona Supreme Court of her claims that she, and not Katie Hobbs, is the state’s legitimate governor.
It will be Lake’s third such effort since the Nov. 8, 2022 General Election, and comes after the Arizona Court of Appeals issued a Feb. 16 opinion upholding a Maricopa County judge’s dismissal back in December of Lake’s election challenge.
Lake has claimed in various legal pleadings that Hobbs’ victory by more than 17,000 votes was improperly influenced by myriad Election Day problems in Maricopa County. As a result, Lake has been seeking to have the county’s election certification voided in the governor’s race.
Her legal filings have argued that a judge should declare Lake as the rightful winner based on various evidence presented to the court. Or in the alternative, she wants an order for a new election in Maricopa County in the governor race.
Last week’s unanimous appellate opinion noted Lakes’ request for relief “fails because the evidence presented to the superior court ultimately supports the court’s conclusion that voters were able to cast their ballots, that votes were counted correctly, and that no other basis justifies setting aside the election results.”
The opinion authored by Chief Judge Kent E. Cattani and joined by Presiding Judge Maria Elena Cruz and Judge Pro Tempore Peter B. Swann came on the heels of two failed earlier attempts by Lake’s legal team to bypass the appellate court and have the Arizona Supreme Court hear the case.
Lake now has until March 20 to file a Petition for Review with the state’s high court. There is no guarantee, however, that the Justices will accept the case.
BREAKING: I told you we would take this case all the way to the Arizona Supreme Court, and that's exactly what we are going to do. Buckle up, America! 🇺🇸https://t.co/DXTi4WoEQ3pic.twitter.com/ik5sSqMz5P
As one of his last acts as governor, Doug Ducey appointed six judges to the Arizona Court of Appeals.
Ducey appointed Michael Catlett, Anni Hill Foster, and Daniel Kiley to Division I, and Lacey Stover Gard, Michael Kelly, and Christopher O’Neil to Division II.
In a press release, Ducey cited the increasing popularity of Arizona as a new home state as the reason for this large slate of appointments.
“These new judges will provide the much needed resources for the Court of Appeals to handle its growing caseload as more and more people choose Arizona as a place to live, work, and start a business,” said Ducey. “Each of these individuals are exceptionally talented and principled. They will faithfully uphold the law, defend the Constitution, and respect the separation of powers. I am proud to have these judges serve the State of Arizona on the Court of Appeals.”
The final year of Gov. @DougDucey’s administration cemented smart policies and solidified transformational achievements. pic.twitter.com/AiFyWYHj2y
Catlett was the former deputy solicitor general under former Attorney General Mark Brnovich. Prior to that, Catlett was a partner at a law firm, Quarles & Brady. Catlett offers pro bono legal services to Paralyzed Veterans of America, the U.S. District Court’s self-represented litigant clinic, and the Ninth Circuit’s pro bono program.
Foster served as Ducey’s general counsel, and formerly served as deputy general counsel. Prior to that, Foster served as general counsel for the Arizona Department of Public Safety, and the assistant attorney general at the attorney general’s office. Foster is involved with the Arizona State Bar and the Maricopa County Bar Association. She also serves as a commissioner for the Arizona Commission on Access to Justice, and volunteered in the past with the Arizona State University (ASU) Law Pipeline Program.
Kiley has been the Maricopa County Superior Court judge for over a decade, currently serving as the presiding judge of the Lower Court and Administrative Appeals Department. Prior to the superior court, Kiley practiced at the law firm Sherman & Howard, and prosecuted for the attorney general’s office. Kiley volunteers currently with Maggie’s Place, a nonprofit for homeless pregnant women, and formerly volunteered with My Sister’s Place, a domestic violence shelter.
Gard has served as a Pinal County Superior Court judge since 2021. Prior to that, Gard worked in the attorney general’s office as deputy solicitor general and chief counsel of the Capital Litigation Section as well as assistant attorney general in the Criminal Appeals Section. Gard also taught at the University of Arizona College of Law.
Kelly comes from the Hollingsworth Kelly law firm. He formerly worked with the Pima County Attorney’s Office as a prosecuting attorney. Kelly volunteers pro bono legal services for Step Up to Justice. He formerly served as a board member for the Southern Arizona Legal Aid organization, which provides free legal services, as well as the Tucson Village Farm, an urban farm support organization.
O’Neil has served as a Pinal County Superior Court judge. Prior to that, O’Neil was a Casa Grande Municipal Court judge, a staff attorney for the Pinal County Superior Court, and then an attorney for the Haralson, Miller, Pitt, Feldman, & McAnally law firm. O’Neil volunteers as City of Casa Grande Youth Soccer League coach, Cactus School Mock Trial Team advisor, and Casa Grande pastor.
Ducey’s work as governor is available on a new archiving site, “The Ducey Years.”
Thank you to all Arizonans for entrusting me with the privilege of being governor of this great state for the past eight years. pic.twitter.com/K2rgzgNMJn
Governor Doug Ducey today announced the appointment of Angela K. Paton to fill a vacancy on the Arizona Court of Appeals, Division I. The vacancy on the Court of Appeals was created by the retirement of Judge Lawrence F. Winthrop, who was named to the Court in 2002.
“Angela’s extensive experience in the public sector, commitment to her community, and profound respect for the separation of powers prepare her to serve the people of Arizona,” said Governor Ducey. “I am pleased to appoint her to the Arizona Court of Appeals.”
Paton has spent the majority of her career at the Arizona Attorney General’s Office. Currently, she is a Special Assistant Attorney General, in which she is responsible for providing legal counsel and policy advice to the Attorney General’s Office’s six divisions.
Prior to her current position, she served as Assistant Solicitor General from 2017 to 2019. In this role, she was the Ethics Counsel, advising about ethics issues in her office, and the Opinions Counsel, drafting legal opinions on questions of statewide importance requested by public officials. She began her career as an Assistant Attorney General in the Criminal Appeals Section from 2010 to 2013. In 2011, she received the Attorney General’s Office’s Emerging Star Award.
Before rejoining the Attorney General’s Office, Paton worked as a policy advisor to Commissioner Bob Burns at the Arizona Corporation Commission from 2013 to 2017. There she handled complex utility regulation and constitutional law matters.
Paton is returning to the Court that she clerked for after law school. After graduating from law school, she clerked for Arizona Court of Appeals Judge Patrick Irvine.
The Arizona Court of Appeals has affirmed the dismissal of a lawsuit filed in 2019 against the Sun Valley Farmers Property Owners Association of Queen Creek involving a developer’s plans to build multi-family housing on land the company owns.
In its Oct. 5 unanimous decision, the appellate court sided with a Pinal County judge who ruled earlier this year that AZ Developers LLC would have violated the Association’s lawfully enacted Conditions, Covenants and Restrictions (CCRs) by trying to construct an apartment complex on a parcel of land it purchased in June 2018.
According to court records, AZ Developers hired an architectural firm to design preliminary site and building plans for what would have become Ocotillo Crossings Apartments. But nothing more could happen until the parcel’s SR (Suburban Ranch) and CB-2 (General Business) zoning was changed and its land-use designation changed.
The Association president learned of the company’s plans during a community meeting, and later inquired with AZ Developers about how it was going to address the CCRs which state there “shall be no more than one single family residence…per parcel.”
AZ Developers soon initiated legal action against the Association, asking a Pinal County judge to rule that the language of the CCRs did not actually prohibit multi-family units and to order that the Association be barred from trying to derail the company’s plans.
Among the arguments put forth by the developer was that revisions made to Sun Valley Farms’ CCRs in 1996 were not properly made. The company also argued the CCRs were vaguely worded and thus could not be relied on to prohibit building multi-family units within the Association’s boundaries.
The Association responded by filing a motion for summary judgment, which allows a judge to dismiss a lawsuit early in the process if there is “no genuine dispute as to any material fact” and the requesting party is entitled to judgment as a matter of law.
Judge Stephen McCarville granted the motion for summary judgment, ruling that the 1996 version of the CCRs was duly adopted and recorded, and thus was enforceable. Which meant, McCarville ruled, that the “only interpretation” which could be made is that multi-family housing is prohibited on the land AZ Developers purchased.
McCarville also ordered AZ Developers to pay the Association’s attorney’s fees and costs from defending the lawsuit. The company then appealed, arguing that the CCRs did not specifically prohibit multi-family housing.
On Oct. 5, the court of appeals released its unanimous decision authored by Judge Sean Brearcliffe.
“In interpreting restrictive covenants, as with other contractual provisions, we give ‘effect to the intention of the parties as determined from the language, as well as the circumstances and purposes relating to its creation,’” Brearcliffe wrote, adding that the trial court properly determined “the plain intent and purpose of the restrictions was to limit any housing to single-family residences.”
And according to Brearcliffe, the Association could protest multi-family structures on the land owned by AZ Developers even if the CCRs do not include the words multi-family or apartment.
“That single-family residences are the only type of residences discussed and regulated reasonably indicates that other residential forms are prohibited,” the appellate decision states. “To allow apartment complexes here would similarly run counter to the CC&Rs.”
Summary judgment was also supported by the fact the CCRs made no mention of the type of construction mandates for multi-family residences that were specified throughout the CCRs for single family dwellings and associated structures such as garages, the decision states.
“Had the Association intended to permit multi-family residences on the land, it would have discussed the minimum livable area requirements for those buildings and it likely would have similarly discussed the number of permissible units,” Brearcliff wrote. “It would not have permitted multi-family housing to be built with no restrictions while setting restrictions for single-family housing.”
AZ Developers LLC can file a petition for review to the Arizona Supreme Court within 30 days of the Court of Appeals decision.
Division One of the Arizona Court of Appeals will soon determine whether the city of Scottsdale violated the state’s gift clause law by awarding one swim team public pool discounted access at the expense of another – for over 10 years. Court of appeals judges Jennifer Perkins, Cynthia Bailey, and Maria Elena Cruz heard the case, Neptune v. Scottsdale, on Wednesday.
As reported previously, swim coach Joe Zemaitis had attempted for 13 years to gain access to Scottsdale’s public pools for his team, Swim Neptune. The city continually rebuffed Zemaitis’s attempts, instead granting access at discounted rates to another team, the Scottsdale Aquatic Club.
In a press release, Zemaitis explained that their efforts over the years were met with bureaucratic inconsistencies.
“Since 2007, we’ve been aggressively pursuing space in the Scottsdale pools,” said Zemaitis. “They seem to reinterpret the rules and rewrite the rules every time we are eligible under the criteria, they change them again to try to freeze us and our residents out, and it’s simply not
fair.”
Initially, Zemaitis apprised the Goldwater Institute of the situation. Their legal team roped in the American Freedom Network (AFN) – the institute’s network of pro-bono attorneys. AFN counsel sent the city of Scottsdale a letter to allow swim teams to bid on the pool space. This prompted the city to open up the pool space for a request for proposal (RFP): a formal solicitation bid.
However, the city of Scottsdale cancelled the RFP after it was apparent that the Scottsdale Aquatic Club would lose the bid. That was the final straw for Zemaitis. This past February, the Goldwater Institute filed suit against the city.
In a statement, the Goldwater Institute asserted that the city of Scottsdale had created a monopoly – giving gifts of discounted rates and pool access to the Scottsdale Aquatic Club in violation of the state’s gift clause – then violated their own procurement code in their handling of
the RFP.
“This monopoly violates Arizona’s Gift Clause, which prohibits government from giving gifts to private entities. That’s exactly what the city of Scottsdale is doing here,” asserted the Goldwater Institute. “The deal was also done in violation of the city’s own procurement code. Scottsdale’s unlawful actions against Swim Neptune Foundation are preventing the swim club’s Scottsdale families from using facilities that they’re already paying for with their taxes.”
During Wednesday’s hearing, the city’s attorney, Eric Anderson, challenged that no city actions constituted a gift clause violation. Anderson argued that cancellation of the RFP contract and the lane fees weren’t gift clause violations.
“What is the claim here? What is Neptune asking this court to do? Are they asking for an injunction, a mandamus?” questioned Anderson.
Anderson argued further that the issues of procurement and gift clause abuses are separate.
Even so, Anderson claimed that the city hadn’t violated any procurement processes. He said that the acting procurement director merely noticed that the process had an error – that the committee should’ve scored the procurement bids entirely and not partially.
The panel of judges appeared confused by Anderson’s arguments. They wondered at the apparent conflicting language between the city’s method for scoring and the RFP (request for proposal).
Judge Perkins stopped Anderson multiple times to note that the court wasn’t so much concerned about the why behind the RFP cancellation, but the fact that it occurred at all.
“Isn’t Neptune saying this cancellation of the RFP worked to give a special advantage to a private interest, and that is why the city cancelled the RFP because if it hadn’t cancelled the RFP then the winning bidder would’ve been the non-preferred entity […] You know, this looks hinky,” said Perkins. “You had a relationship with one entity, you thought that entity was going to win the bid, when it turned out that – at least in the back and forth that we see according to the record – that the math was wrong, and when the math was correct and somebody else was going to get the bid, then we cut off the process. That the big picture is the articulated violation. The question of how we calculate consideration and everything tells us whether or not they’re correct about the violation. That’s not what is the violation.”
As a rebuttal, Riches clarified that the gift clause violation at hand is the city’s subsidization of one private entity. He called for declaratory relief, and a mandamus on the city.
He emphasized the fact that Swim Neptune was the mathematical winner of the city’s procurement evaluation – not Scottsdale Aquatic Club. This would’ve been cause to award Swim Neptune the bid, yet Scottsdale didn’t. Instead, they threw out the RFP.
Riches warned that this case would prove to be the basis for other cases around the state concerning government’s preferential treatment and relationships with private entities.
“If the city of Scottsdale can do this with public resources – [then] they can do this throughout the state,” asserted Riches.
After the hearing, Riches told AZ Free News in a statement that they were pleased with the court’s handling of the case.
“The Gift Clause prohibits the use of public resources by private parties unless certain protections are met. Here, the City of Scottsdale set up a public procurement process for a valued public asset – public swimming lanes – but then arbitrarily tossed the results when it did not like the outcome. That is unlawful and costs Scottsdale citizens $284,000 every year,” explained Riches. “We were glad to see the court of appeals grapple intelligently with these serious questions, and we are hopeful the court will stop the city’s taxpayer abuse in this case, and discourage future abuse going forward.”
The judges indicated that they would publish their ruling soon.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
