The Arizona Court of Appeals ruled against the Elections Procedures Manual (EPM) produced by Secretary of State Adrian Fontes.
Judge Lacey Gard reversed and remanded a lower court decision dismissing the case, Republican National Committee, et al. vs. Adrian Fontes, et al., last summer. Gard ruled the EPM fell under the Arizona Administrative Procedure Act (APA), a “plain reading” of the statute contrary to what the lower court ruled. Gard also dismissed Fontes’ arguments for his right to not comply with the APA because the APA and EPM statutes conflict.
“[The APA] unambiguously states that all agencies are subject to the APA’s rulemaking procedures unless ‘expressly exempted,’” stated Gard. “The APA and EPM statutes impose duties on the Secretary that may require him to begin promulgating the EPM earlier, but they are not inconsistent, do not directly conflict, and do not create impossible barriers to complying with both.”
Gard further ruled Fontes violated the APA by not allowing public comment on the proposed EPM for the full 30 days, instead only opening up review for 15 days.
Gard noted at the end of her ruling that she wouldn’t address other claims by the Republican National Committee challenging eight specific provisions of the EPM, since she arrived at the conclusion that Fontes’ promulgation of the 2023 EPM failed to “substantially comply” with requirements set forth by the APA for the rulemaking process.
The Republican Party of Arizona (AZGOP) sued Fontes over the EPM last February, along with the Arizona legislature leadership at the time (Senate President Warren Petersen and then-House Speaker Ben Toma) and the Arizona Free Enterprise Club. In a statement on Thursday’s ruling, the AZGOP claimed the appeals court found the EPM to be unconstitutional.
AZGOP Chair Gina Swoboda said the ruling confirmed the extent of the unlawfulness of Fontes’ EPM in the Thursday statement. Swoboda characterized Fontes and his EPM as an attempt “from the radical left to illegally assume control” of Arizona elections.
“This opinion from the court shows just how much Secretary Fontes and his allies in the Governor’s and Attorney General’s offices overreached in their partisan efforts to hijack our elections through this blatantly political manual,” said Swoboda. “As we have highlighted to the court, the most-recent elections manual contained many provisions that ran utterly contrary to Arizona law, giving the Democrat machine a clear advantage at the ballot box for years to come.”
Beyond the lack of compliance with APA, GOP leaders’ objections to the Fontes EPM concerned conflicts with state election law: accepting voters who declared themselves noncitizens on juror questionnaires; allowing voters who failed to submit or couldn’t achieve verification of their Documentary Proof of Citizenship (DPOC); allowing first-time, federal-only voters to provide only an ID and not DPOC for mail-in voting; not requiring county recorders to check federal databases for citizenship reviews; restricting public review of voter signatures on mail ballots; allowing Active Early Voting List voters to receive ballots outside the state for certain elections; requiring denial of early ballot challenges received prior to the return of an early ballot; and allowing out-of-precinct voters to cast provisional ballots.
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The city of Phoenix will be in court on Wednesday over a lawsuit against its arrangement waiving $8 million in property taxes for a private real estate developer downtown.
The Arizona Court of Appeals will hear the case, Paulin v. City of Phoenix. The Goldwater Institute filed the lawsuit in May 2022.
Goldwater Institute Vice President for Litigation Jon Riches claimed the property tax exemption violated both the Arizona Constitution and court precedent prohibiting the use of taxpayer dollars to benefit private interests.
“Arizona courts have been clear time and again: taxpayer dollars are to be put to public use, not to benefit private, special interests,” said Riches.
Phoenix waived the property taxes on a downtown high-rise development project by assuming the legal title from real estate developer Hubbard Street Group and leasing the property back to them. The city did so in order to capitalize on Arizona’s Government Property Lease Excise Tax (GPLET) abatement provisions. In so doing, the city of Phoenix ensured the Hubbard Street Group protection would be saved from having to pay millions in property taxes for the term of the lease — eight years. After that better part of the decade is up, the city will return the title back to the developer.
The Goldwater Institute maintains that this workaround adopted by the city amounts to, essentially, tax evasion: an abuse of GPLET and a loss of a revenue stream at a burden to other taxpayers.
As reported previously, the city of Phoenix assumed ownership after it declared the developer’s project, “Skye on 6th,” to be part of a slum or blighted area. As part of their arrangement with the city’s assumption of their legal title to the development, Hubbard Street Group agreed to pay over $500,000 in rent to the city, $30,000 to two school districts, and dedicate 10 percent of its residential units to workforce housing.
Skye on 6th is marketed as “the height of luxury.” The most affordable rooms (studios listed at 400 square feet) start at $1,500 a month. The most expensive rooms are on their penthouse floor, where rent starts at $4,500 a month and goes up to over $6,700 a month.
The project cost nearly $88 million to develop.
One of the represented taxpayers in the case, Bramley Paulin, successfully sued the city last year, Paulin v. Gallego, when he challenged the city’s restriction on temporary signage for the Super Bowl LVII. The Maricopa County Superior Court ruled the city’s resolution on signage was an unconstitutional restraint on free speech and delegation of government power.
Paulin and the other taxpayer in the case, Mat Englehorn, reside and own businesses in the Phoenix area.
The oral arguments are scheduled to occur on Wednesday at 9:30 am.
In 2020, the Maricopa County Superior Court ruled against a similar GPLET arrangement between the city of Phoenix and another high-rise developer.
In his ruling, Superior Court Judge Christopher Coury questioned whether GPLET could be relevant any longer given the tendency for abuse.
“This judicial officer questions whether the death knell for the GPLET’s usefulness has rung,” wrote Coury.
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The Arizona Court of Appeals ordered the unsealing of divorce records between Ruben Gallego, Senate candidate and congressman, and his ex-wife, Phoenix Mayor Kate Gallego.
The Washington Free Beacon, a right-leaning media outlet, sued for access to the records.
On Thursday, Presiding Judge Brian Furuya ruled in a memorandum decision that the burden remains on the Gallegos to demonstrate why records shouldn’t be unsealed. Furuya rejected the Gallegos’ argument that the records contained mention of their son, and therefore should be sealed completely. Furuya ruled that redactions of the record protecting the interests of their son were sufficient enough.
“To begin, the State of Arizona presumes court records are available to the public,” said Furuya. “[T]he party opposing the unsealing ‘must show that overriding circumstances continue to exist or that other grounds provide a sufficient basis for keeping the record sealed.’”
The Yavapai Superior Court said as much in its ruling for the unsealing of the divorce records as well. That court found that the original order sealing the records was improper, and ordered the Gallegos to submit redaction requests. The Gallegos complied, but then took issue with the rejected redactions and appealed.
Furuya had no criticisms for the superior court’s ruling.
“Upon review, we hold the court properly exercised its discretion by narrowly tailoring what is to be withheld from public view for those legitimate purposes,” said Furuya.
Ruben Gallego filed for divorce in 2016 when his wife was nine months pregnant. The Gallegos finalized their divorce the next year after their son arrived.
Last year, he told the Washington Post that PTSD was to blame for his divorce. He claimed that PTSD, acquired from serving in Iraq, caused him to drink and smoke too much, and he was prone to have “extreme outbursts.” Ruben Gallego also said he “had an addiction to artificial points of success” like running for office. Essentially, his ex-wife’s pregnancy was too much to handle on top of his professional goals and self-professed emotional issues with anxiety, moodiness, and survivor’s guilt.
The Washington Free Beaconsued earlier this year for access to those divorce records, arguing that Gallego’s race for the Senate necessitated full public transparency over his divorce with the Phoenix mayor. The outlet cited Ruben Gallego’s own remarks from his Washington Post interview, questioning whether his admission to “extreme outbursts” was in reference to physical threats or violence.
“The people of Arizona deserve to know the man who is getting down on one knee before they accept his proposal,” stated the Washington Free Beacon.
The outlet also noted that neither of the Gallegos lived in the county in which the divorce was filed, though state law requires couples to file in the county of their residence.
The Washington Free Beacon also reported that Gallego privately married lobbyist Sydney Barron in 2019, but he claimed in 2021 that he had just proposed to her that year and went on to have a public wedding months later.
Gallego is running against Republican candidate Kari Lake.
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Republican attorney general candidate Abe Hamadeh may now file his appeal, after months of waiting for a superior court judge to sign his orders.
On Thursday morning, the district court informed AZ Free News that Superior Court Judge Lee Jantzen signed the orders in the case, Kentch v. Mayes (CV-2022-01468). The notification followed the Arizona Court of Appeals’ denial of Hamadeh’s appeal on Wednesday due to lack of timeliness. Vice Chief Judge Randall Howe issued the order.
“The notice of appeal is premature and a nullity because it was filed while the motion for attorney fees was pending and before a final judgment was entered,” stated Howe.
Hamadeh claimed on X that the government has withheld evidence and therefore a new trial is warranted.
“The government’s withholding of evidence in our December trial is unacceptable and warrants a new trial where we will offer evidence showing that Abe Hamadeh, not Kris Mayes received the most votes for the office of Attorney General,” stated Hamadeh.
“The government’s withholding of evidence in our December trial is unacceptable and warrants a new trial where we will offer evidence showing that Abe Hamadeh, not Kris Mayes received the most votes for the office of Attorney General”https://t.co/DwauL48B7Q
Earlier this month, Hamadeh petitioned the Arizona Supreme Court for special action. In an order dismissing Hamadeh’s petition, the Arizona Supreme Court directed Jantzen to sign his orders from July and last December. Chief Justice Robert Brutinel issued the order.
“[A]t this point there is no apparent impediment to entering a final judgment, and the trial court should enter a final appealable judgment forthwith,” stated Brutinel.
Brutinel also criticized Hamadeh’s counsel for misrepresenting their efforts made to obtain final judgment; Hamadeh’s counsel has contested that the misrepresentation was unintentional. For that reason, Brutinel wrote that Jantzen couldn’t be fully culpable for failing to exercise discretion in his duty to carry out his responsibilities, and Hamadeh’s team was to cover the attorney fees incurred by the respondents, Attorney General Kris Mayes and Secretary of State Adrian Fontes.
In closing, Brutinel advised the parties on both sides of the case to avoid engaging in emotional language and verbal attacks of the opposition. Brutinel suggested a review of the conduct book, “A Lawyer’s and Legal Paraprofessional’s Creed of Professionalism of the State Bar of Arizona,” specifically the section on treatment of opposing parties and counsel.
“[T]he Court is mindful of the difficulties presented in this extraordinarily close election,” said Brutinel. “Notwithstanding these difficulties, the Court advises both sides to focus on the important legal and factual issues presented here and refrain from disparaging their opponents.”
Yet, after the Arizona Supreme Court advisement, Fontes accused Hamadeh and his team of conducting a misinformation campaign and intending to deceive the public in an interview with The Arizona Republic.
“This decision is a rejection of a misinformation campaign designed to deceive the public and sow distrust in our election officials,” stated Fontes.
One of Jantzen’s unsigned orders was his mid-July ruling denying Hamadeh’s motion for a new trial. The other was his December order putting the ballot exhibits under seal, admitting several exhibits into evidence, and denying any recount of ballots.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
Republican Attorney General candidate Abe Hamadeh has taken his appeal for a new trial to the Arizona Supreme Court.
In the petition filed on Thursday, Hamadeh’s team argued that the state’s judicial branch had thus far failed to provide timely decisions in such a time-sensitive case. The trial court took 161 days to issue its order denying Hamadeh’s motion since the initial January filing, which included over 60 days for the judge to set oral argument, and another 60 days for the judge to issue his denial.
“Pointedly, the parties’ rights to speedy decisions have been grossly and repeatedly violated,” stated the petition. “Given the urgency to resolve all of these matters and the lack of a plain, speedy, and adequate remedy, a special action to this Court is warranted.”
Hamadeh declared that the public had the right to a full, unfettered review of the evidence. According to his petition, that amounts to “hundreds, if not thousands” of uncounted votes that would heavily weigh in his favor and, ultimately, determine him the rightful winner of this past election.
“Our justice system cannot tolerate the government withholding evidence,” tweeted Hamadeh. “Count the votes.”
🚨🚨BREAKING🚨🚨
We just filed a Special Action with the Arizona Supreme Court asking for a new trial regarding the November 2022 election.
Our justice system cannot tolerate the government withholding evidence. Count the votes. pic.twitter.com/hmqdq9lasE
This evidence, according to Thursday’s petition, indicates critical vote count discrepancies that undermine the integrity of the recount result’s 280-vote lead that declared Democratic opponent Kris Mayes the victor. This included the allegation that machine tabulators misread valid votes as undervotes.
Last month, the trial court rejected Hamadeh’s bid to further undertake the process and exploration of alleged vote count discrepancies uncovered through the recount.
Hamadeh filed a motion for a new trial in January based on alleged evidence of uncounted votes discovered through the recount process. In Thursday’s petition, Hamadeh counsel explained it wasn’t possible to obtain this evidence warranting a new trial until after the late-December evidentiary hearing.
“[T]he newly discovered evidence was information and data that government bodies not only failed to disclose but that they also wrongfully withheld,” stated the petition. “[S]tate and county officials used the power and purse of the government to take a substantive position in an election contest and to actively tip the scales of justice by withholding public records and concealing information that validated the vote count issues Petitioners raised at trial.”
The petition further argued that the trial court’s denial was due to a lack of procedural clarity in election contests, not lack of evidence.
“If elections in Arizona are to truly be free and equal, Arizonans must be assured that government bodies cannot use resource and information asymmetry to favor one candidate over another with impunity,” concluded the petition.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
