1 Exhibit
Exhibit 1
2 Exhibit
Exhibit 2
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KAREN FANN, v. MARICOPA COUNTY ______KAREN FANN, v. MARICOPA COUNTY
Attorneys for Judiciary CommitteeChairman Kory Langhofer, Ariz. Bar No. 024722 Thomas 649 North Fourth Avenue, First Floor President Karen Fann and Senate [email protected] Phoenix, Arizona 85003 IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA STATE THE FOR COURT SUPERIOR IN THE [email protected] Basile, Ariz. Bar. No. 031150 (602) 382 (602)
Defendants et al. , et al. ,
Petersen P IN AND FOR THE COUNTY MARICOPAOF COUNTY THE FOR IN AND Defendants P Defendants laintiffs laintiffs , et al., , et al., - 4078
Arizona Senate , , , , . . .
Warren
CHAIRMAN PRESIDENT FANN AND AND FANN PRESIDENT
(Assigned to the Hon. Timothy Timothy Hon. the to (Assigned JUDICIARY COMMITTEE COMMITTEE JUDICIARY FOR FOR No. No. CV2021-
JUDGMENT ON THE THE ON JUDGMENT (Consolidated) PLEADINGS CV2020 PETERSEN Thomason) *** ElectronicallyFiled Clerk oftheSuperiorCourt 2/22/2021 11:41:22AM
Filing ID12569399 - 002092 016840 K. Dyer,Deputy
’S ’S
SENATE SENATE
MOTION
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III. I.
IV. II.
A. B. C. A. B. A. B.
h Sbone Mtras r Nt rvlgd D Nt mlct Any Implicate Not Do Privileged, Not Are Constitutional Rights, and Are Not Germane to the Separation of Powers Materials Subpoenaed The 2. 1. 3. 2. 1. the Materials and Records Sought Records and Materials the in Were Subpoenas The
Electronic Documents Are Subject to the Legislative Subpoena Power h Sbons dac te ai Lgsaie ups o Ivsiaig the Investigating of Purpose Legislative Valid Integrity of Elections Assessing Potentialand Policy Reforms the Advance Subpoenas The
in Any Event Any in “Privileged,” and the Cited Statutes Do Not Prohibit Compliance with the Subpoenas Not Are Ballots Voted and Data Machine Voting “Confidential,” Are They if Even The Subpoenas Do Not Violate Any Person’s Constitutional Rights The Subpoenas Do Not Implicate Separation of Powers Principles The Subpoenas Required the Attendance of
The County Had Reasonable Notice of the Subpoenas The Legislative Subpoena Power is “Broad and Indispensable” Assessing Electoral Integrity Is a Valid Legislative Purpose The Statutes Cited By the County Are Inapplicable Even Confidential Materials Are Not Privileged From Disclosure The Subpoenas Do Not Require an Authorizing Resolution The EAC Does Not Certify Auditors Legislature’s Subpoena Power Previous Judicial Proceedings Involving Different Parties Have No Bearing on the
...... Proper Form and the County Had Reasonable Notice of Notice Reasonable Had County the and Form Proper Table of Contents
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Witnesses
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11 13 15 13 10 16 13 18 17 7 7
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Procedure 12(c) Procedure enter to Court the move declaratory respectfully Committee, Judiciary Senate the of Chairman and to summon witnesses generally and punish them for contempt if they refuse to answer answer to refuse they if contempt for them punish and generally witnesses summon to and subpoe issue to and . . . investigations conduct to committees legislative of powers the subject matter limitations. Fann and Chairman Petersen were seeking and why. wer Subpoenas issued to the Board of Supervisors during the preceding Legislature in 2020, December the statute. by required a matter oflaw. as viable is Complaint Amended the in presented arguments the of None ago. months two t as now specious as remain the Subpoenas of demands the evading for excuses its aside, oscillations opportunistic and claims and contumacy. This Court should not indulge it. p a in gambit another deploying lawsuit, this though n seig o hat h sm cnep rmde they remedies contempt same the thwart to seeking and valid, wholly as acknowledged previously they objective legislative a assailing consider, uevsr, n te aioa ony raue (olciey te “ the (collectively, Treasurer County Maricopa the and Supervisors, of Board County Maricopa the County, Maricopa Plaintiffs Legislature, the of prerogative the “Subpoenasthe issued by President Fann and Chairman Petersen and served on January 12, 2021 (hereafter,
eedns ae Fn, rsdn o te rzn Snt, n Wre Petersen, Warren and Senate, Arizona the of President Fann, Karen Defendants , the Legislature’s subpoena power is not encumbered by any temporal or or temporal any by encumbered not is power subpoena Legislature’s the Second, First eurcig sus hy rvosy nitd hs or lce ay uidcin to jurisdiction any lacked Court this insisted previously they issues Resurrecting , the s Subpoena judgment on the pleadings in their favor pursuant to Arizona Rule of Civil Civil of Rule Arizona to pursuant favor their in pleadings the on judgment e undergirded by ample notice to the County of what materials President materials what of County the to notice ample by undergirded e ”) arelawful, valid and enforceable in all respects. MEMORANDUM OF POINTS and A.R.S. § 12 § A.R.S. and See
A.R.S. § 41 - § A.R.S. See are
Buell v. Superior Court in in proper form and contain all the elements and information - 1831, I 1151. Substantively identical to two prior subpoenas prior two to identical Substantively 1151. NTRODUCTION hey were when the County first raised them nearly them raised first County the when were hey , seq., et
1
The County’s contortion of contradictory finding AND AUTHORITIES rolonged pattern of delay, obstruction obstruction delay, of pattern rolonged
, 96 Ariz. 62, 66 (1964) (“It is within
that the subpoenas subpoenas the that
rvosy ocdd ee the were conceded previously
) are County”)
duces tecum duces now, nas
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the need for greater legislative supervision of Maricopa County elections. elections. County Maricopa of supervision legislative greater for need the — repeatedly fourth America’s in elections administer competently power encompasses the authority to demand the production of not only physical “books” or de votingelectronic felonies. multiple with staff his County and the Recorder charge imminently to Attorney County the expect should one presumably is duties their of course the in officials elected by ballots voted of handlinginspectiontheor contends, County the as If, absurd. the of realm intothe ambles secrecy ballot of corruption the on prohibitions criminal various on reliance County’s the subpoena power is effectively no effectively is power subpoena legislative the that position untenable the sustain could that authority any produce to loss to response State Senate of January 15, 2021. Arizona to County Maricopa from Letter elections.” its including Arizona, govern to laws crafting of purpose legislative important its accomplish it help to want[s] and Legislature averred they when ago, weeks few a just counsel County’s subordinate political subdivision political subordinate cesbe ipy vds h oeaie usin f o o wy aioa County Maricopa why or how of question operative the evades simply accessible attached hereto as 1 well was point critical this fact, In domain. legislative reforms future of necessity the assessing and County Maricopa Subpoenas the underlying purpose the were, it if even And records.”). produce or questions relevant
, the County’s argument that the Legislature cannot access information on on information access cannot Legislature the that argument County’s the Fourth, Third, A copy of this letter, as well as a letter from Chairman Sellers to President Fann, are — compulsory process issued by the sovereign Legislature. The County is at a at is County The Legislature. sovereign the by issued process compulsory such oral processes in processes electoral of reliability and security accuracy, the examining , i.e. the undisputed proposition that certain ballot materials are not publicly publicly not are materials ballot certain that proposition undisputed the a flagrant a Exhibit 1.
vices collides with controlling statutory text. The legislativesubpoena The text.controllingstatutory with collides vices
misconstruction of the law the of misconstruction — 1
broader could possibly assert a assert possibly could
than the Arizona Public Records Act. Further, Act. Records Public Arizona the than 2
ht h Sprios h prot to purport who Supervisors the That
-
- largest county would champion would county largest is is articulated by none other than the than other none by articulated stunning
privilege that the Board “respect[s] the the “respect[s] Board the that — falls squarely within the the within squarely falls a criminal offense, then offense, criminal a , and itself underscores underscores itself and , of non- of
disclosure in disclosure — — a
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Fann and Chairman Petersen and served on the Plaintiffs pursuant to pursuant Plaintiffs the on served and Petersen Chairman and Fann Ariz. 358, 359, ¶ 2 (App. 1999). the inquiry is at an end. an at is inquiry the with complied inarguably Subpoenas the Because A. TO APPEAR” at the Arizona Senate on January 13, 2021 at 9:00 a.m. “COMMANDED were they that recipients the informed Subpoenas the that undisputed is 41 § A.R.S. place.” and time certain a at witness the of attendance the “requires I. ad mgs f alt cs i the in cast ballots of November 3, 2020 general election. images and ballots (3) and election, general 2020 3, November or access to, seq. 2 complaint as true, but “ will court the defendant, the by motion a such adjudicating See media. electronic in data include to forms, all and any in “documents” also but “papers,” citation omitted); citation Valley Our relief.’” for claim a state to failscomplaint the ‘if judgment entitledto is defendant a that such verbiage was required. required. was litigation verbiage such that of round prior the in insisted had which andCounty, the placate Capitol to only the Subpoenas at appearing personally of task the with
, and the Plaintiffs refuse to comply with the Subpoenas’ demand for the production of, A.R.S. § 41 The material facts are few and uncontested: y ttt, poel ise lgsaie upea i sfiin” f it, if sufficient” “is subpoena legislative issued properly a statute, By A. of the Materials and Records Sought The Subpoena “A motion for judgment on the pleadings tests the sufficiency of the complaint, and complaint, the of sufficiency the tests pleadings the on judgment for motion “A President Fann and Chairman Petersen never Petersen Chairman and Fann President
v. Arizona Corp. Corp. Arizona Ass’n v. (1) (1) unredacted voter information, (2) voting and tabulation devices used in the The Subpoena - 1154. see also see
conclusions of law are not admitted s W s 2
in Proper Form and the the and Form Proper ere in , 102 Ariz. 312, 315 (1967). In In (1967). 315 312, Ariz. 102 Inc., Homes, Butler v. Shannon
s s Required the Attendance of Witness
, 216 Ariz. 216, 218, ¶ 6 (App. 2007) (internal (internal 2007) (App. 6 ¶ 218, 216, Ariz. 216 Comm’n, See A
RGUMENT Am. Compl. ¶¶ 7, 81, 153 3
the the Subpoenas were issued by President
wished this unequivocal statutory directive, directive, statutory unequivocal this
County .”
included this command in the the in command this included Giles v. Hill Lewis Marce to burden County witnesses witnesses County burden to treat the allegations of the the of allegations the treat Had Reasonable Notice - 175. es A.R.S. See
Am. § § 41- Compl. Ex. , alia inter - 1151. It 1151. 1151, , 195 Save et
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lil state,” plainly they what than other something mean to statute a of words the “construe not will courts the the witness is com contends that the Subpoenas are invalid because “there must actually be a hearing at which
(1994), 1151 words that simply are not there. there. not are simply that words 1151 The Court should not will (“We 2019) (App. 12 ¶ 435, 432, Ariz. 247 County’s argument on this score. In essence, the County’s complaint is that the that is complaintCounty’s theessence, In score. this on argumentCounty’s members of the sentence are to be taken separ is invalid because invalid is committee testimony. ap required the that corroborates This distinction express “testify.” to refusal a and “appear[]” violations to criminal refusal a and between differentiate contempt expressly governing provisions statutory the Further, sense. “h committee a entail not could generally power subpoena not her does of exercise the so and officer, presiding chamber’s President the as capacity her in “committee” Senate the example, For direction. opposite sought. is testimony “hearing the by indicated as legislature the of intent clear the (internal citation omit citation (internal a extend or stretch[,] expand, rz 8, 0 14) “Whr, n saue the disjunctive statute, a in (“[W]here, (1947) 90 86, Ariz. absurdity neerd y h dsoiie oc o ti epii sauoy et te County the text, statutory explicit this of force dispositive the by Undeterred More fundamentally, it is worth pausing to appreciate the logical dissonance of the of dissonance logical the appreciate to pausing worth is it fundamentally, More Nothing in Section 41 Section in Nothing
and the County’s argument can be sustained only by interpolating into Section 41 Section into interpolating by only sustained be can argument County’s the and ,” ,” or secures for secures or quash is self is ao Sh Ds. o 5 v WES Cnt C. Inc. Co., Const. W.E.S. v. 50 No. Dist. Sch. Canon
manded to attend in order to provide testimony.” the the
the S If anything, the textual and semantic interpretive in interpretive semantic and textual the anything, If - evident ted)). Senate did not forceSupervisornotSenate Sellersdid testify to See ubpoena because it was not sufficiently demanding of the witness. witnesses a right to deliver declamations to the Senate when no when Senate the to declamations deliver to right a witnesses
A.R.S. §§ 41 .
- statute 1151 or its neighboring statutes requires the existence of a of existence the requires statutes neighboring its or 1151 to matters not falling within its express provisions.’” provisions.’” express its within falling not matters to See -
1153(A),
Hiskett v. Lambert in & for County of Mohave of County for & in Lambert v. Hiskett 4
ately.”).
- 1154;
read erne a, r a nt include not, may or may, pearance
statute
see generally a a into aig i ay conventional any in earing” itself, nor will we ‘inflate, ‘inflate, we will nor itself, form is used, the various various the used, is form statute Am. , 177 Ariz. 526, 529, 529, 526, Ariz. 177 , ; ; chair anything not within not anything State v. Dickens , 66 in other words, the the words, other in Compl. ¶ 12 dicia point in the in point dicia
n standing any
Subpoena 5 . But - ,
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eae s deeply is Senate the at appearance Sellers’ Supervisor surrounding circumstances the of characterization juncture procedural tedne omn ws cnepuu[, A. op. 9, ¶ Compl. internal Am. “contemptuous[],” was command attendance an from resulted of aware appearance personally were who attorneys, same Sellers’ these For County. the within “miscommunication” Supervisor that apologetically surprise his expressed Langhofer When tow. in cameras TV and reporters with morning, next the this relay would he that responded Rue La information to Mr. day. next the stunt” “PR a avoid to desire Senate’s the expressed and necessary as attendance witnesses’ subpoenaed the view to stated Langhofer Kory attorney Senate evening, that later call phone a In otherwise. intended County the if Senate the alert County the that asking but Capitol, the at appear not would representatives County’s would assume that, given the pending legal dispute concerning the Subpoenas Co the contacted Senate the for counsel troubling. See troubling.
appearance facet of the Subpoena the of facet appearance 41 § A.R.S. undisputed that the County the that undisputed testimony. of offering the not materials, of production the to only extends notice” appear. See represented would occur tha hearing a for prepare to time insufficient Sellers Supervisor ial, hl te or cno ad ed o pre ata questions factual parse not need and cannot Court the while Finally, In B. and dismay in a phone call with
the above the Kfasu agmn, h Cut cned ta te upea afforded Subpoenas the that contends County the argument, Kafkaesque a
- Am. Compl. ¶ 141. Preliminarily, the statutory requirement of “reasonable of requirement statutory the Preliminarily, 141. ¶ Compl. Am. The County Had Reasonable Notice of the Subpoena 14 Frhr qetos ocrig h Cut’ cmlac wt the with compliance County’s the concerning questions Further, 1154.
his clients. Sure enough, however, Supervisor Sellers appeared at the Capitol Ariz. R. Civ. P. 11. ilaig Soty fe te upea wr ise o Jnay 12, January on issued were Subpoenas the after Shortly misleading.
- referenced facts, to now represent to this Court that the Subpoenas the that Court this to represent now to facts, referenced ol b aae ht h Aedd Complaint’s Amended the that aware be should Court the , and for which he was informed (through counsel) that he need not
witnesses s s — moot are County
fulfilled the Subpoenas the fulfilled
County unty’s counsel by email, stating that the Senate the that stating email, by counsel unty’s counsel Joseph La Rue that the Senate did not did Senate the that Rue La Joseph counsel 5
if they were ever ripe in the first place. It is is It place. first the in ripe ever were they if counsel later in the day, the latter indicated
’ ’ command of appearance at appearance of command
r oe id f ruse, of kind some or t t the Senate had never never had Senate the s s ’ ’ legality, legality, the
t this at See
is is ’ ’
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time the defendant had appeared, the court responded: court the appeared, had defendant the time non- willfully defaulting on a congressional subpoena. Rejecting arguments that the defendant’s in defendant complaints eristic County’s Subpoena the the of timing respect, and form this the concerning In so. do to which in years 17 or hours 17 afforded is it whether of regardless Subpoenas, the of commands outstanding the with complying of intention no has it that clear abundantly it made has County The irrelevant. The County’s cries of surprise ring of disingenuousness. 41 (Dec. 29, 2020), a promise that was consummated on January 12, Am. Compl. ¶¶ 54- ¶¶ Compl. Am. 2020. December in Board the to issued subpoenas two of import aggregate the from indistinguishable largely is Subpoenas the of scope the First, better. no fares commands discharged. and satisfied been has already that wholly unclear how or remains why the Court could accordingly quash or declare invalid It an appearance demand so). doing from excused been having (despite Capitol State the the the Fifty re would they that compliance should be excused because excused be should compliance [T]he alleged defect upon which respondent now insists is, in her own own her in is, insists now one immaterial an estimation, respondent which upon defect alleged [T]he transparently are timing of considerations fundamentally, more and Second, The County’s argument that it l the hearing makes it perfectly clear, that she would not have not would she that clear, perfectly it makes hearing the conclave to hearherrefuseto honorits demands. empty formality of summoning a quorum of its members to gather in solemn the the - Fourth Legislature, . . time subpoenas ntd tts . Bryan v. States United . . . Here respondent would have the Committee go through the the through go Committee the have would respondent Here . . . - issue the subpoenas should they remain unsatisfied at the conclusion of of conclusion the at unsatisfied remain they should subpoenas the issue
55. President Fann and Chairman Petersen had Petersen Chairman and Fann President 55. no atr o th how matter see Maricopa v. Fann , 339 U.S. 323 (1950), who had been convicted of of convicted been had who (1950), 323 U.S. 339 , . . . . She does not deny, and the transcript of of transcript the and deny, not does She . . . . acked sufficient notice of the Subpoenas’ production
Cmite a be cntttd at constituted been had Committee e
the issuing committee lacked a quorum at the the at quorum a lacked committee issuing the 6
s are redolent of those advanced by the by advanced those of redolent are s , - CV2020
016840, Counterclaim ¶¶ 40
forewarned the Board Board the forewarned complied see Am. Compl. ¶ 66.
with See -
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to demand “additional demand to
II. t with fully comply not it will The and any putative lack of notice is immaterial in any event; the 3 Constitution,” the of provisions inferential or express by limited is omitted). Given that “the power of the [Arizona] legislature is plenary . . . unless that power event.” any in Id. Trump v. Mazars USA, LLP of the federal Constitution: disc in the Legislature’s sovereign authority. As the United to States Supreme Court recently reaffirmed intrinsic is that function investigatory implicit an embodies which Constitution, counsel in favor of a formal hearing attended by a by attended committee hearing formal a of a favor in quorum counsel a not with only act individually, can generally acknowledged, officers legislative by U.S. at 332 n.8. papers,” of production the to inapplicable “obviously are evidence testimonial
at 333 at County ussing the cognate power of the Congress and its committees embedded in Article I Article in embedded committees its and Congress the of power cognate the ussing Integrity of Elections Assessing Potentialand Policy Reforms In sum, the Subpoenas conformed full conformed Subpoenas the sum, In h Sbons dac te ai Lgsaie ups o Ivsiaig the Investigating of Purpose Legislative Valid the Advance Subpoenas The eiltv function legislative it— enforce to process A. economic or political system for the purpose of enabling the Congress to Congress them. remedy the enabling of purpose the for system political or economic existing laws, studies of proposed laws, and surveys of defects in our social, broad and indispensable. It encompas inquiry of power This legislate. to order in information needed secur to power has House each that held have we but subpoenas, issue or investigations conduct to power constitutional enumerated no has Congress Arizona the of IV Article from emanates power subpoena Legislature’s The It bears emphasis that, in contrast to to contrast in that, emphasis bears It
- 34. has known for nearly two months what materials the Senate is seeking and why, The Legislative Subpoena Power is “Broad and Indispensable”
Invoking an earlier case, the court added that it is nonsensical for a witness witness a for nonsensical is it that added court the case, earlier an Invoking Id.
at 334(citation omitted).
time . .
, 140 S. Ct. 2019, 2031 (2
to gather papers which he had indicated he would not produce produce not would he indicated had he which papers gather to . . .The congressional power to obtain information is is information obtain to power congressional .The . . he Subpoenas unless compelled to do so. is an essential and appropriate auxiliary to the the to auxiliary appropriate and essential an is
3 s Subpoena the Bryan,
7 ses inquiries into the administration of
y to the requirements of A.R.S. § 41 § A.R.S. of requirements the to y
020) (internal quotations and citations committee
ute, h cnen ta may that concerns the ). Further, ( hc, s the as which, County
quorum in the context the in quorum in this case w case this in Whitney v. Bolin v. Whitney has made it clear that
— Bryan with , 339 339 Bryan, ere
e - issued issued 1151. court , 85 85 ,
of
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F. Supp. 3d 34, 44 (D.D.C. 2018) (addressing subpoena issued by House committee) not
legislative purpose, then the purpose, Court its legislative must enforce commands valid a to pertains subpoena the If added). emphasis omitted; citations (internal 2031 at that may “concern a subject on which legislation legislation which on subject a “concern may that power for any “valid legislative purpose,” an expansive concept that encompasses anything is manifestly a valid legislative purpose. purpose. legislative valid a manifestly is officials in performing their statutory duties, with an eye to enacting potential reforms. This the accuracy and efficacy of existing vote tabulation systems and the competence of county Subpoenas the throughgleaned information and data use to intendsSenate The of elections and guard against abuses of the elective franchise.” Ariz. Const. art. VII, § 12. particular with Constituti imbued is it but power, lawmaking general conduct and administration of Arizona elections. Not only is this authority incidental to its 4 Arizona Constitution. th then (1958), 47 44, Ariz. subpoena “was a valid part of the Committee’s legitimate legislative investigation” into “the oiiain f oiia cont political of solicitation corporations subject to the regulatory jurisdiction of the Corporation Commission” and the and persons and appointive, and elective personnel, Commission Corporation between subpoena issued in the course of an investig sres f eet” n xsig programs); existing in defects” of “surveys and laws” existing of administration the into inquiries “encompasses purpose legislative
— engage in a line a in engage B. It is u is It The upshot is that President Fann and Chairman Petersen may deploy the subpoena the deploy may Petersen Chairman and Fann President that is upshot The See
on’s express directive that the Legislature must enact “laws to secure the purity the secure to “laws enact must Legislature the that directive express on’s
Exhibit 1. ndisputed Assessing Electoral Integrity
- by- 4
that the Legislature may properly enact legislation relating to the the to relating legislation enact properly may Legislature the that line review of [its] requests. [its] of review line e same prerogative must necessarily reside in Article IV of the of IV Article in reside necessarily must prerogative same e
ributions); ributions);
, 291 F. Supp. 3d at 43 (holding that that (holding 43 at 3d Supp. F. 291 LLC, Bean ation into “all phases of the existing relationship See Mazars Mazars See 8 I Buell
s a Valid Legislative Purpose
could be could , 96 Ariz. at 64 (sustaining legislative legislative (sustaining 64 at Ariz. 96 , ” ”
, 140 S. Ct. at 2031 (a valid valid (a 2031 at Ct. S. 140 USA, Bean LLC v. John Doe Bank Doe John v. LLC Bean
had.” had.” and “will not salience Mazars USA Mazars y h Arizona the by — indeed, may indeed,
, 140 S. Ct. Ct. S. 140 , to evaluate evaluate to . . , 291 291 ,
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or osre i rsos t a ogesoa sbon rcpets nitne that insistence recipient’s subpoena congressional a to response in observed court matter area ( resp with prerogativeinvestigatory Legislature’s the extinguishes somehow contest election statutory a of existence the that notion novel its for authority any muster to unable is County the fundamentally, More election. general 2020 3, November the on impact material a had they whether of regardless concern, legislative of objects legitimate elections future impact adversely may that risks security or inefficiencies procedural of existence the myopic; so not is focus Legislature’s the contrast, By (1990). 348 Ariz. 163 pervasive to change the outcome of the election. sufficiently were illegalities other or errors tabulation ballots, unlawful whether is contest election statutory a in inquiry operative the matter, initial an As merits. the on prevail not did election 2020 the with connection in claims similar or contests election brought States”); United the against directed measures active Russian to response community’s intelligence a valid legislative purpose,all ofw Daugherty elicit.” to calculated was investigation the which information the by aided objective, if “the subject was one on which legislation could be had and would be ma the that emphasized has subpoena power is not contingent upon the express articulation of any Courtparticular legislative Supreme the Indeed, sphere.”). legislative matelegiti of subcommittee a by suspected activities Congress to have a potential for undermining the morale of the Armed Forces is within the on carry to used funds of sources the into any The County’s assurances concerning its own audit carry even less import. As one As import. less even carry audit own its concerning assurances County’s The is, h Cut avne the advances County the First, The lation errors in in errors tabulation vote lso Eastland v. U.S. Servicemen’s Fund Servicemen’s U.S. v. Eastland also see , 273 U.S. 135, 177 (1927). 177 135, U.S. , 273 County , elections) that is within its constitutional purview. purview. constitutional its within is that , elections) i.e. 1.
appears to posit three rationales as to why the Subpoenas ostensibly lack
Bearing on the Legislature’s Previous
Judicial any hich fall flat. candidate or ballot measure race measure ballot or candidate
Proceedings
o sequitur non 9
See generally Huggins v. Superior Court Subpoena Power Involving , 421 U.S. 491, 506 (1975) (“Inquiry (“Inquiry (1975) 506 491, U.S. 421 , that various private plaintiffs who who plaintiffs private various that
ifrn Pris ae No Have Parties Different
— or, for that matter, that for or, ect to a subject a to ect
McGrain v. McGrain terially terially — the the are ,
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
then its own audit must itself be impermissible and and impermissible be itself must audit own its then non by audits subsequent foreclose contests election cited the of outcomes 5 has EAC premise; the EAC does not “certify” any person or entity to act as an “auditor.” Rather, the (“ Commission Assistance Election federal the omitted). citation (internal investigated.” being matters the of probative be not may or may information what of determination the alone investigation the of subject the to requested documents would reveal no improprieties, “it is manifestly impracticable to leave laboratory’s competently the Under Systems National Voluntary Accreditation Program Voting for Program Accreditation Laboratory a of Establishment competence.” laboratory of finding a is it data; calibration test/ or performance laboratory of (certification) guarantee any imply not does “accreditation cautioned, has itself agency systems voting of aspects technical delimited audit it objection: its for reason animating true the obscures ht h Snt’ sbon pwr is power subpoena Senate’s the that grace of its target. target. its of grace the upon conditioned not are execution its of means the or inquiry legislative legitimate post a (here, task investigatory the to irrelevant is that accreditation regulatory the auspices of that accreditation and does not carry any imprimatur of the EAC. A audit) anyArizona law. is from untethered
n audit by a laboratory that happens to hold an EAC accreditation is not performed under vendors under consideration. consideration. under vendors Further, the County appears County the Further, The County’s cavil that the Senate may retain an auditor who is not “certified” by “certified” not is who auditor an retain may Senate the that cavil County’s The The County’s efforts to imbue an EAC EAC an imbue to efforts County’s The accredited
accreditation (or lack thereof) lack (or accreditation conduct comprehensive post comprehensive conduct 2.
See Barenblatt See
The EAC Does Not Certify Auditors (not certified) certified) (not 5
oblivious v. United States United v. certain laboratories certain See
somehow
Am. Compl. ¶¶ 102 ¶¶ Compl. Am. - election audits election , 69 Fed. Reg. 34993, 34995 (Jun. 23, 2004).
i 10 s to the irony that if that irony the to
not dispositive not
accreditation
nt o odc eeto audits) election conduct to (not odtoe uo a hr prys federal party’s third a upon conditioned ”) is founded on a factually false false factually a on founded is ”) EAC ultra vires. , 360 U.S. 109, 109, U.S. 360 ,
, 291 F. Supp. 3d at 45 45 at 3d Supp. F. 291 LLC, Bean (not auditors) (not merely
of voting or tabulation devices tabulation or voting of
with an illusory significance illusory an with of -
110. 110. — disapproves of one of the of one of disapproves its its as it now contends now it as ability 124 But the purview of a of purview the But
to test only certain, certain, only test to (1959) ( (1959) - to lawfully and and lawfully to judicial bodies, bodies, judicial The “[I] . s the As - election
notion t — goes the the
A . .
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
activity”). undergirding a legislative inv undue burden rubrics codified in the Rules of Civil Procedure. Nor are the putative motives factual proof of the investigation’s m antecedent some on conditioned not is power subpoena legislative The feeble. equally is believes to be a satisfactory showing that its audit is in some sense “justified,” this argument “investigations.” are access permits it whom to and documents by the committee staff in the course of official business is generally power to the presiding officer and committee chairmen in each house. house. each in chairmen committee and officer presiding the to power codified what is effectively a standing and perpetual delegation of its institutional subp 1151. This statutory authorization negates any need for Miers an entail must authorizing resol committee a to delegation its whole, a as body the in invested is power contrives an illusory prerequisite. It is true that because Congress’ constitutional subpoena formal resolution of the Senate au no date to been has there that is complaint County’s the extent the To election. 2020 the of conduct its and Supervisors of Board the is which of subject the investigation, pending 149. ¶ Compl. Am. election.” general 2020 3, November the to related Senate the in investigation open an currently not determine to without saying that the scope of the Committee that once Congress Congress once that , 558 F. Supp. 3d 53, 70 53, 3d Supp. F. 558 , To the extent the County’s position is that the Sena Finally, the County contends that the Subpoenas are illegitimate because “there is “there because illegitimate are Subpoenas the that contends County the Finally,
McSurely v. McClellan v. McSurely . . 3. . . .” . .
ution. ). How the Senate chooses to use materials obtained by the Subpoena the by obtained materials use to chooses Senate the How ).
The Subpoenas Do Not Require an Authorizing Resolution oe it pseso of possession into comes See, e.g. estigation - 71 (D.D.C. 2008). In contrast, the Arizona Legislature has Legislature Arizona the contrast, In 2008). (D.D.C. 71 he Subpoenas themselves encapsulate the encapsulate themselves Subpoenas the contrary, the To , Comm. on the Judiciary, U.S. House of Representatives v. thorizing thorizing any , 553 F.2d 1277, 1296 1277, F.2d 553 , sml put, simply , erits, nor is it controlled by the narrower relevancy and subject to judicial policing.
11
’
s authority was for the House, not a witness, denominated
ouet, te usqet s o the of use subsequent “the documents,
paygrade. County’s the above far
ad hoc – te te has not made what the County 97 (D.C. Cir. 1976) (explaining 1976) Cir. (D.C. 97 “investigation,” this argument resolutions resolutions directing See Eastland, 421 U.S.
privileged legislative See
A.R.S. § 41 § A.R.S.
discrete oena See s s -
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
Ethics Committee’ evaluating legislative subpoenas. subpoenas. legislative evaluating have regularly drawn on the extraordinarily de F. Supp. 17, 21 (D.D.C. 1994) do not look to the mo eiltv iqiy hr ne b n peitbe n result.”). end predictable no be need there inquiry valid legislative a be To enterprises. nonproductive into and alleys’ ‘blind some up searchers the jury grand a of proceedings the Ethics Committee is performing the office of a legislative branch equivalent legislative investigation clearly may not exercise a discretionary veto over legislative legislative over subpoenas. veto discretionary a exercise not may clearly investigation legislative that that determining of confines narrow the beyond go not “should and narrow” is inquiry our of at 506 (internal citation omitted) 6 ( 508 at 0 (Nr s h lgtmc o a ogesoa ivsiain o e eie b wh by defined produces. The very nature of be the investigative function to investigation congressional a of legitimacy the is (“Nor 509 cognizance. judicial of matters not are information actionable yielding of likelihood its or inquiry the of worthiness perceived The analogy). jury grand occurred has none that itself satisfied has information that might possibly bear on its investigation until it has identified an offense or of the subpoena, it is necessarily “material and relevant,” and hence subject to production. or rubric defining materi defining rubric or determined by the scope of subpoena itself. The statutes impose no extrinsic reference point mtra ad relevant and “material
[the Senate]’s inquiry may fairly be deemed within its province.” province.” its within deemed be fairly may inquiry Senate]’s [the To the contrary, legislative investigations partake of grand jury inquiries, and courts h qeto o wh of question The In In short, “[t]he propriety” of a legislatives subpoena “is a subject on which the scope “ Our cases make cleardetermithatcasesmakeinOur 6
,” ,” s investigation dig t adding
tives alleged to have prom have to alleged tives ,” ,” ality or relevancy; if a document or item is responsive to the call the to responsive is item or document a if relevancy; or ality ... 41 § A.R.S. a “[]e ucin f h gad uy s o nur aot all about inquire to is jury grand the of function “‘[t]he hat
te ay given any ether (“This Court ; .”). see also See Packwood See The Subpoenas easily clear that permissive threshold.
- 14 hence 1154, Senate Select Comm. on Ethics v. Packwood ’”);
12 . has no authority to restrict the scope of the ning the legitimacy of a congressional act congressional a of legitimacy the ning subpoenaed
, 291 F. Supp. 3d at 45 (invoking (invoking 45 at 3d Supp. F. 291 LLC, Bean ferential ferential standards governing the latter when
pted it.” , 845 F. Supp. Supp. F. 845 ,
— is an endogenous inquiry that is is that inquiry endogenous an is ). like like any research
ouet o ifrain are information or documents at , 421 U.S. at U.S. 421 Eastland, See n t And 21 (“At this stage of its of stage this (“At 21 Eastland e ujcs f a of subjects he — is is that it takes , 421 U.S. U.S. 421 , , 845 t it at
we
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
Miles for subpoe for claims of attorney to the of demands a legislative subpoena. Common Law Privileges in CongressionalInvestigationsinPrivileges Law Common patient] privilege to stand as a bulwark against [Medicaid] fraud investigations”). intended agencies], state [to authority investigatory broad such granting in through compulsory process). compulsory through disclosure from immune necessarily not are they “confidential,” records education make also “practice”); of matter a as so does generally it although investigations,” committee in 897, 907 (2012) (arguing that “Congress is not obligated to respect common law privileges government. None of these caveats of branches coordinate between powers of separation the undermine would compliance (3) or recipient the of interest liberty or right protected constitutionally some on s infringe curtailed be may adduc or documents of production the for command lawful otherwise a to respect three recognized III.
State v. Zeitner , 215 Ariz. 446, 454, ¶ 21 (App. 2007) (concluding that while But A recognized A Constitutional Rights, and Are Not Germane to the Separation of Powers A. Feder Impl Not Do Privileged, Not Are Materials Subpoenaed The
naed materials); naed “[t]he terms ‘privileged’ and ‘confidential’ are not interchangeable.”
a upea sud usat o vld eiltv iqiy Seiial, an Specifically, inquiry. legislative valid a to pursuant issued subpoena l authorities analyzing the cognate investigatory powers of Congress have have Congress of powers investigatory cognate the analyzing authorities l 1. alt Ae o “rvlgd” n te ie Saue D Nt Prohibit Voted Not Compliance with Do the Subpoenas in Any Event and Statutes Cited Data the and Machine “Privileged,” Not Voting Are Ballots “Confidential,” Are They if Even
—
- only client privilege but finding that they were defeated by Legislature’s need
n ol three only and , 246 Ariz. 161, 167, ¶ 22 (2019) (“We cannot infer that the legislature, Even Confidential Materials Are Not Privileged From Disclosure privilege if (1) the subpoenaed information is privileged, (2) the subpoena subpoena the (2) privileged, is information subpoenaed the (1) if but see but The laws cited by the County pertaining to the availability the to pertaining County the by cited laws The may, in some circumstances, serve as a conditional defense conditional a as serve circumstances, some in may, — is is applicable Michael D. Bopp & DeLisa Lay, DeLisa & Bopp D. Michael oeta dfne t cmusr dslsrs with disclosures compulsory to defenses potential
See Buell 13
to to , 96 Ariz. at 69 (seemingly recognizing any
materials the County has withh , 35 35 , H
ARV federal federal and state statutes .
J.
ement of testimony of ement L The Availability of Availability The AW
the [physician the &
P icate Any Any icate Catrone UB
.
P
OL
eld. cf.
’ v. Y -
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
statutory or common law confidentiality interest were immune from compulsory process, compulsory from immune were interest confidentiality law common or statutory a subpoena) Committee Ethics to (requiring Senator to produce sensitive but non secrets trade contain that those including documents, “ that (reaffirming also claims ofprivilege by the County against the Senate. vindicable sustain cannot ballots or machines voting to access public abridge may that an involve clearly would requirement Congress.” of operations internal such the into intrusion judicial unacceptable “any that added court the production, congressional assurances of confidentiality protections as a precondition to the documents’ explaining: Commission, Trade Federal the to subpoenas or requests of prerogative the reaffirmed court the congressional committees There, to obtain private parties’ confidential trade instructive. is 1978), Cir. (D.C. 582 of voting machines and voted ballots operate as restrictions on access privilege against disclosure demanded by compulsory process issuing from the same same the from sovereign body that promulgated these issuing process compulsory by demanded disclosure against privilege a as serve to intended were they that notion the for support extrinsic or textual no is There Id. nd practically necessary. If every document or informational item that is subject to some some to subject is that item informational or document every If necessary. practically nd
at 588. Rebuffing the plaintiff’s demands that the court should require the FTC to obtain ... . Owens v. F.T.C. This abiding distinction between confidentiality and privilege is doctrinally sound doctrinally is privilege and confidentiality between distinction abiding This f h lgsaues eiiae netgtr pwr. o ti cut n a on court this For continuing powers. investigatory legitimate legislature’s the of The material that the FTC proposed to divulge . . . was fully within the scope The D.C. Circuit’s analysis in be of highly questionable constitutionality. could seriously impede the vital investigatory powers of Congress and would investigations of Congress whenever these inquiries touched on trade secrets
ai t mnae n nocd ea o te legitimate the on delay enforced an mandate to basis the Commission may not deny Congress access to to access Congress deny not may Commission the - onn Fbrls Corp. Fiberglas Corning . . Likewise, whatever statutory co statutory whatever Likewise, Exxon Corp. v.F.2d Federal589 Trade Commission,
same same statutes.
14
-
privileged entries from his diary in response
66 .d 6, 7 (.. i. 1980) Cir. (D.C. 970 966, F.2d 626 ,
”); , 845 F. Supp. at 19 19 at Supp. F. 845 Packwood, nfidentiality restrictions nfidentiality
by the general public secret information via Id.
confidential at 590 at ; see .
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
7 arising long after the election hasbeencertified andthe contest period haselapsed. disclo to subject and to, responsive 16 retention of ballots for up to § two years implicitly acknowledges that these materials may be A.R.S. that example, For materials. subpoenaed the to access 16 into a personal privilege of non Public Records Act the with conterminous effectively be would power subpoena legislative the then 1018(4) generally prohibitsshowing generally1018(4) committing acriminal act. Thisis nonsensical. ima ballot a to colleague duties— their of scope officials government by ballots of review the to application no has self-evidently easily embraces the elected the embraces easily officials,” “election exempts categorically 2 election an after months would also eiw f alt i a rvosy avse ad etfe election. certified and canvassed previously a in ballots of review 16 § A.R.S. enforcement official has already endorsed in these proceedings the Senate’s entitlement to entitlement Senate’s the proceedings these in endorsed already has official enforcement — County the 16 § A.R.S. violate would Subpoenas the with compliance county and will therefore befoundto havemodified the earlier times, the times, I 63, ¶ 11 (App. 2002) Even if the County could credibly alchemize various criminal prohibitions in Title in prohibitions criminal various alchemize credibly could County the if Even Other of the County’s interpretative contortions defy common sense. A.R.S. § 16 § A.R.S. sense. common defy contortions interpretative County’s the of Other iial, rzn’ bn n “collect[ing]” on ban Arizona’s Similarly, bureaucrats who administer them. Finally, even entertaining the peculiar theory that i dd te alt avsig ban harvesting ballot the did, it f
later de facto - 1005(H), has no plausible application to the intergovernmental transfer and transfer intergovernmental the to application plausible no has 1005(H), that would bear bear would that 2.
statute
— criminalize the County Treasurer’s The Statutes Cited By the County Are Inapplicable in other words, entirely nugatory. nugatory. entirely words, other in (“In (“In the event of a clear conflict between is usually presumed to accurately reflect the intent of the legislature legislature the of intent the reflect accurately to presumed usually is n i i dd eey ony mlye h epss isl o a or himself exposes who employee County every did, it if and . . ge during routine processing and tabulation activities would be would activities tabulation and processing routine during ge See generally See
legislators any - disclosure, the cited statutes do not prohibit the Senate’s attendant risk of prosecution, and the state’s chief law chief state’s the and prosecution, of risk attendant ue y cmusr poes n aiu proceedings various in process compulsory by, sure “another voter’s” completed ballot to a third party. It party. third a to ballot completed voter’s” “another
who draft an draft who
See — , an undefined and protean term that just as as just that term protean and undefined an , id. 15 hc ws enacted was which , 202 Ariz. 260, 260, Ariz. 202 County, Yuma v. Pijanowski
d d — enact the election laws as it does the does it as laws election the enact — harvesting , i.e.
preservation of statute.”).
- 1005(H), it is the Senate the is it 1005(H), statutes after
7
ute, h statute the Further, ... 16 § A.R.S. voted ballots enacted -
2 mnae the mandates 624 al ballots, early
at different Arizona -
624— for for 24 in the the in — see not -
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
against the sovereign Legislature in responseto avalid subpoena. Brnovich; A.R.S. § 16 8 not do materials ballot b subpoenaed the the scope of the official’s duties.” A.R.S. § 16 § A.R.S. duties.” official’s the of scope the in official government “authorized by information voter confidential otherwise to access is no warrant for the judiciary to interfere with the internal proc internal the with interfere to judiciary the for warrant no is possibly could Subpoenas the infringe. that “rights” constitutional no possess of County production the put, the seek merely which Subpoenas, capacity official its in body governmental subordinate a by records governmental these to irrelevant is that limitation action.”), governmental of forms all to as investigations to applicable is Rights of Constitution, self against privilege the and rights Amendment First as osiuin Constitution. Arizona the of 1 Section VII, Article by guaranteed ballot secret the undermines somehow voter’sright,obligationher not First, irrelevant. legally is it true, factually is ballot their on names their choices ofanygiven individual voteranygiven from ball electoral the identify to impossible is it information; identifying personally any contain not do ballots voted: ever has who anyone to known fact a of unaware remain apparently identity identity on his ballot
In short, the statutory safeguards governing public access to voter information and and information voter to access public governing safeguards statutory the short, In B. Indeed, with respect to voter information, Arizona law affirmatively authorizes authorizes affirmatively law Arizona information, voter to respect with Indeed, While the legislative subpoena power is tempered by the individual libertiesindividual the by tempered is power subpoenalegislative the While The County’s Amended Complaint resurrect s Even if the County’s supposition that a small number of voters opt to sign or write or sign to opt voters of number small a that supposition County’s the if Even
See Exxon see generally Watkins v. United States United v. Watkins generally see The Subpoenas Do Not Violate Any Person’s Constitutional Rights See los allots.
m Cml ¶ 160- ¶¶ Compl. Am. , 589 F.2d at 590 (“
has freely abjured his right to anonymity; he has -
1021 clothe the County with an evidentiary privilege that it may assert may it that privilege evidentiary an with County the clothe See
(conferring enforcement power on the Attorney General) Attorney the on power enforcement (conferring
mcs Curiae Amicus . A A . voterwho here [W] constitutional rights are not violated, there
6. h Sprios h oese elections oversee who Supervisors The 162. 16
(for whatever reason) whatever (for
- 168(F). re o Aioa tony eea Mark General Attorney Arizona of Brief , 354 U.S. 178, 188 (1957) (“The (“The (1957) 188 178, U.S. 354 , its its bizarre argument that the Subpoena
-
incrimination ot. edures ofCongress 8
chooses to divulgehis to chooses not been deprived by — ballotsecrecy guaranteed by the by guaranteed . Simply Simply . . ”). —
. . such Bill
is a a is
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
appropriations authority). Congress’ to subject are also and legislation” congressional by regulation to subject all are assistants his of duties the and General, Attorney the of duties and powers the Justice, the of functions “the that noting General, Attorney the into investigation its See McGrain into their exe responsibilities of the Board or other county officials only underscores that an investigation statutory the change prospectively to authority Legislature’s the Indeed, discretion. its in embody 16 Title of incarnation delegations current the under possess officers County the duties and functions The law.”). by prescribed as be shall officers [county] of qualifications and Page necessary by or expressly been legislature.” state the by have them to delegated implication, as powers such only have state the of counties of boards “[t]he contrary, the To all. at elections of conduct the in role ordained constitutionally no enjoys Board The case. this to germane not are coequal branches, coequal assertable by, number of unnamed persons, any rights secured by Article VII, Section 1 are vested in, and notion that the Subpoenas curious this indulging even Finally, ballots. these processing and handling of course the a is name his C inscribed then offense, voter constitutional the which on ballot a of inspection visual mere party’s fact in if Second, media). social on ballots voted own their of images publicize to the state of any constitutional privilege. , 68 Ariz. 393, 395 et oan of domains indepen dent the on infringe not may subpoenas legislative Although C.
by the Legislature itself rcise of those duties is necessarily in furtherance of a valid legislative purpose. , 273 U.S. at 177
The Subpoenas Do Not Implicate Separation of Powers Principles those those see Trump see
citizens – 96 (1949); could conceivably compromise
— - - 2034 at Ct. S. 140 , ounty officials ounty not the County. 78 (holding that Congress’ oversight responsibilities justified , w see also hich the Legislature may maintain, rescind or modify
Cf. A.R.S. § 16 17 Ariz. Cons themselves are guilty of serial infractions serial of guilty are themselves
35, such separation of powers concerns powers of separation such 35,
t. art. XII, § 4 (“The duties, powers, - 1018(4) (recognizing voters’ right Associated Dairy Products Co. v. Co. Products Dairy Associated the the secret ballot of an unspecified supervisors of the various the of supervisors
Departmentof
a third a
in in
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
void, inert, be will part no that so meaning given be must sentence and clause, phrase, word, “[e]ach A documents.” or papers books, relevant and electronic form. A legislative subpoena may command a recipient to produce “any material D IV. maintain [are] not only in physical but also in digital form”). 20 Cir. (9th to subject is metadata, law.”); records embedded public our under disclosure any including record, the of version electronic the whe that hold . . . (“We if not pursuant to A.R.S. § 41 § A.R.S. to pursuant not if nonethel they media, electronic in inherent subpoena power. power. subpoena inherent respects. all in enforceable and lawful valid, are Subpoenas the pleadings n cmue, lcrnc trg dvc, r n ohr eim” medium.” other any or device, storage electronic computer, a on commonly as Indeed, materials. tactile or physical just not encompasses that ambit expansive an with it imbue to intent an imparts “papers” and “books” from distinct classification a as “documents” Yates, v. Phoenix of City ICTIONARY Materials are not immune from compelled disclosure merely because they exist in exist they because merely disclosure compelled from immune not are Materials Electronic Documents Are Thus, although some of the materials sought by the Subpoenas are stored or reified or stored are Subpoenas the by sought materials the of some although Thus, o te oeon raos te or sol enter should Court the reasons, foregoing the For against the Plaintiffs and in favor of President Fann and Chairman, finding that finding Chairman, and Fann President of favor in and Plaintiffs the against
redundant, redundant, or trivial.” 3 (oig n orh mnmn cnet ht “[t]he that context Amendment Fourth in (noting 13)
(11th ed. 2019); 2019); ed. (11th
understood, the term ‘document’ “embraces any information stored information any “embraces ‘document’ term the understood, n a public entity maintains a public record in an electronic format, electronic an in record public a maintains entity public a n
9 rz 6, 2 14). ht h Lgsaue enumerated Legislature the That (1949)). 72 68, Ariz. 69 - cf. Lake v. City of Phoenix of City v. Lake cf. 1154, then certainly under the auspices of the Legislature’s the of auspices the under certainly then 1154, State v. ess remain “documents” that are subject to disclosure to subject are that “documents” remain ess Subject to the Legislative Subpoena Power C
ONCLUSION
Burbey, 243 Ariz. 145, 147, ¶ 10 (2017) (quoting United States v. States United 18 .R.S. § 41 § .R.S.
- 1154. When construing a statute, a construing When 1154. , 222 Ariz. 547, 551, ¶ 14 (2009) (2009) 14 ¶ 551, 547, Ariz. 222 , declaratory a , 709 F.3d 952, 957 957 952, F.3d 709 Cotterman,
papers judgment on the the on judgment B e rae and create we LACK
’ S L AW —
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
RESPECTFULLY
SUBMITTED
By: this this
19 Phoenix, Arizona 649 North Fourth Avenue, First Floor Thomas Basile Kory Langhofer /s/Thomas Basile /s/Thomas PLLC STATECRAFT Warren Petersen CommitteeJudiciary Chairman President Karen Fann and Senate Attorneys for 22nd
day of February21 , 20
Defendants
85003
Arizona Senate .
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
[email protected] Phoenix, Arizona 2375 East Camelback Road, Suite 750 Hinshaw & Culbertson LLP Steven W. Tully a Notice ofElectronic Filing to the following registrants: TurboCourt oftransmittal and filingfor System TurboCourt the using Office Clerk’s the to document Thomas Basile By: Attorneys for the Democratic Members of the Senate Judiciary Committee [email protected] [email protected] Tempe, Arizona 85283 401 West Baseline Road, Suite 205 Barton Mendez Soto PLLC Jacqueline Soto Mendez James Barton Attorneys for the Plaintiffs [email protected] JDoran@Sherma Phoenix, Arizona 85004 201 East Washington Street, Suite 800 Sherman & Howard L.L.C. Craig A. Morgan John Alan Doran [email protected] Phoenix, Arizona 85003 225 West Madison Street Maricopa County Attorney’s Office Thomas P. Liddy, Deputy County Attorney
_/s/Thomas Basile I hereby certify that on
nHoward.com
85016
-
2327
CERTIFICATE OF SERVICE
February
22, 2021, I electronically transmitted the attached
Exhibit 3
Exhibit 3
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
n MRI QEAA i ter official LUPE their in QUEZADA, MARTIN LEACH, and VINCECONTRERAS,ANDREA Commit BORRELLI, Judiciary Arizona the Senate of official Chairman his Vice as in capacity GRAY, Judiciary RICK Senate Committee; Arizona the of Chairman EDDIE as capacity Senate; official his in Arizona FARNSWORTH, the of President KAREN v. County Board of Supervisors their Maricopa the of Members as capacitiesofficial in GALLARDO, STEVE and GATES, CHUCRI, STEVE SELLERS, JACK and Supervisors; of of Board Chairman County as Maricopa capacity official his in MARICOPA COUNTY; CLINT aaiis s h Mmes f h Arizona the of Senate Judiciary Committee Members the as capacities
Committee Chairman Eddie Farnsworth Counterclaim Kory Langhofer, Ariz. Bar No. 024722 Thomas 649 North Fourth Avenue, First Floor Attorneys for Karen Fann and Senate Judiciary AN i hr fiil aaiy as capacity official her in FANN, [email protected] Phoenix, Arizona 85003 IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA STATE THE FOR COURT SUPERIOR IN THE [email protected] Basile, Ariz. Bar. No. 031150 (602) 382 (602)
Arizona Senate President Defendants/P- laintiffs IN AND FOR THE COUNTY MARICOPAOF COUNTY THE FOR IN AND P laintiffs - 4078
DALESSANDRO, , , , , , , tee; SONNY SONNY tee;
HICKMAN,
in
BILL
the the
- PLAINTIFFS EXPEDITED RULING MOTION FOR PRELIMINARY
(Assigned to the Hon. Timothy Timothy Hon. the to (Assigned No.
INJUNCTION
CV2020 Thomason) IN - COUNTERCLAIM’S *** ElectronicallyFiled Clerk oftheSuperiorCourt 12/29/2020 12:08:26PM
Filing ID12373982 M. Bouise,Deputy - 016840 REQUESTED
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
Supervisors, of Board County Maricopa the of member a as the capacity official of his in GALLARDO, STEVE member of a Board County as Maricopa capacity official his in HICKMAN, CLINT Supervisors; of Board official his County Maricopa the of member a in as capacity GATES, of Board BILL County Supervisors; Maricopa the Supervisors; of member of Board h in CHUCRI, STEVE the of County member a Maricopa as capacity of official OF his in body SELLERS, BOARD governing JACK Arizona; County, Maricopa the COUNTY SUPERVISORS, MARICOPA v. Judiciary Senate Arizona Committee, the of EDDIE as capacity Chairman Senate; official his Arizona in FARNSWORTH, the as of capacity official President her in FANN, KAREN ______
Defendants Counterclaim, P
Defendants Counterclaim. laintiffs is official capacity as a a as capacity official is uevsr; and Supervisors; -in- -in- . . - in - -
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
or make available in full to himn f h Snt Jdcay omte, oe h Cut o enter to the compelling order other or injunction Court the move Farnsworth, Committee, Eddie Judiciary Senate and the Senate, of ArizonaChairman the of President Fann, Karen Counterclaim issued by President Fann and Chairman Farnsworth on December 15, 2020. 2020. 15, December on Farnsworth Chairman and Fann President by issued documents, records, materials, and information responsive to either or both of the to efforts County’s The grace. legislative of product a are elections of Whatever functions and duties the County’s officers possess in connection with the conduct Constitution. 41- §§ chairmen, committee and officers presiding its to Legislature the by delegated “ (the election general validlyissuedpursuawereSubpoenas 2020 3, November the with connection in ballots of tabulation and casting the to relating materials and information documents, legislative two of defiance continuing compulsory process compulsory protections are as logically incongruous as they are legally unsustainable. L injunctive relief is necessary to remediate the ongoing informational injury to the the to injury informational ongoing the remediate to necessary is relief injunctive Legislature of information to which it is constitutionally and statutorily entitled, immediate Legislature. the against privileges assertable are that
egislature’s own discretionary delegations as some sort of shield from legislative oversight usat o ... § 12 §§ A.R.S. to Pursuant None of the h Mrcp Cut Bad f uevsr (eefe, h “ the (hereafter, Supervisors of Board County Maricopa The Because the County’s unlawful disregard of valid legislative subpoenas deprives the 1151, that attach to certain voter data and ballot materials d that to attach voter data and ballot materials certain t seq et
MEMORANDUM OF POINTS AND AUTHORITIES
County’s purported excuses for its obduracy is viable as a matter of law. — ., which is itself derived from Article IV, Part 2 of the Arizona Arizona the of 2 Part IV, Article from derived itself is which ., and, in any event, any in and, President Fann or Chairman Farnsworth - 2212, I nt to the plenary grant of subpoena power statutorilypower subpoena of grant plenary the to nt NTRODUCTION subpoenas seeking access to, or the production of, production the or to, access seeking subpoenas
Counterclaim Defendants they - 81 ad rz R Cv P 6, Plaintiffs 65, P. Civ. R. Ariz. and 1801, 1
invest
County the in
T he statutory confidentiality o not inoculate them from
to immediately produce produce immediately to no cognizable rights or rights cognizable no (or (or Subpoenas ) tns in stands County”) their
weaponize preliminary a
designees) all see s ) Both ”). ubpoenas A.R.S.
- the the in -
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
it is is it thereafter initiated thereafter are Subpoenas
aioa ony d o Supervisors of Bd. County Maricopa 1 preliminary injunctive relief. seek now and action, this in counterclaim a filed have instead Farnsworth Chairman and Subpoenas representatives. and Legislature – 410 407, Ariz. 212 , Comm’n Elections Clean Citizens Ariz. v. Smith generally See balance of hardships favors the movant, and (4) whether public policy favors an injunction. the movant not remediable by damages if the requested relief is not granted, (3) whether the that the movant will succeed at trial on the merits, (2) the possibility of irrepar impelling President Fann and Chairman Farnsworth to file a separate separate a lawsuit file to Farnsworth Chairman and Fann President impelling thus 2021, 4, January least at until relief emergency for request any on act to unavailable Civil the by advised was undesigned Administration staff that the Judge Mahoney, to whom proceedings, this action was originally these assigned, was in counterclaim a as action produced or made available made or produced County. the upon served promptly were which Subpoenas, 2020, attached hereto as hereto attached 2020, President Fann and Chairman Farnsworth leave to file 12- § A.R.S. comply with the Subpoenas.
nafl n a odr usig hm Peiet an n Cara Farnsworth Chairman and Fann President them. quashing order an and unlawful ople t d so do to compelled On December 15, 2020 President Fann and Chairman Farnsworth jointly issuedjointly Farnsworth Chairman and FannPresident 2020 15, December On In In considering a motion for preliminary relief, this Court evaluates (1) the likelihood While President Fann and Chairman Farnsworth initially sought to lodge the special On December 23, Judge Warner dismissed the special action, but commented that commented but action, special the dismissed Warner Judge 23, December On — , and apparently apparently and , the the County filed suit in this Court, requesting a declaration that the Subpoenas 22 rvds “luil” lentv bss o jrsito ad granted and jurisdiction for basis alternative “plausible” a provides 2212
to to 1
a special action seeking a writ of mandamus requiring the requiring mandamus of writ a seeking action special a idct te osiuinl rrgtvs f rzn’ elected Arizona’s of prerogatives constitutional the vindicate . In the interest of litigation efficiency, President Fann Fann President efficiency, litigation of interest the In A. Exhibit O Dcme 1, 2020 18, December On . does
any
F not intend to comply with the Subpoenas unless and until and unless Subpoenas the with comply to intend not ACTUAL documents, information or materials in response to the to response in materials or information documents, - CV2020 , A
RGUMENT B ACKGROUND 2
194 Dcso Odr ae Dc 23, Dec. dated Order Decision 016904,
an amended complaint. —
the return date specified in the the in specified date return the
To date, To
the the County has County . able injury to See
County to County
Fann v. 411, ¶ 411,
not the the
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
I. relief. preliminary of issuance considerations his favor.” a public officer in the courseofhis orherlegal duties. (2006); 10 injury; injury; “ establishes it if relief injunctive to entitled is movant a and scale, sliding a on considered are factors 10 (App. 2019); in an action an pendingin beforeit.” occurred had failure such though the as proceed thereupon shall court the where and held, is hearing court superior the to apply facts, the forth setting affidavit by “may, officer prerequisites to the Court’s civil enforcement jurisdiction:
1. 2.
President Fann and Chairman Farnsworth Are Highly Likely To Succeed on The Legislature has authorized this Court to civilly enforce any subpoena issued by issued subpoena any enforcecivilly to Court this authorized has Legislature The A. Immediately Enforceable and Valid Substantively Are Subpoenas the That Claims Their of Merits the Section 12 Importantly, the moving party need not establish all four four all establish not need party moving the Importantly, If the subpoena’s r court. superior the in actions civil in as manner like evidence, administer oaths to witnesses, and cause depositions to be taken, in documentary of production and witnesses of attendance compel subpoenas, to law by authorized is officer public a When hs dsiln te ttt t is osiuie lmns tee r tre necessary three are there elements, constitutive its to statute the distilling Thus, or The subpoena was issued by a “public officer”; The issuing pub
(b) (b) the presence of serious questions Shoen, 167 Ariz. at 63 (emphasis added); Apache Produce Imports, LLC v. Malena Produce, Inc. Produce, Malena v. LLC Imports, Produce Apache either § 12- Over Jurisdiction Has Court The — , 167 Ariz. 58, 63 (App. 1990). 1990). (App. 63 58, Shoen Ariz. v. Shoen, 167 whether evaluated individually or in any given permutation given any in or individually evaluated whether - 2212(A) of the Arizona Revised Statutes states that:
2212
(a) probable success on the merits and the possibility of irreparable irreparable of possibility the and merits the on success probable (a) lic officer was “authorized by law to take evidence”; and evidence”; take to law by “authorized was officer lic ecipient fails to timely comply with its demands, the issuing public
Id.
§ 12-
2212(B). 3
and ‘the balance of hardships tip sharply’ in the the Smith, 212 Ariz. at – 410 Counterclaims Pursuant to A.R.S. to PursuantCounterclaims
take evidence, he may issue issue may he evidence, take
, 247 Ariz. 160, 164, ¶ ¶ 164, 160, Ariz. 247 , lmns Rte, the Rather, elements.
411. All four —
impel the the impel
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
unquestionably are “public officers.” Although Title 12 itself contains no explication of the Each of these conditions is present on the face of the Verifi officer. the of employees mere or clerks than other officer, the of duties and powers the exercising assistant or deputy his or commission, or board any of term, it is defined elsewhere by statute to encompass “the incumbent of permissibly issue subpoenas); A.R.S. § 38 § A.R.S. subpoenas); issue permissibly 12 Section construing I82 123, Op. Gen. member of the legislature” for purposes of financial disclosure mandates). “office,” in turn, is “anyoffice .ofthe state.” legislative subpoenas may permissibly compel the production of “books, papers or or County papers the “books, While of production documents”). the compel permissibly may subpoenas legislative §41 evidence” byA.R.S. chairman of any committee” to issue “a subpoena.” 2212. specific Subpoenas is appropriately a matter of judicial cognizance pursuant to A.R.S. § 12 Because Farnsworth prerequisite. jurisdictional underlying the with confounded be cannot requests particular these of scope and nature the to objections (1936) (finding that “it is not necessary that the affidav the that necessary not is “it that (finding (1936) 12 Section of auspices the under Further, relief. appropriate for Court this to “appl[ies]” and compliance 3.
First Second, , the Verified Counterclaim delineates “facts” detailing the the detailing “facts” delineates Counterclaim Verified the Third, forth in an “affidavit” the facts compelling relief. factscompelling the “affidavit” an in forth set and remedies enforcement for Court Superior the to applied officer public The
the Verified Counterclaim’s averments were sworn under oath by President Fann Fann President by oath under sworn were averments Counterclaim’s Verified the , Senate President Fann and Judiciary Committee Chairman Farnsworth Farnsworth Chairman Committee Judiciary and Fann President Senate , r gnrly atoie” o su sbons te enforceability the subpoenas, issue to “authorized” generally are rsdn Fn ad himn Farnsworth Chairman and Fann President -
3 (eyn o ARS § 38 § A.R.S. on (relying 133 - 22 n cnldn ta sho dsrc gvrig or could board governing district school that concluding and 2212 - 1151, whichenables “the presiding officer of either hou - 2212(B). 2212(B). challenges
- 541(8) (denoting “public officer” to include “a include to officer” “public (denoting 541(8) 4
See
Id. eti attributes certain
Collins v. Streitz v. Collins - 0’ dfnto o “ulc fie” in officer” “public of definition 101’s
§ 38- See also id.
it be separate and distinct from the the from distinct and separate be it 101(1);
rsdn Fn ad Chairman and Fann President ed Counterclaim.
r “uhrzd . t take to . . . “authorized are ” A.R.S. § 38- § A.R.S. ” § 41-
See see also
, 47 Ariz. 146, 150 146, Ariz. 47 , of the Subpoenas, Subpoenas, the of
A.R.S. § 12 - § A.R.S. 1154 (indicating that
any office, member 1982 Ariz. Att’y
County’s
101(3). An An 101(3).
2212(B). se orthe f these of non- – 51 its its -
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
by both statutory and constitutional sources of authority. (1976). To this end, end, this To (1976). that what the Legislature means, it will say.” §§ 3. 1(2), or a petition signed by two 2 no is not there and remedial, generally proviso. or caveat exception, an by cabined not is text statutory plain The 2212(B). 12 § A.R.S. it.” before pending action an in occurred had Subpoenas] the with comply [to failure such though “as measures remedial appropriate all and any enforce and issue offic public by by the plaintiff but itself, complaint effective the asnow, Legislature avenueforredresswhen, hasalready adjourned. A.R.S. § 12 § A.R.S. by furnished framework enforcement civil general the of, exclusive not and to, cumulative actually in session, is Legislature the when year the of months few the during only approved and presented be can resolution contempt a Because sense. practical makes enforcement civil of right a
read
President Fann and Chairman Farnsworth’s issuance of the Subpoenas is sustained is Subpoenas the of issuance Farnsworth’s Chairman and Fann President B. The Legislature can be convened in a special session only by the call of the Governor Questions of statutory interpretation are undergirded by a fundamental “presumption The interpretive query is linear and conclusive: because the Subpoenas were issued were Subpoenas the because conclusive: and linear is query interpretive The h cnep poedns niae b ARS § 41 § A.R.S. by envisaged proceedings contempt The
an
Guerrero v. Copper Queen Hosp. Queen Copper v. Guerrero
exception - 2212. Indeed, the Legislature’s supplementation of its con its of supplementation Legislature’s the Indeed, 2212. 1. the Legislature’s Inherent Authority Under Article IV of the the of Constitution IV Article Under Authority Inherent Legislature’s the 41 § A.R.S. to Pursuant Issued Validly Were Subpoenas The . ers pursuant to statutorily conferred authority, the Court the authority, conferred statutorily to pursuant ers ”).
see
Statutory Authority it is sufficient if it is a part thereof, provided that pleading is verified verified is pleading that provided thereof, part a is it if sufficient is it .”). “the best and most reliable index of a of index reliable most and best “the A.R.S. § 41-
- thirds of each house’s members. members. thirds of house’s each
exception 1153(A), civil proceeding
r iiain ttd n hm W will We them. in stated limitation or , 112 Ariz. 104, 107 (1975) (“The (1975) 107 104, Ariz. 112 , 5 Padilla v. Indus. , Comm’n 113 Ariz. 104, 106
statute’s See s are legislative officers’ only
Ariz. Const. art. IV, pt. 2, - 13 hs r merely are thus 1153 meaning tempt powers with with powers tempt has jurisdiction to to jurisdiction is the plain plain the is statutes - 1151 and 1151 2 Arizona
See are -
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
relevant,” and hence subject to production. to subject hence and relevant,” and “material necessarily is it subpoena, the of call the to responsive is item or document statutes impose no extrinsic if reference a or relevancy; pointmateriality defining or rubric The itself. subpoena of scope the by determined is that inquiry endogenous an is relevant” 5 4 3 Maricop records.” produce or questions relevant answer to refuse they if . power, that “[i]t is within Court commented, in the only published case to date concerning the Legislature’s subpoena limitations, conditions or caveats. Heeding this clear textual directive, the Arizona Supreme id. control,” his under or possession his in documents or papers books, relevant and material “any produce to fails who individual subpoenaed a for sanctions criminal contemplates or that provides Statutes Revised Arizona the of text of the statute.” 2013). (1988); 302 297, Ariz. 156 Gordon, with 41- Section to pursuant to subpoenas power issue statutory unilaterally independent Farnsworth’s) Chairman matter, that for (or, President’s constitutionalare well within those limitations,parameters. these Subpoenas “issued by the order of the Senate.” Com Senate.” the of order the by “issued Committee Judiciary the to Chairman Farnsworth materials the and with compliance documents date, set any on committee tende to “witness” County some requires necessarily Subpoenas given any before testify to individual Judiciary Committee chairman
and to issue subpoenas and to summon witnesses generally and punish them for contempt “the chairman of any committee” may issue “[a] subp issue“[a] committee”may any of “thechairman § 41- § internal h qeto o wehr n gvn ouet o ifrain r “aeil and “material are information or documents given any whether of question The In In short, because (1) the Subpoenas were properly issued by the Senat h Cut nts ht eae ue atoie te rsdn t sg subpoenas sign to President the authorizes 2 Rule Senate that notes County The discussed As While the County makes much of the fact that neither Subpoena mandates a specific 1154. The statutory authorization is not confined by any substantive or temporal or substantive any by confined not is authorization statutory The 1154. 66 62, Ariz. a County, 96
legislative legislative rules
State v. Christian, 205 Ariz. 64, 66, ¶ 6 (2003). Here, Section 41 infra presently
the powers of legislative committees to conduct investigations investigations to conduct committees of legislative powers the Section I.C Section
of procedure are non 5
see no need to elicit pursuant to a statutory grant of authority (1964) , 20 F. Supp. 3d 148, 168 (D.D.C. (D.D.C. 168 148, 3d Supp. F. 20 Boehner, v. Rangel , even if the subpoena power is cabined by implicit implicit by cabined is power subpoena the if even ,
. pl. ¶¶ 63 ¶¶ pl. 3
4
6
either
- - justiciable justiciable in any event. 64. But nothing in Rule 2 displaces thedisplaces 2 Rule innothing But 64. verbal
“the presiding officer of either house” either of officer presiding “the 1151—
oena,” andacompanionprovision
testimony testimony from such individual (although and questions of compliance of questions and
r or produce the requested requested the produce or r Buellofv.SuperiorCourt
rsdn Fn and Fann President
and (2) the County e President and See Mecham v.
- 1151 . . ) .
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
omitted). Trump v. Mazars USA, LLP the Arizona Constitution. Constitution. Arizona the 85 Ariz. 44, 47 (1958) 47 44, Ariz. 85 , 243 Ariz. 456, 459, ¶ 7 (2018) 7 ¶ 459, PLC 456, v. Ariz. Higgins, 243 6 an implicit investigatory functio embodies which Constitution, Arizona the of IV Article from emanate statutes controlling the apply we unambiguous, and 12 § A.R.S. to pursuant Court this in enforcement faci are Subpoenas the demands, Subpoenas’ the to relevant” and “material are that information and documents over control legal exerts or possesses power of the Congress and its committees embedded in Article I of the federal Constitution: ocrs te ony s sbriae oiia sbiiin nt ceul rnh or branch coequal a not subdivision, political subordinate a department of sta is such County no trigger the Subpoenas concerns; these Branch, Executive the from information or documents tempered by the sepa sovereignty and an ineluctable corollary of its lawmaking functions. fies n cmite chairmen, committee and officers power is limited by express or inferential provisions of the Constitution
or political system for the purpose of enabling the Congress to remedy them. and existing laws, studies broad of of proposed laws, and administration surveys is of defects the in our social, into economic information inquiries obtain encompasses It to indispensable. power congressional .The . . function o noc it enforce to In sum, the Legislature’s investigatory powers investigatory Legislature’s the sum, In
lhuh h Cut ed o vnue eod il 4 t rsle hs ae the case, this resolve to 41 Title beyond venture not need Court the Although or issue subpoenas, but we have held that each House has power to secure to power needed information has in House order to each legislate. that This held power have of inquiry we but subpoenas, issue or e no has Congress cognate the discussing in reaffirmed recently Court Supreme States United the As lhuh the Although 6
Given that “ that Given 2.
te government. government. te
— Constitutional Authority ration ration of powers principles implicated by the compelled production of Mazars s n seta ad prpit au appropriate and essential an is , then the same prerogative must necessarily reside in Article IV of of IV Article in reside necessarily must prerogative same the then , the power of the the of power the numerated constitutional power to conduct investigations conduct to power constitutional numerated
, 140 S. Ct. 2019, 2031 (2020) (internal quotations and citations
or cuind ht hs ivsiaoy oes a be can powers investigatory these that cautioned Court n that is intrinsic to the Legislature’s sovereign authority.
meaning and our inquiry ends.” inquiry our and plain meaning See infra Section I.D. see
... 41- § A.R.S. [Arizona] [Arizona] 7
(inter - 2212. 2212. legislature is plenary plenary is legislature 1151— nal quotation omitted). —
as exercised through its presiding its through exercised as iir t te legislative the to xiliary When, as here, “ here, as When, r a osiuie trbt of attribute constitutive a are
ly ai ad ujc to subject and valid ally
— Butler Law Firm, Law Butler ,” with process Whitney v. Bolin . . . . . the
text unless that unless
is clear clear is
,
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
of the subpoenaed materials to that purpose of a grand jury proceedings the Ethics Committee is performing the office of a legislative branch equivalent Packwood v. Ethics on Comm. standards governing the latter when evaluating legislative subpoenas. the on drawn regularly have courts and inquiries, jury grand of legislation could be had.” had.” be could legislation codified in the legislative subpoenas are not controlled by the narrower relevancy and undue burden rubrics (addressing subpoena issued by House committee) (internal citations omitted). Importantly, the . . . investigation.” materials the Government seeks will produce information relevant to the general subject of of category the that possibility reasonable no is there that “determines it unless commands pu legislative valid a to pertains subpoena the the Arizona Constitution, these Subpoenas easily pass muster. muster. pass easily Subpoenas these Constitution, Arizona the expansive for power subpoena the deploy may Farnsworth relating to relating t circumscribe that limitations the that however, assuming, Even power. subpoena Legislature’s the of nature
Each criterion Each plig h fdrl tnad o hs context, this to standard federal the Applying It is (or should be) undisputed that the Legislature may properly enact legislation legislation enact properly may Legislature the that undisputed be) should (or is It or scope the on constrictions substantive no imposes 41 Title above, discussed As C.
the conduct and administration of Arizona elections. Not only is this authority authority this is only Not elections. Arizona of administration and conduct the concept 1. Impermissibly Impermissibly Broad S Subpoenas The
.”). Rules of Civil Procedure. To the contrary, legislative investigations partake
he congressional investigatory power are power investigatory congressional he
that encompasses anything that may “concern a subject on which which on subject a “concern may that anything encompasses that Valid Legislative Purpose — Bean LLC v. John Doe Bank , the existence of a valid legislative purpose and the the and purpose legislative valid a of existence the , i.e. Mazars USA Mazars , 845 F. Supp. 17, 21 (D.D.C. 1994) (D.D.C. 21 17, Supp. F. 845 , erve a Valid Legislative Purpose and Are Not Not Are and Purpose Legislative Valid a erve
, 140 S. Ct. at 2031 (internal citation omitted). If omitted). citation (internal 2031 at Ct. S. 140 , — 8
is addressed below. addressed is
ps, hn h Cut ut noc its enforce must Court the then rpose, , 291 F. Supp. 3d 34, 44 (D.D.C. 2018) a ny
vld eiltv proe” an purpose,” legislative “valid rsdn Fn ad Chairman and Fann President also
extraordinarily deferential extraordinarily
implicit in Article IV of of IV Article in implicit
At this stage of its of stage this (“At See id. ; te Senate Select materiality
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
the Arizona Constitution’s express directive that the Legislature must enact “laws by significance particular with imbued is it but power, lawmaking general its to incidental VII, § 12. the purity of elections and guard against abuses of the elective franchise.” Ariz. Const. art. ponie ad esn ad oprtos ujc t te euaoy uidcin f the of jurisdiction regulatory Corporation Commission the to subject corporations and persons and appointive, r existing the “ into investigation an of course the in issued programs); subpoena legislative (sustaining existing in defects” of “surveys and laws” existing legisla valid (a 2031 at Ct. superintend the manner of selecting Presidential Ele information which the investigation was calculated to elicit”). to calculated was investigation the which information the by aided materially be would and had be could legislation which on one was subject legislat a express not did Senate though even because purpose into Attorney General’s alleged failure to prosecute certain crimes was for a valid legislative 273 U.S. 135, 177 (1927) (subpoena seeking bank records in connection with investigation measures directed against the United States”); active Russian to response community’s intelligence “the into investigation” legislative at 3d Supp. purpose. legislative valid a manifestly is This Legislature. Fifth statutory duties, with an eye to introducing potential reform proposals in the imminent Fifty of efficacy and accuracy existing vote tabulation systems and the competence of county the officials in performing their evaluate to Subpoenas the through gleaned information of the Armed Forces is within the legitimate legislative sphere.”); legislative legitimate the within is Forces Armed the of morale the undermining for potential a have to Congress of subcommittee a by suspected activities on carry to used funds of sources the into (“Inquiry (1975) 506 491, U.S. 421 The County appears to propose three reasons why the Subpoenas ostensibly ar ostensibly Subpoenas the why reasons three propose to appears County The and data use to intends Legislature the Counterclaim, Verified the in forth set As In In addition, the Legislature is separately
3 hlig ht upea ws vld at f h Cmites legitimate Committee’s the of part valid a “was subpoena that (holding 43 ltosi bten oprto Cmiso pronl eetv and elective personnel, Commission Corporation between elationship
” and the solicitation of political contributions); tive purpose “encompasses inquiries into the administration of of administration the into inquiries “encompasses purpose tive
9
see also Eastland v. U.S. Servicemen’s Fund
instructed ctors.
See by the federal Constitution to
U.S. Const. art. II, § 1. ive objective, “[p]lainly the the “[p]lainly objective, ive
See Mazars USA Mazars See McGrain v. D v. McGrain Buell Bean LLC , 96 Ariz. at 64 64 at Ariz. 96 , all phases of phases all augherty,
to to secure , 140 S. S. 140 , , 291 F. e not e
- ,
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
f h mtvs hc surd h eecs of exercise the spurred which motives the of immaterial;“ is issuance Subpoenas’ Preliminarily, the actual or imagined subjective motivations that may have precipitated the merit. lack to deemed previously have courts Arizona that contests” no State of Secretary the neither creation; legislative a is infrastructure electoral respectively. administration and material impact on the November 3, 2020 general election. elections advers may that risks security or inefficiencies procedural matter, that of existence the myopic; so not is focus Legislature’s Court Superior v. Huggins generally See United the to findings its transmit potentially to desires Senate the while point, the to More it.”). prompted have to alleged motives the to look not do we act congressional a of legitimacy the determining in that United States, 360 U.S. 109, 132 (1959); analysis. perfunctory a even withstands which of none purpose, legislative valid a of furtherance in errors or other illegalities were sufficiently pervasive operativeThe statutoryinquiryain election contestwhether isunlawful ballots, tabulation investigatory electoral prospective of — reforms formulation the in assist to information amass to is objective 2021, 6, January on returns College Electoral ipsto of disposition accepting First , the County suggests that the Subpoenas “usurp[]” the election election the “usurp[]” Subpoenas the that suggests County the Second,
— not “adjudicate ” not arguendo are legitimate objects of legislative concern, regardless of whether they had a had they whether of regardless concern, legislative of objects legitimate are te ony otns ht h Sbons ek o re to seek Subpoenas the that contends County the , f See e cited the of outcomes the unctions, hr pris eeto contests election parties’ third
Compl. ¶¶ 94
canvassing duties entrusted to county officers and the Secretary of State,
the facially dubious and legally unsupported proposition that the the that proposition unsupported legally and dubious facially the the legal rights or obligations of any third party. third any of obligations or rights legal the - 97. This position, however, overlooks that the state’s entire
States Congress in advance of its consideration of the of consideration its of advance in Congress States the Judiciary lacks authority to intervene on the basis basis the on intervene to authority lacks Judiciary the
Eastland 10 , 163 Ariz. 348 (1990). By contrast, the the contrast, By (1990). 348 Ariz. 163 ,
see
te invest [the could , 421 U.S. at 508 (“Our cases make clear
3 U.S.C. § 15, the Subpoenas’ primary Subpoenas’ the 15, § U.S.C. 3 court cases are irrelevant in any event. any in irrelevant are cases court
to to change the outcome of th
oeo cral h Legislature’s the curtail somehow any igatory] vote tabulation errors tabulation vote
power.” - duiae “election adjudicate See l ipc future impact ely Finally, even Finally,
op. 93. ¶ Compl. Barenblatt e election. — r county county r or, for or,
v.
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
choices ofanyindividual from determine quite literally, quite has “usurped” a power that it alone necessarily in furtherance of a valid legislative purpose. In short, to say that the Legislature and o county Secretary the of responsibilities statutory the change prospectively to authority the Legislature may maintain, rescind or modify in its discretion. Indeed, the Legislature’s under the current incarnation , 223 Ariz. 555, 561, ¶ 15 (App. 2009) (“A county (“A 2009) (App. 15 ¶ 561, 555, Ariz. 223 Payne, in greater depth depth greater in who purport to competently administer elections in Maricopa County Maricopa in elections administer competently to purport who Boa the expect might One fatuous. simply is statement [ tenants core the of 7 that the request is unreasonable is on the subpoenaed party.” lawful purpose of the Committee in the discharge of its duties. And the burden of showing any to irrelevant or incompetent plainly not are subpoena the by sought documents the whether to as inquire only may Court ‘this Subpoena, the of scope proper the determining “In subpoenas. legislative of realm the into imported be cannot disputes discovery civil secretary of state omitted)); citations (internal statutes.’” to delegated implication, necessary by or expressly, powers the in role ordained constitutionally any enjoy officials
The nature of the relationship between the Legislature and the County is discussed is County the and Legislature the between relationship the of nature The , the County argues that compliance with the Subpoenas would “threaten one one “threaten would Subpoenas the with compliance that argues County the Third, As noted above, considerations of breadth and burden that prevail in the context of context the in prevail that burden and breadth of considerations above, noted As fficials only underscores that an investigation into their exercise of those duties is duties those of exercise their into investigation an that underscores only fficials 2.
impossible to tie any given ballot to the voter who cast it, or to otherwise otherwise to or it, cast who voter the to ballot given any tie to impossible
infra any . . .
Breadth and Scope of the Subpoenas shall be as prescribed by law. ] of our republic, the right to a secret ballot.” Compl. ¶ 4. This This 4. ¶ Compl. ballot.” secret a to right the republic, our of sic] documents or informat ion or documents Section I.D. .
of Title 16 embody delegations
can delegate Ariz. Const. art. V, § 9 § V, art.Const. Ariz.
11
and rescind requested by the Subpoenas Subpoenas the by requested ”). The functions and duties they possess
rd of Supervisors of rd conduct
’
is is to posit a legal impossibility. s by the Legislature [it] by the state constitution or or constitution state the by [it] Bean LLC ‘ authority is limited to those to limited is authority The powers and duties of duties and powers (“The
of elections. elections. of — , , 291 F. Supp. 3d at to know that it is, it that know to — as the officials the as
the electoral electoral the itself See
State v. State , which /or 7
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
result.” end predictable no be need there inquiry legislative valid a be To enterprises. nonproductive into and alleys’ ‘blind some a direct nexus to the subject matter of the instant in Subpoenas command the production of only documents, materials and information that bear 44 (internal citations and quotations omitted). While their requests are comprehensive, both nature of the investigative functio investigative the of nature very “[t]he information, or data actionable yield not may ultimately materials produced and efficiency of voting and tabulation procedures in Arizona elections. While some of the the the legality of the Subpoenas (and they are not), m
not devices in connection with connection in devices voting its of certifications state equipment. and federal previous nullifies somehow Subpoenas the for basis statutory no legal contrivances or the fruits of the County’s own obstinacy. For example, there is simply accommodate the County’s preferences. preferences. County’s the accommodate to requests Subpoenas’ the modifying unilaterally for basis statutory or constitutional any lacks accordingly Court The omitted). citations (internal 44 at 3d Supp. F. 291 LLC, Bean the general subject matter of the investigation” into the administration of Arizona elections. to relevant information produce will seek[] [Subpoenas] the materials of category the that responsibility for the consequences of its own itsown of consequences the for responsibility with the Subpoenas by the December 18 return date. It cannot now deflect to the Legislature partin least complyingat pressures by time alleviatedCounty own theits had easier much been have would task that exigency, this accommodate to willing is Legislature the While — engage in aline Further, even if the putative inconvenie putative the if even Further, In sum, the County cannot credibly contend that “there is no reasonable possibility possibility reasonable no is “there that contend credibly cannot County the sum, In See Compl. ¶ 113. The County also argues that it needs access to its voting its to access needs it that argues also County The 113. ¶ Compl.
- by- line review of the Committee’s requests” in the subpoena) the in requests” Committee’s the of review line municipal onys pcltv spoiin ht opine ih the with compliance that supposition speculative County’s n— elections like any research any like
See Eastland 12
id.
stonewalling
nces posed to the County were germane to germane were County the to posed nces scheduled for scheduled (“[T]his Court will not will Court (“[T]his ost , 421 U.S. at509. U.S. , 421 vestigation—
of the ostensible “burdens” are either
— is that it takes the searchers up up searchers the takes it that is . March 2021. 2021. March
, the accuracy, , efficacy i.e. the accuracy,
— and indeed, may may indeed, and See
id. . ¶ 146. ¶
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
obstruction of the Subpoenas is untenable. governing safeguards otay aiet a udmna msnesadn o Aioas constitutional Arizona’s of elected The misunderstanding it. within station County’s the fundamental and infrastructure a manifests contrary non of privilege unless it is restrained by the government provisions of civil the Constitution.” of scope the within subject any with deal may and state, the of power legislative the of whole the with vested “is It Arizona. of State the in power sovereign the of government branch another to granted or prohibited expressly not power all has Legislature (1947); 224 221, as the legislature deems wise deems legislature the as incorporated municipalities, which is to say, they are “ 65, 69 (1938); may grant or take away from them such powers as it may see fit.” 2001) (App. officers shall be as prescribed by law ae en xrsl o b ncsay mlcto, eeae t te b te state the by them to delegated implication, necessary legislature by or expressly been have as powers such only have state the of counties various the of supervisors of boards (“The First, and most fundamentally, none of these enactmen these of none fundamentally, most and First, regulatory and statutory various on reliance County’s the reasons, two least at For D. By
.”); otat cute ocp te ae osiuinl ln a non as plane constitutional same the occupy counties contrast, ”). . “[T]he power of the Legislature over [them] is practically unlimited” and “it and unlimited” practically is [them] over Legislature the of power “[T]he . 1. Ballots Cannot Excuse the County’s Disregard of the Subpoenas and Information Voter of Confidentiality the for Protections Statutory Ariz. Const. art. XII, § see also
- see also see icoue eaie o h Lgsaue Te onys ruet o the to argument County’s The Legislature. the to relative disclosure
h Lgsaue anan Peay oto Oe te County’s the Over Control Plenary Maintains Legislature The Statutory Functions and Duties
Associated Dairy Products Co. v. Page, 68 Ariz. ces o oe ifrain n blos o utf is continued its justify to ballots and information voter to access Adams v. Bolin v. Adams .” .” , 199 Ariz. 509, 515, ¶ 19 ¶ 515, 509, Ariz. 199 County , Pima v. Tucson of City .”). 4 (“The duties, powers, and qualifications of
, 74 Ariz. 269, 283 (1952) (recognizing (1952) 283 269, Ariz. 74 ,
13
no more than political entities created
Earhart v. Frohmiller ts vests in the County some some County the in vests ts
Legislature is the locus of locus the is Legislature
Udall v. Severn , 52 Ariz. 393, 395 – 96
, 65 Ariz. that “the “the that [county] - charter (1949) (1949)
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
political subunits, such as Maricopa County. ultim r prerogatives or cannotinvokeagainsthence theLegislatureCounty powers The congressional subpoena). support for the notion that they were intended to serve as a privilege against disclosure against privilege a as serve to intended were they that notion the for support access on restrictions as operate availability of voted ballots the to pertaining statutes point, the to More investigation. committee a of course the in the the First privilege in response to legislative subpoena); t 9 idctn ta piae at my n oe icmtne asr attorney assert circumstances some in may party private that (indicating 69 at revocable own Legislature’s the from derives exercises it duty or function every Legislature; the against assertable immunities or privileges rights, independent no possesses County the enti ty, legislative subpoena is to invert this schema of sovereignty. Unlike a private individual or 8 Procedures Manual provisions cannot excuse its non Elections and statutes cited the Legislature, the of position superordinate the to relative xrsl pris ces y n “uhrzd oenet fiil n h soe f the of scope the in official’s duties,” A.R.S. § 16 official government “authorized any by access permits expressly event. As an initial matter, the statute governing confidential voter identifying information whole. a as Legislature the by them on conferred expressly authority an to pursuant acted they Farnsworth, Chairman
ately to the Legislature itself. In short, the Subpoenas encapsulate an act of the Legislature that bind subsidiary subsidiary bind that Legislature the of act an encapsulate Subpoenas the short, In To suggest that the County’s statutory functions permit it to defy a lawfully issued lawfully a defy to it permit functions statutory County’s the that suggest To Notwithst It bears emphasis that although the Subpoenas were issued by President Fann and and Fann President by issued were Subpoenas the although that emphasis bears It
Amendment rights of subpoenaed individuals can cabin the permissible scope of a 2. delegation s
— anding the County’s confusion concerning the status of its statutory duties to include those relating to the the to relating those include to
The Confidentiality Statutes Do Not Permit Defiance of a Legislative a of Defiance Permit Not Do Statutes Confidentiality The Subpoena — to a subordinate political subdivision. subdivision. political subordinate a to
See - most notably A.R.S. § 16 168(F), a proviso that plainly encompasses legislators acting
A.R.S. § 41 . public. general the by
- 14 8 1151.
Barenblatt
- compliance with the Subpoenas in any conduct
- 624 (relating to securing ballots) , 360 U.S. at 109 (recognizing that There is no textual or extrinsic or textual no is There
f elections— of
Contrast Buell that belong belong that , 96 Ariz. Ariz. 96 , - client —
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
statutes, it would not be a privilege of the County against the Legislature. discus as authority, investigatory broad such granting in intended the privilege to stand as legislature, in a bulwark against [Medicaid] fraud investigations”). the agency that Medicaid infer cannot state “[w]e the from records medical connection with patient’s a pending in a subpoena to entitled See an inflicts it entitled, is committee or house issuing the which to 9 them process compulsory by demanded information relevant to the Judiciary Committee’s inquiry into to the relevant accuracy, the Committee’s information Judiciary constructed these confidentiality safeguar that body elected same the of officers to entrusted be cannot materials such but ballots, voted and information identifying voter access may officials county why reason coherent interchangeable. nert o Aioas oig ytm. systems. voting Arizona’s of integrity vdne that evidence hl fdrl n sae ttts ae dcto rcrs cnieta, te ae not are they “confidential,” records necessarily immune from disclosure through compulsory process). education make statutes state and federal while euse mtras rm eea pbi acs d nt nedr piiee f non of County privilege the a engender that not disclosure do access public the general of from some materials insulate requested that provisions regulatory and statutory The omitted). citations II. any cognizable justification forits continuing andcontumacious lacks County the enforceable,and and valid are Subpoenas the that follows It Legislature.
State v. Zeitner, 246 Ariz. 161, 167, ¶ 22 (2019) (concluding that Attorney General was e terms “[t]he critical; is distinction The . Indeed, even an established pri established an even Indeed, testimony or documents withholds unlawfully recipient subpoena a here, as When, Legislature Common sense buttresses this In sum, the Subpoenas demand the production of, or access to, documentary documentary to, access or of, production the demand Subpoenas the sum, In h Cut’ Ogig irgr o te upea Irprby nue the Injures Irreparably Subpoenas the of Disregard Ongoing County’s The sed above, even if some kind of “privilege” could be extruded from the relevant the from extruded be could “privilege” of kind some if even above, sed — ” t h vr least very the at Catrone
v. Miles
— vestigation, explaining that even if the records were privileged n neir oiia subdivision political inferior an issuing from the same soverign body that promulgated promulgated that body soverign same the from issuing , 215 Ariz. 446, 454, ¶ 21 — evidentiary axiom are a raoal psiiiy o producing of possibility” “reasonable a carries vilege is not is vilege
See ds in the first place. 15
en LLC Bean
‘ privileged always a bar to compelled disclosure. compelled to bar a always
. The County cannot articulate any , 291 F. Supp. 3d at 44 (internal (internal 44 at 3d Supp. F. 291 ,
’ ’ (App. (App. 2007) (concluding that
and
— defiance of them. “informational injury” on injury” “informational 9 a asr aant the against assert can
‘ confidential
reliability reliability and ’ ’ r not are And -
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
Reed unlawful the remediate officials. to county by inquiry as legislative legitimate a well of obstruction as integrity, and security election of imperatives behalf, its on process has body unitary compulsory invoke to authority the Farnsworth a Chairman and Fann President to delegated as Legislature the because And functions”). constitutional its out the Congress has constitutionally grounded entitlement to obtain information . . . in carrying is information . . . of denial “the that subpoena II McGahn body. legislative the Fontes, process”); election the of integrity the preserving in interest suffered injunctive relief may be appropriate when damages “ P’ship Ltd. Apartments Mar Del Rancho relief. injunctive intervening of absence the in irreparable member to act on its behalf. as House the them. Fifty III. had.” be may legislation where area an “in information and data obtain to prerogative constitutional Legislature’s intrans of means by cannot, County The pre and drafting are already members and 3,
- , 586 F.3d 671, 679 (9th Cir. 2009) Cir. (9th 679 671, F.3d 586 , Fifth Legislature will convene on January 11, 2021, 11, January on convene will Legislature Fifth See Relief Injunctive remedies are necessary to vindicate the equitable and public policy policy public and equitable the vindicate to necessary are remedies Injunctive eas ti ijr i nt ersal b mntr dmgs i ncsaiy is necessarily it damages, monetary by redressable not is injury this Because osdrtos f qiy n Pbi Plc Mltt in Militate Policy Public and Equity of Considerations ”). Impending external events underscore the ir the underscore events external Impending ”). -- U. S. v. Am. Tel. & Tel. Co. , 968 F.3d 755, 766 (D.C. Cir. 2020) (holding in the context of a congressional congressional a of context the in (holding 2020) Cir. (D.C. 766 755, F.3d 968 , Ariz.
a whole has standing to assert its investigatory power, and can designate a designate can and power, investigatory its assert to standing has whole a --,
7 P3 33 309 303, P.3d 475 See Comm. on the Judiciary of the U.S. House of Representatives v. Representatives of House U.S. the of Judiciary the on Comm. See see Eastland A.R.S. § 41- § A.R.S. ”).
, 421 U.S. at 506. at506. U.S. , 421 , 551 F.2d 384, 391 (D.C. Cir. 1976) 1151, the injury redounds to, and is assertable by, assertable is and to, redounds injury the 1151,
, 228 Ariz. 61, 65, ¶ 11 (App. 2011) (App. 11 ¶ 65, 61, Ariz. 228 , ¶ 27 ¶ ,
(recognizing the “indisputably . . . compelling compelling . . . “indisputably the (recognizing igence and dilatoriness, abridge or defeat the the defeat or abridge dilatoriness, and igence 16 - filing legislation proposing electoral reforms. reforms. electoral proposing legislation filing
a concrete injury” and that “each House of House “each that and injury” concrete a ( 2020) are inadequate to address the full harm
hlig ht “ that (holding remediability of the harm. The The harm. the of remediability see See Arizona Pub. Integrity All. v. All. Integrity Pub. Arizona Ariz. Const. art. IV, pt. 2, § 2, pt. IV, art. Const. Ariz.
IB P IB
rop. Holdings, LLC v. LLC Holdings, rop. ao o Injunctive of Favor See generally See public
(“It is clear that
(noting that that (noting policy
Doe v. Doe and
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
by information voter confidential otherwise officials, governmental to access authorizes already Arizona Subpoenas the histrionics, rhetorical ballot secret the of sanctity the nor information Complaint’s identifying sensitive neither compromise the to Contrary considerations. the information responsive to either or both of the Subpoenas. the of both or either to responsive information Farnsworth Chairman or Fann order compelling the
individual voter individual wholly is it and it, cast who voter the of information identifying personally any contains ballot voted No ballot. the of false contentions to the contrary, the Subpoenas do not, and could not, could and not, do Subpoenas the contrary, the to contentions false demonstrably County’s the despite And information. such misuse to bureaucrats county requiring confidential treatment of certain voter information trust public the of stewards as legislators, elected that insinuating
public Notably, the County is at a loss to advance any countervailing equitable or policy or equitable countervailing any advance to loss a at is County the Notably, RESPECTFULLY SUBMITTED preliminary a enter should Court the reasons, foregoing the For interest are served by enjoining enjoining by served are interest
from any of the documents or material or documents the of any from
County see to immediately produce or make available in full to available or make produce to immediately ... 16 § A.R.S. impossible to ascertain the electoral choices of any given given any of choices electoral the ascertain to impossible (or (or their C
By: ONCLUSION
designees) all documents, records, materials, and materials, records, documents, all designees) this this Committee Chairman Eddie Farnswort Karen Fann and Senate Judiciary Counterclaim Attorneys for [the County Recorder’s] County [the -
6() ad hr i n pasbe ai for basis plausible no is there and 168(F), 17 Phoenix, Arizona 649 North Fourth Avenue, First Floor Thomas Basile Kory Langhofer STATECRAFT PLLC STATECRAFT /s/Thomas Basile /s/Thomas
29
th day th of Decemb
s requested by the Subpoenas. Defendants/
Arizona Senate President , are somehow more likely than
85003
20. er, 20 who adopted the st adoptedthe who
unlawful action
Plaintiffs
injunction or other other or injunction breach the secrecy the breach
in in President
”). h
atutes
.
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
Thomas Basile By: Attorneys for the Democratic Members of the Senate Judiciary Committee [email protected] [email protected] Tempe, Arizona 85283 401 West Baseline Road, Suite 205 Barton Mendez Soto PLLC Jacqueline Soto Mendez James Barton Attorneys for the Plaintiffs/Defendants in Counterclaim [email protected] Phoenix, Arizona 85003 225 West Madison Street Maricopa County Attorney’s Office Thomas P. Liddy, Deputy County Attorney [email protected] Phoenix, Arizona 85016 2375 Hinshaw & Culbertson LLP Steven W. Tully a Notice ofElectronic Filing to the following registrants: TurboCourt oftransmittal and filingfor System TurboCourt the using Office Clerk’s the to document
_/s/Thomas Basile East Camelback Road, Suite 750 I hereby certify that on
CERTIFICATE OF SERVICE December 29
, 2020, I
electronically transmitted the attached
Exhibit A SUPERIOR COURT OF ARIZONA
IN MARICOPA COUNTY
Case No. CV2020-016904 KAREN FANN, et al.,
Petitioners, DECISION ORDER
v. Honorable Randall H. Warner MARICOPA COUNTY BOARD OF SUPERVISORS, et al.,
Respondents.
This is a special action in the nature of mandamus. Petitioners, in their capacity as President of the Senate and Chair of the Senate Judiciary Committee, issued legislative subpoenas to Respondents. When Respondents failed to comply within the timeframe set forth in the subpoenas, Petitioners filed this special action. The Court accelerated briefing and argument on the question of whether it has subject matter jurisdiction.
A.R.S. § 41-1151 authorizes the presiding officer or a committee chair of either house of the Arizona Legislature to issue subpoenas. A.R.S. §§ 41-1153 and -1154 prescribe how to enforce a legislative subpoena. Plaintiffs have not followed the procedures set forth in those statutes, instead choosing to file suit under Arizona’s mandamus statute, A.R.S. § 12-2021, and the Arizona Rules of Procedure for Special Actions.
Mandamus is not a proper remedy for enforcement of a legislative subpoena. That remedy exists to compel a public body or official to perform “an act which the law specially imposes as a duty resulting from an office.” A.R.S. § 12-2021; accord Ariz. R. Spec. Act. 3. Although Respondents are public officials, they are in this context the subjects of a subpoena and their duty to comply arises from the subpoena, not from their offices. There is no basis in Arizona statute for treating the subject of a subpoena differently because they are a public official, and no basis for using mandamus in lieu of the procedures for enforcing subpoenas that apply to all persons served with a subpoena.
Petitioners argue, based on federal case law, that they have an implicit power under the Arizona Constitution to seek judicial enforcement of a legislative subpoena. As a general proposition, the Arizona Constitution is much more detailed than the United States Constitution, and the Court is reluctant to find powers in it that are not expressed. But whatever implied power the Constitution might confer on the Legislature, neither the federal cases cited, nor any provision of the Arizona Constitution cited, supports a grant of such implied power to individual legislators or legislative leadership.
Petitioners argue that they can seek judicial enforcement of a subpoena under A.R.S. § 12-2212. That statute provides that, when a “public officer” is authorized to issue a subpoena, they may apply to the Superior Court to enforce the subpoena, and “the court shall thereupon proceed as though such failure had occurred in an action pending before it.” A.R.S. § 12-2212(B). This is a plausible argument, but Petitioners made it for the first time in their memorandum on the issue or jurisdiction. The Complaint here was brought under the mandamus statute and the special action rules, not A.R.S. § 12-2212, and the latter is not even referenced in the Complaint.
Respondents have not had an opportunity to respond to this new theory. However, the Court will permit Petitioners to amend the Complaint to add a claim under A.R.S. § 12-2212, and the viability of that remedy can be addressed if a motion to dismiss is filed.
IT IS ORDERED dismissing Plaintiff’s claim for special action.
IT IS FURTHER ORDERED granting Plaintiff leave to amend to add a claim under A.R.S. § 12-2212.
IT IS FURTHER ORDERED that the remainder of this matter will be dismissed without prejudice on February 1, 2021 unless an amended complaint is filed.
As to the special action claim, the court finds no just reason for delay and enters dismissal order as a partial final judgment under Rule 54(b).
DATE: December 24, 2020.
______Honorable Randall H. Warner Superior Court Judge Exhibit 4
Exhibit 4
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
n MRI QEAA i ter official LUPE their in QUEZADA, MARTIN LEACH, and VINCECONTRERAS,ANDREA C BORRELLI, Judiciary Arizona the Senate of official Chairman his Vice as in capacity GRAY, Judiciary RICK Senate Committee; Arizona the of Chairman PETERSEN Senate; Arizona the as of capacity President official her in FANN, KAREN v. County Board of Supervisors their Maricopa the of Members as capacitiesofficial in GALLARDO, STEVE and GATES, CHUCRI, STEVE SELLERS, JACK and the Supervisors; of of Board Chairman County as Maricopa capacity official his in MARICOPA COUNTY; CLINT aaiis s h Mmes f h Arizona the of Senate Judiciary Committee Members the as capacities
Counterclaim Committee Chairman Kory Langhofer, Ariz. Bar No. 024722 Thomas 649 North Fourth Avenue, First Floor Attorneys for Karen Fann and Senate Judiciary [email protected] Phoenix, Arizona 85003 IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA STATE THE FOR COURT SUPERIOR IN THE [email protected] , in his official capacity as as capacity official his in , Basile, Ariz. Bar. No. 031150 (602) 382 (602)
Arizona Senate President Defendants/P- laintiffs IN AND FOR THE COUNTY MARICOPAOF COUNTY THE FOR IN AND P laintiffs ommittee; SONNY SONNY ommittee; - Warren Petersen 4078
DALESSANDRO, , , , , , ,
HICKMAN,
WARREN
in
BILL
- PLAINTIFFS MARICOPA COUNTY’S MOTION PRELIMINARY INJUNCTION PRELIMINARY TO DISMISS AND REPLY IN SUPPORT OF SUPPORT COMBINED RESPONSE TO
(Assigned to the Hon. Timothy Timothy Hon. the to (Assigned No.
CV2020 Thomason) IN - COUNTERCLAIM’S *** ElectronicallyFiled Clerk oftheSuperiorCourt MOTION FOR
1/11/2021 4:49:34PM Filing ID12417641 - T. Hays,Deputy 016840
1 Defendants. 2 ______3 KAREN FANN, in her official capacity as 4 President of the Arizona Senate; WARREN 5 PETERSEN, in his official capacity as Chairman of the Arizona Senate Judiciary 6 Committee, 7 Plaintiffs-in- Counterclaim, 8 v. 9 MARICOPA COUNTY BOARD OF 10 SUPERVISORS, the governing body of 11 Maricopa County, Arizona; JACK SELLERS, in his official capacity as a member of the 12 Maricopa County Board of Supervisors; 13 STEVE CHUCRI, in his official capacity as a member of the Maricopa County Board of 14 Supervisors; BILL GATES, in his official capacity as a member of the Maricopa County 15 Board of Supervisors; CLINT HICKMAN, in 16 his official capacity as a member of the Maricopa County Board of Supervisors; and 17 STEVE GALLARDO, in his official capacity 18 as a member of the Maricopa County Board of Supervisors, 19 Defendants-in- 20 Counterclaim. 21 22 23 24 25 26 27 28
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
Petersen parties County Maricopa the requiring order an seeks whichInjunction, Preliminary a for Motion Petersen R to either or both of the the of both or either to Democratic allies on the Senate Judiciary Committee Judiciary Senate the on allies Democratic reasoning. sound for aproxy isnot indignation righteous facts and articulable for substitutes not are remonstrances thunderous But 3. at Response County’s 2 1 county to accessible already materials b and documents same the for representatives ) ol rqet b elected by requests could “County”) the (hereafter, Supervisors of Board County Maricopa the of imaginations febrile the in Only omitted). citations (internal (2020) 2031 uiir t te eiltv fnto, ad hs []e lgsaie pwr o obtain to power [legislative] “[t]he ‘indispensable.’” and ‘broad’ is information thus and function,” legislative the to auxiliary
undertake or refrain from any action. to Chairman the than other Committee Judiciary the of members any mandate not, could even if the County were entitled to the relief it seeks, the other member of the Legislature executed, or and was Fann required Presidentto execute, by the issued Subpoen were Subpoenas the 1151, 41 § A.R.S. to Pursuant unclear. remains Senate action main County’s the in the defendants named of members Democratic the that parties not are Committee Judiciary noting bears it Injunction, Preliminary for defendant in the main action and as a plaintiff in the Counterclaim. for substituted S
racas e osdrd kn o h rgcdl ahm f eouinr Fac. France. revolutionary of mayhem regicidal the to akin considered be ureaucrats ubpoenas or ubpoenas esponse to the Maricopa County parties’ Motion to Dismiss and Reply in Support of Plaintiffs tipd of Stripped The “power of inquiry — of “power The Although they filed a response in opposition to the CounterclaimoppositiontheresponseinPlaintiffs’to Althoughfileda they Motion automatically been has Petsersen Senator 25(d), P. Civ. R. Ariz. to Pursuant to immediately produce or make available in full to to full in available make or produce immediately to , Chairman of the Senate Judiciary Committee,
(or (or their finding a jurisdictional inability to enforce them. As the County itself has has itself County the As them. enforce to inability jurisdictional a finding - omr eae uiir Cmite himn di Frsot a a as Farnsworth Eddie Chairman Committee Judiciary Senate former in designees) all documents, records, materials, and informrecords,materials,and documents,all designees)
- their rhetorical histrionics, the submissions of the County and their their and County the of submissions the histrionics, rhetorical their Counterclaim Karen Fann, President of the Arizona Senate, and s issued on December 15, 2020 15, December on ubpoenas issued
with process to enforce it enforce to process with to I NTRODUCTION
the Counterclaim proceedings at all. Why they they Why all. at proceedings Counterclaim the 1 Trump v.Trump MazarsLLP USA,
2 1
resulting resulting judgment would not, and proffer no basis for quashing the quashing for basis no proffer respectfully respectfully — - then is an essential and appropriate appropriate and essential an is President Fann or Chairman or Fann President Chairman Farnsworth. No Farnsworth. Chairman
(the “ (the
submit this combined Subpoenas , 140 S. Ct. 2019, Ct. S. 140 , ation responsiveation ”). as. Thus, Warren their their See are -
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
3 issued in furtherance of legislative efforts to explore electoral reforms, predicate for the Counterclaim. 12 §§ A.R.S. and course has subject matter jurisdiction to adjudicate the lawfulness of legislati already conceded by initiating these proceedings in the first instance, the Superior Court of the United States Congress during the certification process, the County’s unlawful unlawful County’s the process, certification the during Congress obstinacy succeeded in extinguishing that possibility. States United the of any given candidate race. the of outcome the transcends which purpose, legislative lawful enforcement their to attests itself their Subpoenas in steadfast That remain Petersen Chairman authority? and regulatory Fann qualified President more a to responsibilities consider vital Legislature the these should assigning or counties, populous most Arizona’s in elections of in future elections? Is the Maricopa County Board of Supervisors a competent administrator the outcome of any race)? Could affected legislative reforms decrease the risk irregularities of mis such whether of (regardless security devices or voting ballots, in unlawful vulnerabilities of casting the errors, tabulation there Were Subpoenas. nor anyone else could “overturn” the election, even if they wanted to do so. inaugurated President of the United States on January 20. Neither the Arizona Legislature ruet ht h Subpoena the that argument 25- tts oges a criid h Eetrl olg returns, College Electoral the certified has Congress States any person to initiate any variety of an election contest has long since elapsed. The United c tabulated, been have election 2020 of results The reality. empirical and sense common of glare the under quickly dissipates notion farcical This election. presidential 2020 the 1, at Dismiss
27, are fatal to its position, the County labors to construct and then demolish a strawman Perhaps recognizing that President Fann’s While informationWhileyie These circumstances, however, do not extinguish the critical questions animatin anvassed and certified by the Governor and Secretary of State; the deadline for deadline the State; of Secretary and Governor the by certified and anvassed -
2212, - 81 and 1801
ae culy selh ntuet o oetr, Mto to Motion “overturn,” to instrument stealth a actually are s lded by the Subpoenas may or may not have have not may or may Subpoenas the by lded
- 81 ah upis n needn ad sufficient and independent an supplies each 1831
2
sworn sworn averments that the Subpoenas were
3
n Jsp Bdn wi Biden Joseph and
see takes takes or anomalies Counterclaim ¶¶ proved ve subpoenas,
useful to useful ll be be ll g the
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
could possibly as jurisdiction.” The Court should not indulge this misnomer. “Subject misnomer. this indulge not should Court The jurisdiction.” matter “subject Court’s the of one as issue the cast the to unsuccessfully outcome, struggles this County avert To justiciable. not are subpoenas legislative of enforceability I. a were Recorder the “necessary party,” the Courtcan if even and Supervisors, of Board the of control these legal the underlying within are Recorder questions County the the by maintained documents dispute, Finally, moot. in not are now proceedings ones the to identical substantially by the sovereign Legislature. County the why or how of question operative the voter registration information and ballot materials are not publicly accessible simply evades jurisdiction of . . . cases and proceedings in which exclusive jurisdiction is not vested by by vested not is jurisdiction exclusive original which in proceedings have and cases . . shall . of jurisdiction court superior “[t]he that directs Constitution Arizona the Indeed, claim. civil of species every nearly adjudicate and hear to authority plenary with vested is Arizona of Court Superior thejurisdictiontribunal, general a As (1990). 430 427, Ariz. court the Fifty inaugurated newly the Because non of out arising claims assert to standing legal have Petersen behalf, its on Subpoenas the issue to Counterclaim, all of which fall flat. As the officers expressly authorized by the Legislature could sustain that untenable position.
Finally, the County lobs a scattershot of misc of scattershot a lobs County the Finally, s icse blw te ony a wie ay ruet ht h vldt and validity the that argument any waived has County the below, discussed As A. 12 §§ A.R.S. to The Court Has Jurisdiction to Hear and ex County’s the Further, ’
s fundamental power to grant relief in a pending case.” case.” pending a in relief grant to power fundamental s h Spro Cut a Sbet atr uidcin vr Claims Over Jurisdiction Matter Subject Relating to Legislative Subpoenas Has Court Superior The sert a
privilege - 2212, 12 T he County is at a loss to produce any Arizona authority that ertions to establish the undisputed proposition that certain that proposition undisputed the establish to ertions of non - simply join him. 1801 and 12 - see Fifth Legislature will imminently reissue subpoenas reissue imminently will Legislature Fifth
- disclosure in response to compulsory process issued
A.R.S. 3
-
1831 § 41- § Adjudicate the Counterclaim Pursuant
—
a subordinate political subdivision political subordinate a ellaneous additional defenses to the to defenses additional ellaneous 1151,
President Fann and Chairman and Fann President
- opine ih them. with compliance , 163 163 State, v. Pritchard
matter ju risdiction —
is is
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
wi o hba cru . . n ihr vn tee ol b jdca rslto o the of resolution judicial be would there event underlying matter” either In . . . corpus habeas of writ a 4 sought the eliciting at primarily aimed is relief civil punitive, purposes different serve remedies two “the mechanisms is entirely sensible. As one court has remarked in a virtually identical contex unambiguously found.”). divestitu a and jurisdiction, of retention of favor in exists presumption a jurisdiction, general of court a is court superior omitted)); citation (internal court” other such jurisdiction over such cases, unless the statute declare such from away taken not is courts superior the in reside to declared so jurisdiction (“The (1964) 232 229, Ariz. 96 same subject matter. concurrentjurisdictionofthe SuperiorCourtover the divests Article 4 Chapter7, Title41, house of the Legislature may e While court. other any in subpoenas legislative of enforcement the over jurisdiction “special as well as court,” another in law disputed issue would in all likelihood end up before this Court, “the that and crisis” constitutional a precipitating of risk grave a present “would officials recalcitrant “prosecuting” and “imprisoning” that (adding 2008) (D.D.C. 92 53, 2d Supp. information. (11). 14(1), § art.VI, Const. Ariz. for.” writ of habeas corpus, a on Court Superior the reached which subpoena, legislative a of validity the adjudicating procured civil remedies as an alternative to contempt proceedings. no occasion to consider whether the legislative offi P M exclusive lodges law of source other or statute provision, constitutional No recisely recisely itiig bfrain ewe cnep poedns n cvl enforcement civil and proceedings contempt between bifurcation a aintaining See Comm. on the Judiciary, U.S. House of Representatives v. Miers v. Representatives of House U.S. Judiciary, the on Comm. See this this 4
). See
see Buell v. Superior Court
cnro a ataie i te ny pub only the in actualized was scenario
State ex rel. Ronan v. Superior Court In & For Maricopa County,
courts by a statute declaring that some other court shall have shall court other some that declaring statute a by courts
employ re of jurisdiction cannot be inferred but must be clearly and and clearly be must but inferred be cannot jurisdiction of re
contempt remedies,
cases and proceedings not otherwise provided otherwise not proceedings and cases ; ” while contempt citations are fundamentally are citations contempt while ” 4
, 163 Ariz. at 430 (“Because the the (“Because 430 at Ariz. 163 Pritchard, , 96 Ariz. 62 (1964). The cers who issued the subpoena could have s and vests jurisdiction exclusively in
see A.R.S. § 41- just just by a different vehicle
lished Arizona case case Arizona lished - fe dcmns or documents after 1153, nothing in Buell
court had , 558 F. F. 558 , ach — t,
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
ht h pris r rvre . . hs or fis o se respect”). material any in analysis judgment] [declaratory to fails Court This . . . reversed are parties the that is one this and case that between difference “[t]he that reasoning and recipient subpoena a subpoena, noting that a prior case had considered a declaratory judgment action brought by claims committee’s House adjudicate to jurisdiction had court that (finding the Judiciary, U.S. House of Representatives v. Miers McGahn v. Representatives the legislative subpoena should be be should subpoena legislative the subpoena should be Hyde & Hays PLC (citing (App. 1999) competence. institutional generally Bank of Am. Nat. Tr. & Sav. Ass’n v. Maricopa County judiciary’s the of realm the beyond lie questions such assess the enforceability of the Subpoenas discredits the Coun them.” quash to and unlawful are Subpoenas the that declaration a for Court the “asks County the relief declaratory for Complaint own its In contempt. of finding legislative a to prior discovered conviction that the Court may not opine on the validity of a legislative subpoena matter of legislative subpoenas. governing statute, it wouldnot establish failed
to ihr h Cut a ajdct te aiiy f lgsaie upea ro to prior subpoena legislative a of validity the adjudicate can Court the Either h Cut cno hv i bt wy. A asi ta asrs ht legislative a that asserts that lawsuit “A ways. both it have cannot County The recently its foreclose action this in Court this to representations own County’s The B. Thus, even assuming even Thus, , 76 Ariz. 91, 95 (1953) 95 91, Ariz. 76 Weissbach , v. Fox See
state a claim that aligns w aligns that claim a state
Compl. ¶ 9. This critical admission that the Court can Court the that admission critical This 9. ¶ Compl. (adverse (adverse party’s admission in a prior proceeding could carry evidentiary value Review is Improper Pre- That Argument Any Waived Has County The , 236 Ariz. 485, 488, ¶¶ 12 ¶¶ 488, 485, Ariz. , 236
quashed , 415 F. Supp. 3d 148, 182 (D.D.C. 2019); 2019); (D.D.C. 182 148, 3d Supp. F. 415 , arguendo as unlawful is merely the flip side of a lawsuit that argues that
enforced ith the elements of A.R.S. § 12 § A.R.S. of elements the ith that President Fann and Chairman Farnsworth have have Farnsworth Chairman and Fann President that
an absence ofgeneral jurisdiction overthe subject 5
- ” .”
13 (App. 2014) om o te uiir, .. House U.S. Judiciary, the on Comm. ); KCI Rest. Mgmt. LLC v. Holm Wright Holm v. LLC Mgmt. Rest. KCI , 558 F. Supp. 2d 53, 85 (D.D.C. 2008)
wy ht at hud le the alter should fact that why e
ty’s ty’s newfound insistence that
(same). (same).
, 196 Ariz. 173, 176, ¶ 11 11 ¶ 176, 173, Ariz. , 196 — - 2212 or some other some or 2212 otmt Judicial Contempt see also Comm. on Comm. also see and in fact must fact in and to enforce its its enforce to See — of
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
12- Section 12 independent independent predicate for enforcement jurisdiction. carries some broader import, it only confirms that Section 12 to the senses and offered to prove the existence or nonexistence of a fact.” fact.” a of nonexistence or existence the prove to offered and senses the to objects) that tends to prove or disprove the existence of an alleged fact; anything presented tangi and documents, testimony, (including “something simply is “Evidence” statutes. controlling the in and dictionary the in refutation easy finds “evidence” take to officers 12 Section of invocation the to precedent condition existence of some some of existence Section 12 citing proceedings,” contempt such for forum a as act to court superior the allow bodies to enforce its orders, but added that “the statutory schemes governing several administrative power statutory any lacked Courts Administrative of Office the that held Court the There, or’ jrsito fr dcaain ocrig h Sbons lwuns bt that but lawfulness untenable. is Subpoenas’ proceedings same the in question same the present cannot officers legislative the concerning declaration a for jurisdiction Court’s that sweeping proposition from the narrow question presented in in presented question narrow the from proposition sweeping that extrude to managed court County the How 15. at MTD proceedings,” contempt of superior enforcement authorize also must subpoena the authorizing framework statutory “the contempt proceedings
11 t “ae vdne va h sbon poes Peiet an n Chairman See and Fann President process, subpoena Farnsworth are entitled the to “apply” to this Court for civil remedies to via enforce the Subpoenas. evidence” “take to 1151, force of the unambiguous text, the County, citing citing County, Ass’n Homeowners the text, unambiguous the of force 2212 w 2212
A. R.S. § 12 § R.S. h Cut’ adtoa cneto ta Tte 1 os o atoie legislative authorize not does 41 Title that contention additional County’s The C. As “ As
- - ere 2212 as an example. 245 Ariz. at 81, ¶ 14. Nowhere did the court state 2212 would be public officers” who are expressly “authorized by law,” namely, A.R.S. § 41- § A.R.S. namely, law,” by “authorized expressly are who officers” public The Counterclaim States required to cite to required - 2212. The interpretive inquiry is that simple. To evade the controlling the evade To simple. that is inquiry interpretive The 2212.
, 245 Ariz. 77 (App. 2018), insists that for Section 12 Section for that insists 2018), (App. 77 Ariz. 245 , other — or it cannot. To posit that the County can appropriately invoke the ttt atoiig ueir or cnep poedns s a is proceedings contempt Court Superior authorizing statute entirely a nother
nugatory statute authorizing Superior Court Superior authorizing statute
a a Valid Claim Under A.R.S. § 12
and pointless. 6
Indeed, Indeed, if - 22 T te otay if contrary, the To 2212.
.. hte v Hlo Casitas Hilton v. Whitmer R.L. - 2212 is itself a sufficient and a plaintiff relying on Section
Whitmer , jurisdiction - - 2212 to apply, to 2212 B 2212 LACK
is baffling. baffling. is Whitmer that that the ’ S L then then AW ble
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
nocaiiy f h Sbons ad o []i Cut a jrsito prun t the to pursuant jurisdiction Uniform Declaratory Judgments Act.” County Compl. ¶¶ 10 has Court “[t]his so and Subpoenas, the of enforceability officials subpoenas seeking testimony and documents relating to the dismissal of multiple of dismissal the to relating documents and testimony seeking subpoenas officials in affirmative. the answered twice have They remedies. civil pursue to action of right a assert can committees its or House The District of Columbia’s federal courts thus have confronted the question of whether the by statute, U.S. Senate’s right to initiate civil enforcement proceedings in the district courts is secured the Whereas conclusion. the reinforces committees its or Representatives of House States “[t]here itself, County the of words “liberally,” D not further relief is or could be claimed,” A.R.S. § 12 o and status, rights, declare to “power courts the to entrusts authority, to pursuant Counterclaim the over jurisdiction maintains nevertheless Court “evidence.” procedures. election Notably,even Title 41 itself denominates the materials of security and reliability accuracy, the to relating facts disprove or prove may that things are they domain; definitional this within squarely fall Subpoenas states a valid cause of action under A.R.S. § 12 Counterclaim the Hence, article”). this to pursuant produced evidence or “[t]estimony elrtr Jdmn At ARS § 12 § A.R.S. Act, Judgment Declaratory ICTIONARY In 2007, the House Judiciary Committee issued to two high two to issued Committee Judiciary House the 2007, In context the in issue this ofconsideration Courts’ Even if the County were correct that A.R.S. § 12 D.
see see Russell Piccoli P.L.C. v. O’Donnell
(11th (11th ed. 2019). The documents, materials and informatio Injunction Statutes Injunction and Judgment Declaratory the Under Jurisdiction Has Also Court The A.R.S. § 12 See 2 U.S.C. § 288d, no
... 41 § A.R.S.
- 1801, - 12 cnern cran muiis n oncin with connection in immunities certain (conferring 1152 et seq. See
such statutory prerogative attaches to House subpoenas.
is a present controversy” relating to the validity and and validity the to relating controversy” present a is
- 1831, Counterclaim ¶¶ 6, 43- 7
- , 237 Ariz. 43, 47, ¶ 12 (App. 2015). In the 2212. t seq. et - 1831—
- yielded by legislativeas yieldedby subpoenas 2212 is somehow inapplicable, the s el s t sauoy injunctive statutory its as well as of subpoenas issued by the United the by issued subpoenas of ther legal relations whether or or whether relations legal ther - 11. a directive that is interpreted
67. Arizona law broadly - ranking White House House White ranking n demanded by the
the Uniform Uniform the
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
or dcae ta te upea wr lwul ise, t a appropriate ly may it issued, lawfully were Subpoenas the that declares Court resolution. declaratory a for Court the to presented be may it arises a resultant controversy relating to the validity or enforceability of specific subpoenas, there here, as When, therein. requested information and materials documents, the to right has a right to issue subpoenas, issue to right a has chairmen, committee and officers presiding its through acting Legislature, The case. this 5 Justice the and comply to declinedofficials the After Attorneys.U.S. entitled to the relief demanded, and such relief or any part thereof requires the restraint of restraint the requires thereof part any or relief such and demanded, relief the to entitled t appears it “[w]hen injunction of writ (authorizing eeil oes o eie prpit ijntv rle. relief. injunctive appropriate devise to powers remedial see committee lacked a valid cause of action, issue, remanding and subpoena its enforce panel opinion, agreeing with the district court that the committee had Article III standing to that there was “no reason why reason “no was there that followed it subpoenas,” such of subject the is that information the to right corresponding a “there can be no question that Congress has a right . . . to issue and enforce subpoenas, and U.S. House of Representatives v. Miers relief. injunctive and declaratory seeking court district the in suit filed Committee Judiciary the jury, grand a to citations contempt House’s the bring to Representatives v. McGahn purpose.” that serves plainly Act Judgment Declaratory the then . . . subpoenas its enforce to lawsuit a file to it authorize to statute a reaffirmed this precept just a year ago, emphasizing that “[i]f Congress does somehow need the the v. McGahn for rehearing and scheduling oral arguments for February 2021, ors hog te Dcaaoy uget c]” Act].” Judgment [Declaratory the through courts A A en banc en 951 F.3d 510 (D.C. Cir. Feb. 28, 2020),but the see The analytical framework expounded in expounded framework analytical The divided 968 F.3d 755, 778 (D.C. Cir. - 19 , No.
court has since vacated that opinion as well, granting the committee’s pet committee’s the granting well, as opinion that vacated since has court - three
5331 (D.C. Cir.), Per Curiam Order of Oct. 15, 2020. judge panel of the D.C. Circuit reversed the district court’s order, order, court’s district the reversed Circuit D.C. the of panel judge , 415 F. Supp. 3d 148, 195 (D.D.C. 2019). (D.D.C. 195 148, 3d Supp. F. , 415
see
that right cannot be vindicated by recourse to the federal federal the to recourse by vindicated be cannot right that A.R.S. § 41- § A.R.S. the case to the panel to consider the cause of action action of cause the consider to panel the to case the , 558 F. p. Sup 2d 53 (D.D.C. 2008). Observing that Aug. 7,
see 8
973 F.3d 121 (D.C. Cir. Aug. 31, 2020)—
2020). On remand, the panel found that the 1151, which in turn engenders a subsidi a engenders turn in which 1151, Miers om o te uiir, .. os of House U.S. Judiciary, the on Comm. en ban hat the party applying for the writ is writ the for applying party the hat Id.
and
t 4 Te .. itit Court District D.C. The 84. at c McGahn
court subsequently vacated the See See Comm. on the Judiciary, the on Comm. See see Comm. on the Judiciary For the same reason, if the if reason, same the For
... 12- § A.R.S.
transposes easily onto onto easily transposes 5
Department refusedDepartment
811, (3) 1801(1),
nit its enlist ition ition ary but
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
hte rgt hv be o wl b afce b abtay r nesnbe cin f an of administrative officer oragent”). action unreasonable or arbitrary by affected be will or been have determine rights to whether remedy appropriate an is “injunction that (holding 1982) (App. 119 117, be enjoined from acts’ that are beyond his power.”); his beyond are that acts’ from enjoined be II. of action for the relief sought by the Counterclaim. 12- exclusively in some other tribunal. tribunal. other some in exclusively jurisdiction invests law of source no because subpoenas legislative of enforceability the might attempt to use it to overturn the election results.” tttr “lcin ots, ad 2 a eiltv sbon cno b vld nes t is it unless valid be cannot subpoena legislative a (2) and contest,” “election statutory Countyappears toargue that (1)the Subpoenas and the for counsel to information the the that “provide personalities, will TV Legislature of tweets the as such parties, third of claims hearsay the on relies County the proposition,subversive this for evidence actual any Lacking 5. at MTD presiden of election lawful People’s the “overturning of means simply are Subpoenas the which in narrative fictive fanciful, a concocts instead County the theories, 6 Fontes, under injunction an to entitled is applicant when cases other all “[i]n as well as applicant,” the to prejudicial act some of action or remedies arising under different statutes, such as Section 12 causes abridge or subsume not does it Counterclaim; the adjudicating for basis alternative fae to eaae n dsic rmda schemes. remedial distinct and separate two conflates
2212, 12- 2212, The Subpoenas Were Issued for the Valid Legislative Purposes of Investigating In sum, the Superior Court has subject matter jurisdic matter subject has Court Superior the sum, In lhuh t s ifcl t etat oeet rnils f a fo ti yr, the yarn, this from law of principles coherent extract to difficult is it Although legal its to uncongenial Counterclaim the of averments factual sworn the Finding Reforms Necessity the Assessing and Procedures Election Existing of Adequacy the In arg In -- Ariz. 1831, and 12 and 1831, uing that Section 12- Section that uing --, 475 P.3d 303, 307 (2020) (“[L]ike all public officials, the Recorder ‘may
- 1801
the principles of equity”); equity”); of principles the each 6
2212 does not admit of injunctive remedies, the County the remedies, injunctive of admit not does 2212 See
supplies
Ariz. Const. art. VI, § 14(1). Further, A.R.S. §§ A.R.S. Further, 14(1). § VI, art. Const. Ariz. 9
a sufficient jurisdictional premise and cause sufficientjurisdictionaland a premise
underlyinginvestigation actuallyarea Rivera v. City of Douglas of City v. Rivera
See cf. eto 12 Section
County Compl. ¶ 88, Exh. 8. tion over disputes concerning concerning disputes over tion Arizona Pub. Integrity All. v. All. Integrity Pub. Arizona
losing candidate so that he he that so candidate losing
- 22 s eey an merely is 2212 - 1801. tial electors.” electors.” tial , 132 Ariz. Ariz. 132 , of
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
and never could be an “election contest” that should be governed by A.R.S. § 16 § A.R.S. by governed be should that contest” “election an be could never and At the risk of stating the obvious: the Judiciary Committee’s investigation is not, never was, highest number of lawful votes, and should be certified by the Court decl the than other someone that grounds, enumerated statutorily more or one on alleges, elector qualified a which in proceeding judicial a denotes that art of term statutory a is contest” “election An confusion. definitional profound a on depends power.”). that of exercise the spurred which motives the of basis the on intervene autho lacks Judiciary the power, constitutional its of pursuance in acts Congress it”); prompted have det “in that context subpoena in (holding (1975) 508 491, U.S. 421 Fund , Servicemen’s U.S. significance. legal any of devoid is Subpoenas the undergirding motives initial an As Congress. States United the by electors presidential of certification the to relevant information yield may seq. § A.R.S. under contest” “election an somehow is procedures election of conduct dispatched. easilybe contentionslegislation.can pendingBoth of specificitemexplicitly some tiedto which the state’s presidential electors are selected, are electors presidential state’s the which in manner the controlling with Constitution federal the by charged is Legislature Arizona eoae h atoiy f h Aioa uiir, vn f hy a ipce Congress’ impacted had they if even judiciary, Arizona the of authority the derogate Congress, States ce because ermining the legitimacy of a congressional act we do not look to the motives alleged to alleged motives the to look not do we act congressional a of legitimacy the ermining
A. rlmnrl, htvr h Cut hpteie my r a nt e h “true” the be not may or may hypothesizes County the whatever Preliminarily, To be sure, one impetus for the Subpoenas’ issuance was the possibility that they that possibility the was issuance Subpoenas’ the for impetus one sure, be To the into inquiry legislative any that notion sophistic County’s the said, being That
rtification objections can be raised and adjudicated exclusively in the United United the in exclusively adjudicated and raised be can objections rtification
h Sbons Ar Subpoenas The Contest” see
, 360 U.S. 109, 132 (1959) (“So long as as long (“So (1959) 132 109, U.S. 360 States, United v. Barenblatt USC § 5 te upea itiscly akd n cpct to capacity any lacked intrinsically Subpoenas the 15, § U.S.C. 3
matter, that in itself was a valid legislative purpose. The purpose. legislative valid a was itself in that matter, Not e
— n Cud o Be Not Could and 10
see
U.S. Const. art. II, art. Const. U.S.
— ared winner received the received winner ared
at f n “Election an of Part as elected to the office. See Eastland v. Eastland See § 1 § . Further, Further, .
- 16- 672, rity to to rity 672 et
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
other than tired canards about “overturning” the election. resuscitate this dead issue, its continued defiance of the Subpoenas must rely on something about ruminations continued a are County’s it “overturning” the concluded, irrevocably and definitively tha agree proceeding this to parties all Because returns. College Electoral the of certification Congress’ and Subpoenas the between relationship cert n pasblt, h Cut ised ios o nw hoy ht hr ms b “ be currently must there that theory new a to pivots instead County the plausibility, any novel “pending legislation rule” is a pure contrivance of the County. the of contrivance pure a is rule” legislation “pending novel — County the when contemplating the relationship of the Arizona Senate to County officials: resonate that words in reasoned, court the purpose, legislative valid any lacked General contenti the Dismissing proposition. that contrary, the seminal case recognizing the congressional subpoena power eschewed exactly never suggested, let alone held, that a subpoena must be conjoined to an extant bill. To the circumstances in circumstances the While subpoena. legislative lawful a to prerequisite ordained judicially a been, has ification determinations. determinations. ification In any event, the County has, through its unlawful obstruction, rendered moot any any moot rendered obstruction, unlawful its through has, County the event, any In Perhaps recognizing that its shibboleths about election subversions are rapidly B. ujc t b ivsiae ws h amnsrto o te eatet of neglected or misdirected, and particularly Department the of administration the Justice- was investigated be to subject the that show does it but legislation; of aid in be to intended is it that avow It is quite true that the resolution directing the investigation does not in terms appropriate remedies against the wrongdoers; specific instances of alleged of instances specific wrongdoers; the against remedies puni appropriate to proceedings of prosecution the and of respect institution in duties their neglecting or performing were assistants his -
pending may have included a particular relevant legis relevant particular a included have may Bills Introduced Specific on Predicated Be Not Need Subpoenas Legislative whether its fu its whether Wilkinson v. United States United v. Wilkinson
legislation,” legislation,” MTD at 4, before a subpoena may be properly issued. This
. Notwithstanding the County’s dogged efforts to to efforts dogged County’s the Notwithstanding sequitur. non nctions were being properly discharged or were being were or discharged properly being were nctions
on that a Senate investigation into the Attorney the into investigation Senate a that on 11 , 365 U.S. 399 (1961) 399 U.S. 365 ,
whether the Attorney General and
t the 2020 presidential election has has election presidential 2020 the t
lative item, the Supreme Court Court Supreme the item, lative h rms n enforce and crimes sh
— the sole case cited by by cited case sole the
It is not, and never never and not, is It
actual,
losing losing
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
McGrain v. Daugherty v. McGrain see also id also see added); emphasis omitted; (citation (2020) 2031 2019, Ct. S. 140 LLP, demands “concern a subject upon which legislation its if purpose legislative valid a of furtherance in is subpoena legislative a that maxim the
future future efforts to undermine our political process and national securi develop ‘to legislation and policy reforms to “planned ensure the U. S. government is it better positioned to counter that averment committee’s on part in premised was (subpoena nevr perd o e nehrd rm n ietfe lgsaie rpsl proposal. legislative identified any from untethered be to appeared endeavor practices solicitation contribution political Commission’s corporations subject to the regulatory jurisdiction of the Corporation Commiss and persons and appointive, and elective personnel, relationship Commission existing Corporation the between of phases “all of examination legislative a to pursuant issued sub legislative a of validity the affirmed Court Supreme Arizona the investigations,” in Arizona. Recognizing that “[i]t is within the powers of legislative committees to conduct unearthed in federal law (and, as discussed above, it cannot), it certainly has no application purpose). legislative valid a was elections U.S. in interference Russian alleged into investigation (congressional laws); certain of” and continuing study and investigation of . . . the administration, operation, and enforcement complete a “make to efforts to pursuant issued subpoena congressional (upholding 493 at year. to year from needed are Congress of judgment the in as appropriations such under on carried legislati are activities its and maintained congressional by regulation to and powers the the Justice, duties of the Attorney General, and the duties of his assistants of are all subject which Department the information of functions the the that reflected by aided materially be investigation would and had be neglect being recited. Further, even if the County’s chimerical “pending legislation” restriction could be could restriction legislation” “pending chimerical County’s the if even Further, 91 F. Supp. 3d 34, 43 (D.D.C. 2018) (D.D.C. 43 34, 3d Supp. F. 2 91 Bank, Doe John v. LLC Bean
a cluae t elicit. to calculated was
, 273 U.S. 135, 177 135, U.S. 273 ,
Plainly the subject was one on which legislation could
– 12 78 (1927). Subsequent cases have reaffirmed have cases Subsequent (1927). 78
hs eoe mnfs we i is it when manifest becomes This n ad ht h dprmn is department the that and on, could be had
—
owtsadn ta this that notwithstanding
.” ty’”); ty’”); Trump v. Mazars USA, Eastland ion” and the and ion” , 421 U.S. . . ul v. Buell at 2027 at poena
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
many legislativeinquiries many f Motion III. lacks subpoena valid a to precedent condition a is legislation pending of item antecedent some that notion This problem. the of nature and existence the ascertain can thisinvert would ruleproposed County’s The remedy. to seek should it ills what so, if and all, atwarranted Superior Court Catrone interchangeable.” not the are ‘confidential’ and ‘privileged’ by terms “[t]he But access public. general from insulated and confidential are materials balloting and information the of light in reemphasis County’s submissions. merit however, points, particular Two here. reiterated be provisions of the Election Procedures Manual to the Subpoenas. Those arguments need not evidently avalid legislative purpose. with an eye to introducing potential reform proposals in the Fifty duties— statutory their performing in officials county of competence the and systems th result.”). end predictable no be need there congressional inquiry to be defined by what it produces . . .To be a valid legislative inquiry proposals. legislative specific indefinite; their validity is and not contingent on the existence expansive of past (or, for are that matter, future) powers investigatory inherent Legislature’s The sustenance. logical rough the Subpoenas to evaluate the accuracy and efficacy of existing vote tabulation tabulation vote existing of efficacy and accuracy the evaluate to Subpoenas the rough
County to Defy Compulsory Process nvention also makes no practical sense. The purpose of purpose The sense. practical no makes also invention doctrinal County’s The rsdn Fn ad himn eesn led hv adesd t egh n the in length at addressed have already Petersen Chairman and Fann President The Confidentiality Laws Cited By the County Do Not Create a Privilege of the First In short, the Judiciary Committee’s objective of using data and information gleaned gleaned information and data using of objective Committee’s Judiciary the short, In v. Miles v. or Preliminary Injunction (pp. 13 (pp. Injunction Preliminary or , the County spills much ink to establish an undisputed proposition: certain voter , 96 Ariz. 62, 64, 66 (1964). (1964). 66 64, 62, Ariz. , 96 , 215 Ariz. 446, 454, ¶ 21 (App. 2007). The County remains at a loss to to loss a at remains County The 2007). (App. 21 ¶ 454, 446, Ariz. 215 , logic, requiring the legislative body to first formulate a solution before it before solution a formulate first to body legislative the requiring logic,
— including this one this including Nor is the legitimacy of a of legitimacy the is (“Nor 509 at U.S. 421 Eastland, See
-
15) the inapplicability of various statutes and statutes various of inapplicability the 15) 13
—
is to discern whether reform legislation is is legislation reform whether discern to is
-
Fifth Legislatu
any legal any — re— is is self
all or -
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
Whatever the law may be in other states, other in be may law the Whatever immunize documents or information from compulsory process. process. compulsory from information or documents immunize necessarily not do privileges recognized even that clarified has Court Supreme Arizona political p personal a subdivision inferior an in vest restrictions confidentiality statutory general that notion the 7 cognizable a into transmogrified be can access public on restrictions statutory general how explain implicated implicated by the compelled disclosure of documents relating to state judges, concerns powers of separation by part in impelled been have to appears and law, Arizona judicial independence.”). independence.”). judicial fundamental of preservation the to essential is proceedings Commission of confidentiality Cherberg xml, ... 16 § A.R.S. example, elapsed. Other of the County’s statutory arguments amble has period contest the and certified been has election the after long arising proceedings materials may be responsive to, and subject to disclosure by, compulsory pr these that acknowledges implicitly years two to up for ballots of retention the mandates committing a criminal act. This is nonsensical. The statutory safeguards governing public processing routine during image ballot a to colleague officials government self It party. third a to ballot “authorized government official in the scope of the official’s duties.” That A.R.S. § 16 any to available is information voter confidential otherwise that provides expressly 168(F) 16 § A.R.S. materials. subpoenaed the to access Legislature’s the contemplate impliedly patient] privilege to stand as a bulwark against [Medicaid] fraud investigations”). t intended agencies], state [to authority investigatory broad such granting in (rejecting cl also
State v. Zeitner The Washington State case the County relies upon does not illuminate questions of questions illuminate not does upon relies County the case State Washington The , many of the statutes invoked by the County either explicitly permit or or permit explicitly either County the by invoked statutes the of many Second, , 765 P.2d 1284, 1288 (Wash. 1988) (“This court has recognized that that recognized has court (“This 1988) (Wash. 1288 1284, P.2d 765 , privilege aims of attorney
, 246 Ariz. 161, 167, ¶ 22 (2019) (“We cannot infer that the legislature, — against disclosure demanded by lawfully issued compulsory process. compulsory issued lawfully by demanded disclosure against - 084 gnrly rhbt showing prohibits generally 1018(4) n i i dd eey ony mlye h epss isl o a or himself exposes who employee County every did, it if and rivilege that can abrogate a valid legislative inquiry. Indeed, the the Indeed, inquiry. legislative valid a abrogate can that rivilege
- client privilege raised in response to legislative subpoena); - vdnl hs o plcto t te eiw f alt by ballots of review the to application no has evidently
7
the Arizona authorities are bereft of support for for support of bereft are authorities Arizona the 14
and tabulation activities would be would activities tabulation and
into into the realm of the absurd. For “ nte vtrs completed voter’s” another
See Buell See ocess in various , 96 Ariz. at 69 69 at Ariz. 96 , he [physician- he see Ga
rner v. - 624 see -
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
IV. valid subpoena. asser may it that privilege evidentiary an with County the clothe not do simply materials ballot and information voter to access necessary an individual legislator or subset of legislators to effectuate some legal act, have independent standing to pursue claims arising out of this prerogative. contempt, of finding formal a for required is house legislative relevant the of resolution a While rubrics. remedial distinct and discrete two conflate to appears County Chairman Subpoenas has standing to challenge the law’s enactment by only a majority a only by enactment law’s the challenge to standing has (concluding that “a group of plaintiff legislators sufficient to have blocked [a bill’s] passage - 765 755, F.3d 968 , McGahn v. Representatives enforcement. their seek to standing auth subunit legislative the that indicated have likewise those positions); for nominees” of th list Commission’s Appointment the of legality the challenge to by standing designated officials the “have Commission, Redistricting Independent as the to President, appointments make to Senate Constitution the and House the of Speaker Appointments Court Appellate on Comm’n v. Forty proceedings. these in raised 41- 1153(A), there is no textual basis for engrafting this prerequisite onto the civil claims civil the onto prerequisite this engrafting for basis textual no is there 1153(A), - eet Legislature Seventh A. The Counties’ Remaining Defenses All Fail as a Matter of Law Although a vote of the full legislative chamber is the enforcing remedies civil fashion to jurisdiction has Court this that Assuming
precondition to doing so. When a constitutional or statutory provision empowers — eesn nobel miti sadn t oti te. rlmnrl, the Preliminarily, them. obtain to standing maintain undoubtedly Petersen and, for the reasons discussed in Section I above, it does Subpoenas in this Court Fann President Biggs v. Cooper ex rel. County of Maricopa
, 213 Ariz. Ariz. 213 Napolitano, v.
and Chairman Petersen Have Standing to Enforce the Enforce to Standing Have Petersen Chairman and See t against the sovereign Legislature sovereign the against t
Comm. on Judiciary of United States House of House States United of Judiciary on Comm. 15
, 227 Ariz. 128, 131, ¶ 9 (2011) (finding that that (finding (2011) 9 ¶ 131, 128, Ariz. 227 ,
6 DC Cr 22) cnldn that (concluding 2020) Cir. (D.C. 66 482,
sufficient
rzd o su sbons has subpoenas issue to orized , 236 Ariz. 415, 418, ¶ 8 (2014) 8, 16 ¶ 487,
to to initiate a civil suit,
vote”). Federal courts Federal vote”). — (2006), President Fann and
those in response to a a to response in See, e.g. see
lawmakers lawmakers it is not a a not is it A.R.S. , Adams Adams see § e
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
remain under the legal supervision and control of the Board of Supervisors. Supervisors. of Board the of control and supervision legal the under remain recor and documents the of certain for inspection.” for accounts A.R.S. § 11 - and books their present and reports make . . . to officers the officer county all of conduct official the “[s]upervise to The Legislature has expressly charged the Board of Supervisors with the duty and authority possession 41- mootness gambit is unavailing. ¶¶ 40- that document a produce to compelled be may witness “a that (noting 1983) (App. 38 injury — concrete a incur legislators Court this in redressable those chairs, committee and officers presiding sustained the committee’s Article III standing). turn in which committee, the to injury informational an caused subpoena the of disregard inv House’s the assigned was committee issuing the because dnia sbon we te Fifty the when subpoena identical 560, 563 (1990). President Fann has averred under oath that she will reissue a substantively January 11 and that Chairman Petersen intends to do the same. same. the do intendsto Petersen thatChairman and 11 January to become have that cases consider “will Courts lacking. is Subpoenas the of obstruction ongoing its
recur.” recur.” 14 lgsaie upea a rqie eiin t poue ouet “n his “in documents produce to recipient require may subpoena (legislative 1154 41. Although delay has been the The County’s effort to effort County’s The C. B. 41 § A.R.S. because Thus, The County’s attempt to evade on ostensible “mootness” grounds judicial review of
moot
Big D Const. Corp. v. Court of Appeals for State of Ariz., Div. One Div. Ariz., of State for Appeals of Court v. Corp. Const. D Big or 251(1). Although the County Recorder’s
The Recorder Party Is Necessary Not a Subpoenas Parties’ The when significant questions of public importance are presented and are li are andpresented importanceare public significant questionsof when under his control” (emphasis added)); (emphasis control” his under
—
Is Not Moot when, as here, a properly issued subpoena is defied. Controversy deflect by pointing a finger at finger a pointing by deflect
- 1151 delegates each house’s investigatory powers to its to powers investigatory house’s each delegates 1151 - it Lgsaue omne its commences Legislature Fifth ds demanded bytheds demanded Subpoenas, those materials thus modus operandi
vr h Vldt ad nocaiiy f the of Enforceability and Validity the Over 16
Helge v. Druke v. Helge Office
of the County in this case, its current s . . . and, when necessary, require necessary, when and, . . . s
may be the physical repository estigatory powers, the alleged the powers, estigatory
the Recorder fares no better. better. no fares Recorder the See
VerifiedCounterclaim , 136 Ariz. 434, 437 434, Ariz. 136 , regular session on on session regular See
, 163 Ariz. Ariz. 163 , A.R.S. § A.R.S. kely –
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
void, inert, be will part no that so meaning given be must sentence and clause, phrase, word, “[e]ach 41 § A.R.S. documents.” or papers books, relevant and electronic form. A legislative subpoena may command a recipient to produce “any material cannot becured.”). joi to failure for dismissal party; that at i necessary is party party.” a made be person the that order must court the joined, been not has party a made be to required person a “[i]f that instructs 19(a)(2) County the that concludes reason whatever for Recorder’s presence is necessary, it may simply Court add him. Arizona Rule of Civil Procedure the if And remainder. the of by the Subpoenas, it is not immune from an injunction or other order compelling production https://www.yourvalley.net/stories/board P subpoenas,205361 he n cmue, lcrnc trg dvc, r n ohr eim” medium.” other any or device, storage electronic computer, a on stored information any “embraces ‘document’ term the understood, commonly as Indeed, materials. tactile or physical just not encompasses that ambit expansive an with it imbue to enumerated intent an Legislature imparts “papers” the and “books” That from distinct classification a (1949)). as “documents” 72 68, Ariz. 69 Yates, v. Phoenix of City or psess h atoiy o eusto te eesr mtras rm h County the from Recorder. materials necessary the requisition to authority the possesses Board “a endorsed iltv Subpoenas , gislative Le to ARTIES controls Materials are not immune from compelled disclosure merely because they exist in exist they because merely disclosure compelled from immune not are Materials D. Further, even if the Board did lack legal control over some of the materials sought materials the of some over control legal lack did Board the if even Further,
§ 350 (“[T]he 350 §
See
dant,redun or trivial.” though he does not have possession of it”). Indeed, the Board has publicly publicly has Board the Indeed, it”). of possession have not does he though
forensic audit of election equipment,” which necessarily presupposes that the the that presupposes necessarily which equipment,” election of audit forensic Electronic Documents Are Subject to the Legislative Subpoena Power
The Maricopa County Board of Supervisors, . .
and failure i jidr s o fail. feasible. not is joinder his
to D AILY AILY
join State v. n a necessary party is warranted only when the defect the when only warranted is party necessary a n an indispensable party may be overcome by joining by overcome be may party indispensable an
I NDEPENDENT -
of- Burbey, 243 Ariz. 145, 147, ¶ 10 (2017) (quoting 17 supervisors-
Dismissal is proper only if a missing a if only proper is Dismissal e id. See , Dec. 22, 2020, 2020, 22, Dec. ,
- 1154. When construing a construing When 1154. responds Board of Supervisors Responds
ue 9b; 59 19(b); Rule
- to - - legislative B LACK vial at available A M .
’ J S statute, UR L .
AW 2
D
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
materials as expeditiously as possi electronic media,they nonetheless remain“documents”that aresubject to disclosure. ouet, eod, aeil, n ifrain epnie o ihr r oh f the of both or either to Subpoenas. responsive information and materials, records, documents, to full in available make D accommodation concern, President Fann and Chairman Petersen remain amenable to negotiating reasonable ma If so. do to it orders Court this until and unless Subpoenas the with comply not will it that clear made has County the respond, to which in days 300 or days three allotted is it whether of Irrespective them. to pursuant since the Subpoenas’ issuance, twenty Despite obduracy. ongoing its excuse plausibly cannot t subject is metadata, embedded disclosure under our public records law.”). any including record, the of version electronic the format, electronic an in record public a maintains entity public a when that hold . . . (“We preliminary should Court ICTIONAR Thus, even if some of the materials sought by the Subpoenas are stored or reifiedinor stored are Subpoenas the by materialsthesought of some ifeven Thus, E. ht h Sbons ntal afre te ony he dy i wih o comply to which in days three County the afforded initially Subpoenas the That For the For
Y
injunction or other order compelling the the compelling order other or injunction
(11th ed. 2019); 2019); ed. (11th The County Has Had Ample Time to R 1 dn te onys oin o ims i is niey ad (2) and entirety, its in Dismiss to Motion County’s the deny (1) reasons set forth herein and in the Motion for a Preliminary Injunction Preliminary a for Motion the in and herein forth set reasons s , provided that the County works diligently to supply the requested requested the supply to diligently works County the that provided ,
rsdn Fn o Cara Petersen Chairman or Fann President cf. Lake v. City of Phoenix of City v. Lake cf. the the County still has not produ ble. C
ONCLUSION tters of timing are truly a genuine and good faith faith good and genuine a truly are timing of tters
18
County espond to the Subpoenas tothe espond , 222 Ariz. 547, 551, ¶ 14 (2009) (2009) 14 ¶ 551, 547, Ariz. 222 , ced a single document or item - to immediately produce or or produce immediately to seven days having elapsed having days seven
(or (or their eine) all designees)
ne a enter , the the ,
o
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
R ESPECTFULLY SUBMITTED ESPECTFULLY
By:
this this Committee Chairman Warren Petersen Karen Fann and Senate Judiciary Counterclaim Attorneys for
19 Phoenix, Arizona 649 North Fourth Avenue, First Floor Thomas Basile Kory Langhofer STATECRAFT PLLC STATECRAFT /s/Thomas Basile /s/Thomas
th day 11th of21 January,20
Defendants/
Arizona Senate President
85003
Plaintiffs .
in in
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
[email protected] Phoenix, Arizona 85016 2375 East Camelback Road, Suite 750 Hinshaw & Culbertson LLP Steven W. a Notice ofElectronic Filing to the following registrants: TurboCourt oftransmittal and filingfor System TurboCourt the using Office Clerk’s the to document Thomas Basile By: Attorneys for the Democratic Members of the Senate Judiciary [email protected] [email protected] Tempe, Arizona 85283 401 West Baseline Road, Suite 205 Barton Mendez Soto PLLC Jacqueline Soto Mendez James Barton Attorneys for the Plaintiffs/Defendants in Counterclaim [email protected] Phoenix, Arizona 85003 225 West Madison Stre Maricopa County Attorney’s Office Thomas P. Liddy, Deputy County Attorney
_/s/Thomas Basile I hereby certify that on on that certify hereby I
Tully
et
CERTIFICATE OF SERVICE 1 202 11, January
, I electronically transmitted the attached attached the transmitted electronically I ,
Committee
Exhibit 5
Exhibit 5
Exhibi t 6
Exhibit 6 5/19/2021 Arizona Senate hires auditor to review 2020 election in Maricopa County
OFFICIAL WEBSITE OF THE ARIZONA STATE SENATE Remain Hea REPUBLICAN CAUCUS Reopen Ariz Restore Con
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Arizona Senate Republicans Mar 31 2 min read
Arizona Senate hires auditor to review 2020 election in Maricopa County
Wednesday, March 31, 2021 FOR IMMEDIATE RELEASE
Arizona Senate hires auditor to review 2020 election in Maricopa County
(Phoenix, State Capitol) --- Arizona Senate leadership today announced it has hired a team of independent auditors to complete a comprehensive, full forensic audit of the 2020 election in Maricopa County, including a hand recount of all ballots.
After months of interviewing various forensic auditors, the Arizona Senate has found a qualified team consisting of Wake Technology Services, Inc., CyFIR, LLC, Digital Discovery, and Cyber Ninjas, Inc. to conduct the audit. Let's Chat!
https://www.azsenaterepublicans.com/post/arizona-senate-hires-auditor-to-review-2020-election-in-maricopa-county 1/7 5/19/2021 Arizona Senate hires auditor to review 2020 election in Maricopa County The team will be led by Cyber Ninjas, a cyber security company with a focus on application security, working across financial services and government sectors.
CyFIR is a digital security and forensics company specializing in enterprise incident response, computer forensics and expert witness support to litigation. Notable past engagements include the discovery of the Office of Personnel Management Breach in 2015 and forensic support to the largest individual bank fraud in the history of the IMF. As specialists supporting the highest levels of government and private industry, they are extremely familiar with responding to nation-state cyber activity, including Advanced Persistent Threats (APT).
Members of the Wake Technology Services group have performed hand-count audits in Fulton County, PA and in New Mexico as part of the 2020 General Election cycle. In addition, team members have been involved in investigating election fraud issues, dating back to 1994. In that 1994 case, this team member worked closely with the FBI during the investigation. Wake Technology Services team members also include intelligence analysts and fraud investigators from a variety of industries.
The audit will validate every area of the voting process to ensure the integrity of the vote. The scope of work will include, but is not limited to, scanning all the ballots, a full manual recount, auditing the registration and votes cast, the vote counts, and the electronic voting system. At the conclusion of the audit, the auditor will issue a report detailing all findings discovered during the assessment.
Senate leadership expects this audit to be done in a transparent manner with the cooperation of Maricopa County. "Our people need to be assured that the Senate and Maricopa County can work together on this audit, to bring integrity to the election process," said Senate President Karen Fann. "As Board Chair Sellers and County Recorder Richer wrote in the Arizona Republic 'a democracy cannot survive if its people do not believe elections are free and fair.' They also acknowledge a significant number of voters want the additional assurance that a full forensic audit might bring. I look forward to continued cooperation."
Because it is an independent audit, leadership will not be directly involved, and members do not expect to comment on any of the processes of the audit until the report is issued in about 60 days.
####
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https://www.azsenaterepublicans.com/post/arizona-senate-hires-auditor-to-review-2020-election-in-maricopa-county 2/7 Exhibi t 7
Exhibit 7
Exhibi t 8
Exhibit 8
Cyber Ninjas, Inc. Master Services Agreement This Master Services Agreement (the “Master Agreement”) is entered into as of the 31 day of March, 2021 (the “Effective Date”), between Cyber Ninjas, Inc., a Florida Corporation, (the “Contractor”), and the Arizona State Senate (the “Client”). Contractor and Client are referred to herein individually as a “Party” and collectively as the “Parties”.
WHEREAS, Client desires to retain Contractor, and Contractor desires to provide to Client the consulting and/or professional services described herein; and
WHEREAS, Client and Contractor desire to establish the terms and conditions that will regulate all relationships between Client and Contractor.
NOW THEREFORE, in consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1 SCOPE OF AGREEMENT
This Master Agreement establishes a contractual framework for Contractor’s consulting and/or professional services as described herein. The Parties agree to the terms and conditions set forth in this Master Agreement and in any Statement of Work executed by the Parties referencing this Master Agreement. Each Statement of Work is incorporated into this Master Agreement, and the applicable portions of this Master Agreement are incorporated into each Statement of Work. The Statement(s) of Work and this Master Agreement are herein collectively referred to as the “Agreement.”
2 STRUCTURE OF AGREEMENT.
2.1 Components of the Agreement. The Agreement consists of: (a) The provisions set forth in this Master Agreement and the Exhibits referenced herein; (b) The Statement(s) of Work attached hereto, and any Schedules referenced therein; and (c) Any additional Statements of Work executed by the Parties pursuant to this Agreement, including the Schedules referenced in each such Statement of Work. 2.2 Statement(s) of Work. The Services (as defined in Article 4) that Contractor will provide for Client will be described in and be the subject of (i) one or more Statements of Work executed by the Parties pursuant to this Agreement, and (ii) this Agreement. Each Statement of Work shall be substantially in the form of, and shall include the set of Schedules described in, “Exhibit 1-Form of Statement of Work”, with such additions, deletions and modifications as the Parties may agree. 2.3 Deviations from Agreement, Priority. In the event of a conflict, the terms of the Statements of Work shall be governed by the terms of this Master Agreement, unless an applicable Statement of Work expressly and specifically notes the deviations from the terms of this Master Agreement for the purposes of such Statement of Work.
3 TERM AND TERMINATION.
3.1 Term of Master Agreement. The Term of the Master Agreement will begin as of the Effective Date and shall continue until terminated as provided in Section 3.3 (the “Term”). 3.2 Term of Statements of Work. Each Statement of Work will have its own term and will continue for the period identified therein unless terminated earlier in accordance with Section 3.4 (the “Service Term”). In the event that the Service Term on any applicable Statement of Work expires and Services continue to be provided by Contractor and received and used by Client, the terms and conditions of the Master Agreement shall apply until the Services have been terminated. 3.3 Termination of Master Agreement. Either Party may terminate this Agreement immediately upon written notice to the other Party if there is no Statement of Work in effect. 3.4 Termination of Statement of Work by Client. A Statement of Work may be terminated by Client, for any reason other than Contractor’s breach, upon fourteen (14) days prior written notice to Contractor. In such event, (i) Contractor shall cease its activities under the terminated Statement of Work on the effective date of termination; and (ii) Client agrees to pay to Contractor all amounts for any amounts due for Services performed through the effective termination date. (iii) In the case of fixed price work whereby the effective date of termination is after Contractor has or will commence the Services, Client agrees to pay Contractor an amount that will be determined on a pro-rata basis computed by dividing the total fee for the Service by the number of days required for completion of the Services and multiplying the result by the number of working days completed at the effective date of termination. (iv) Client agrees to pay to Contractor all costs in full associated with equipment or other non-Service related costs that were incurred before the effective termination date. 3.5 Termination for Breach. Either party may terminate the Agreement in the event that the other party materially defaults in performing any obligation under this Agreement (including any Statement of Work) and such default continues un-remedied for a period of seven (7) days following written notice of default. If Client terminates the Agreement and/or any Statement of Work as a result of Contractor’s breach, then to the extent that Client has prepaid any fees for Services, Contractor shall refund to Client any prepaid fees on a pro-rata basis to the extent such fees are attributable to the period after such termination date. 3.6 Effect of Termination. Upon termination or expiration of this Agreement and/or a Statement of Work: (i) the parties will work together to establish an orderly phase-out of the Services; (ii) Client will pay Contractor for any amounts due under the Agreement, including all Services rendered under the terminated Statement of Work up to the effective date of the termination; and (iii) each Party will promptly cease all use of and destroy or return, as directed by the other Party, all Confidential Information of the other Party except for all audit records (including but not limited to work papers, videotapes, images, tally sheets, draft reports and other documents generated during the audit) which will be held in escrow in a safe approved by the GSA for TS/SCI material for a period of three years and available to the Contractor and Client solely for purposes of addressing any claims, actions or allegations regarding the audit (the “Escrow”), provided that, pursuant to Section 15.4, the Parties shall provide to each other documents and information that are reasonably necessary to the defense of any third party claims arising out of or related to the subject matter of this Agreement.
4 SERVICES.
4.1 Definitions. 4.1.1 “Services” shall mean consulting, training or any other professional services to be provided by Contractor to Client, as more particularly described in a Statement of Work, including any Work Product provided in connection therewith. 4.1.2 “Work Product” shall mean any deliverables which are created, developed or provided by Contractor in connection with the Services pursuant to a Statement of Work, excluding any Contractor’s Intellectual Property. 4.1.3 “Contractor’s Intellectual Property” shall mean all right, title and interest in and to the Services, including, but not limited to, all inventions, skills, know-how, expertise, ideas, methods, processes, notations, documentation, strategies, policies, reports (with the exception of the data within the reports, as such data is the Client’s proprietary data) and computer programs including any source code or object code, (and any enhancements and modifications made thereto), developed by Contractor in connection with the performance of the Services hereunder and of general applicability across Contractor’s customer base. For the avoidance of doubt, the term shall not include (1) the reports prepared by Contractor for Client (other than any standard text used by Contractor in such reports) pursuant to this Agreement or any Statement of Work, which shall be the exclusive property of Client and shall be considered “works made for hire” within the meaning of the Copyright Act of 1976, as amended; and (2) any data or process discovered on or obtained from the Dominion devices that will be the subject of the forensic review. 4.2 Obligation to Provide Services. Starting on the Commencement Date of each Statement of Work and continuing during each Statement of Work Term, Contractor shall provide the Services described in each such Statement of Work to, and perform the Services for, Client in accordance with the applicable Statement of Work and the Agreement. 4.3 Contractor’s Performance. Contractor will perform the Services set forth in each Statement of Work using personnel that have the necessary knowledge, training, skills, experience, qualifications and resources to provide and perform the Services in accordance with the Agreement. Contractor shall render such Services in a prompt, professional, diligent, and workmanlike manner, consistent with industry standards applicable to the performance of such Services. 4.4 Client’s Obligations. Client acknowledges that Contractor’s performance and delivery of the Services are contingent upon: (i) Client providing full access to such information as may be reasonably necessary for Contractor to complete the Services as described in the Statement(s) of Work including access to its personnel, facilities, equipment, hardware, network and information, as applicable; and (ii) Client promptly obtaining and providing to Contractor any required licenses, approvals or consents necessary for Contractor’s performance of the Services. Contractor will be excused from its failure to perform its obligations under this Agreement to the extent such failure is caused by Client’s delay in performing or failure to perform its responsibilities under this Agreement and/or any Statement of Work. 4.5 Location of Services. Contractor shall provide the Services at the site designated in the applicable Statement of Work.
4.6 Status Reports. Contractor shall keep Client informed of the status of the Services and provide Client with such status reports and other reports and information regarding the Services as reasonably requested by Client. 4.7 New Services. During the Term, Client may request that Contractor provide New Services for Client. New Services may be activities that are performed on a continuous basis for the remainder of the Term or activities that are performed on a project basis. Any agreement of the Parties with respect to New Services will be in writing and shall also become a “Service” and be reflected in an additional Statement of Work hereto or in an amendment to an existing Statement of Work hereunder. 4.8 Change of Services. “Change of Services” means any change to the Services as set forth in the Statement of Work that (i) would modify or alter the delivery of the Services or the composition of the Services, (ii) would alter the cost to Client for the Services, or (iii) is agreed by Client and Contractor in writing to be a Change. From time to time during the Term, Client or Contractor may propose Changes to the Services. The following process is required to effectuate a Change of Services by either Party: 4.9 A Project Change Request (“PCR”) will be the vehicle for communicating change. The PCR must describe the change, the rationale for the change, and the effect the change will have on the Services. 4.10 The designated project manager of the requesting Party will review any proposed change prior to submitting the PCR to the other Party. 4.11 Contractor and Client will mutually agree upon any additional fees for such investigation, if any. If the investigation is authorized, the Client project manager will sign the PCR, which will constitute approval for the investigation charges. Contractor will invoice Client for any such charges. The investigation will determine the effect that the implementation of the PCR will have on Statement of Work terms and conditions. 4.12 Upon completion of the investigation, both parties will review the impact of the proposed change and, if mutually agreed, a written addendum to the Statement of Work must be signed by both Parties to authorize implementation of the investigated changes that specifically identifies the portion of the Statement of Work that is the subject of the modification or amendment and the changed or new provision(s) to the Statement of Work. 4.13 End Client Requirements. If Contractor is providing Services for Client that is intended to be for the benefit of a customer of Client (“End Client”), the End Client should be identified in an applicable Statement of Work. The Parties shall mutually agree upon any additional terms related to such End Client which terms shall be set forth in a Schedule to the applicable Statement of Work. 4.14 Client Reports; No Reliance by Third Parties. Contractor will provide those reports identified in the applicable Statement of Work (“Client Report”). The Client Report is prepared uniquely and exclusively for Client’s sole use. The provision by Client of any Client Report or any information therein to any third party shall not entitle such third party to rely on the Client Report or the contents thereof in any manner or for any purpose whatsoever, and Contractor specifically disclaims all liability for any damages whatsoever (whether foreseen or unforeseen, direct, indirect, consequential, incidental, special, exemplary or punitive) to such third party arising from or related to reliance by such third party on any Client Report or any contents thereof.
4.15 Acceptance Testing. Unless otherwise specified in an Statement of Work, Client shall have a period of fourteen (14) days to perform Acceptance Testing on each deliverable provided by Contractor to determine whether it conforms to the Specifications and any other Acceptance criteria (collectively as the “Acceptance Criteria”) stated in the Statement of Work. If Client rejects the deliverable as non-conforming, unless otherwise agreed to by the parties, Contractor shall, at its expense, within fourteen (14) days from the date of notice of rejection, correct the deliverable to cause it to conform to the Acceptance Criteria and resubmit the deliverable for further Acceptance testing in accordance with the process specified in this Section 4.15. In the event that the deliverable does not conform to the Acceptance Criteria after being resubmitted a second time, Client, may at its option, (i) provide Contractor with another fourteen (14) days to correct and resubmit the deliverable or (ii) immediately terminate the Statement of Work and obtain a refund of any amounts paid for the non-conforming Services pursuant to the applicable Statement of Work.
5 FEES AND PAYMENT TERMS.
5.1 Fees. Client agrees to pay to Contractor the fees for the Services in the amount as specified in the applicable Statement of Work. 5.2 Invoices. Contractor shall render, by means of an electronic file, an invoice or invoices in a form containing reasonable detail of the fees incurred in each month. Upon completion of the Services as provided in the Statement of Work, Contractor shall provide a final invoice to Client. Contractor shall identify all taxes and material costs incurred for the month in each such invoice. All invoices shall be stated in US dollars, unless otherwise specified in the Statement of Work. 5.3 Payment Terms. All invoices are due upon receipt. Payment not received within 30 days of the date of the invoice is past due. Contractor reserves the right to suspend any existing or future Services when invoice becomes thirty (30) days past due. Client shall pay 1.5% per month non- prorated interest on any outstanding balances in excess of thirty days past due. If it becomes necessary to collect past due payments, Client shall be responsible for reasonable attorney fees required in order to collect upon the past-due invoice(s). 5.4 Taxes. The applicable Statement of Work shall prescribe the parties’ respective responsibilities with respect to the invoicing and payment of state sales, use, gross receipts, or similar taxes, if any, applicable to the Services and deliverables to be provided by Contractor to Client. Client shall have no responsibility with respect to federal, state, or local laws arising out of Contractor’s performance of any Statement of Work, including any interest or penalties.
6 PERSONNEL.
6.1 Designated Personnel. Contractor shall assign employees that are critical to the provision and delivery of the Services provided (referred to herein as “Designated Personnel”) and except as provided in this Article 6, shall not be removed or replaced at any time during the performance of Services in a Statement of Work, except with Client’s prior written consent. 6.2 Replacement of Designated Personnel by Contractor. Notwithstanding the foregoing, if any Designated Personnel becomes unavailable for reasons beyond Contractor’s reasonable control or Designated Personnel’s professional relationship with Contractor terminates for any reason,
Contractor may replace the Designated Personnel with a similarly experienced and skilled employee. In such event, Contractor shall provide immediate notification to Client of a change in a Designated Personnel’s status. 6.3 Replacement of Designated Personnel by Client. In the event that Client is dissatisfied for any reason with any Designated Personnel, Client may request that Contractor replace the Designated Personnel by providing written notice to Contractor. Contractor shall ensure that all Designated Personnel are bound by the terms and conditions of this Agreement applicable to their performance of the Services and shall be responsible for their compliance therewith. 6.4 Background Screening. Contractor shall have performed the background screening described in Exhibit 2 (Background Screening Measures) on all of its agents and personnel who will have access to Client Confidential Information prior to assigning such individuals or entities to provide Services under this Agreement.
7 PROPRIETARY RIGHTS.
7.1 Client’s Proprietary Rights. Client represents and warrants that it has the necessary rights, power and authority to transmit Client Data (as defined below) to Contractor under this Agreement and that Client has and shall continue to fulfil all obligations with respect to individuals as required to permit Contractor to carry out the terms hereof, including with respect to all applicable laws, regulations and other constraints applicable to Client Data. As between Client and Contractor, Client or a political subdivision or government entity in the State of Arizona owns all right, title and interest in and to (i) any data provided by Client (and/or the End Client, if applicable) to Contractor; (ii) any of Client’s (and/or the End Client, if applicable) data accessed or used by Contractor or transmitted by Client to Contractor in connection with Contractor’s provision of the Services (Client’s data and Client’s End User’s data, collectively, the “Client Data”); (iii) all intellectual property of Client (“Client’s Intellectual Property”) that may be made available to Contractor in the course of providing Services under this Agreement. 7.2 License to Contractor. This Agreement does not transfer or convey to Contractor any right, title or interest in or to the Client Data or any associated Client’s Intellectual Property. Client grants to Contractor a limited, non-exclusive, worldwide, revocable license to use and otherwise process the Client Data and any associated Client’s Intellectual Property to perform the Services during the Term hereof. Contractor’s permitted license to use the Client Data and Client’s Intellectual Property is subject to the confidentiality obligations and requirements for as long as Contractor has possession of such Client Data and Intellectual Property.
7.3 Contractor’s Proprietary Rights. As between Client and Contractor, Contractor owns all right, title and interest in and to the Services, including, Contractor’s Intellectual Property. Except to the extent specifically provided in the applicable Statement of Work, this Agreement does not transfer or convey to Client or any third party any right, title or interest in or to the Services or any associated Contractor’s Intellectual Property rights, but only grants to Client a limited, non- exclusive right and license to use as granted in accordance with the Agreement. Contractor shall retain all proprietary rights to Contractor’s Intellectual Property and Client will take no actions which adversely affect Contractor’s Intellectual Property rights. For the avoidance of doubt and notwithstanding any other provision in this Section or elsewhere in the Agreement, all documents, information, materials, devices, media, and data relating to or arising out of the administration of the November 3, 2020 general election in Arizona, including but not limited to voted ballots, images of voted ballots, and any other materials prepared by, provided by, or originating from the Client or any political subdivision or governmental entity in the State of Arizona, are the sole and exclusive property of the Client or of the applicable political subdivision or governmental entity, and Contractor shall have no right or interest whatsoever in such documents, information, materials, or data.
8 NONDISCLOSURE.
8.1 Confidential Information. “Confidential Information” refers to any information one party to the Agreement discloses (the “Disclosing Party”) to the other (the “Receiving Party”). The confidential, proprietary or trade secret information in the context of the Agreement may include, but is not limited to, business information and concepts, marketing information and concepts, financial statements and other financial information, customer information and records, corporate information and records, sales and operational information and records, and certain other information, papers, documents, studies and/or other materials, technical information, and certain other information, papers, documents, digital files, studies, compilations, forecasts, strategic and marketing plans, budgets, specifications, research information, software, source code, discoveries, ideas, know-how, designs, drawings, flow charts, data, computer programs, market data; digital information, digital media, and any and all electronic data, information, and processes stored on Maricopa County servers, portable storage media and/or cloud storage (remote servers) technologies, and/or other materials, both written and oral. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in the Receiving Party’s possession at the time of disclosure; (ii) is independently developed by the Receiving Party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of the Receiving Party’s improper action or inaction; or (iv) is approved for release in writing by the Disclosing Party.
8.2 Nondisclosure Obligations. The Receiving Party will not use Confidential Information for any purpose other than to facilitate performance of Services pursuant to the Agreement and any applicable Statement of Work. The Receiving Party: (i) will not disclose Confidential Information to any employee or contractor or other agent of the Receiving Party unless such person needs access in order to facilitate the Services and executes a nondisclosure agreement with the Receiving Party, substantially in the form provided in Exhibit 3; and (ii) will not disclose Confidential Information to any other third party without the Disclosing Party’s prior written consent. Without limiting the generality of the foregoing, the Receiving Party will protect Confidential Information with the same degree of care it uses to protect its own Confidential Information of similar nature and importance, but with no less than reasonable care. The Receiving Party will promptly notify the Disclosing Party of any misuse or misappropriation of Confidential Information that comes to the Receiving Party’s attention. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority; however, the Receiving Party will give the Disclosing Party prompt notice of any such legal or governmental demand and will reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense. For the avoidance of doubt, this provision prohibits the Contractor and its agents from providing data, information, reports, or drafts to anyone without the prior written approval of the Client. The Client will determine in its sole and unlimited discretion whether to grant such approval. 8.3 Injunction. The Receiving Party agrees that breach of this Article 8 might cause the Disclosing Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the Disclosing Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security. 8.4 Return. Upon the Disclosing Party’s written request and after the termination of the Escrow, the Receiving Party will return all copies of Confidential Information to the Disclosing Party or upon authorization of Disclosing Party, certify in writing the destruction thereof. 8.5 Third Party Hack. Contractor shall not be liable for any breach of this Section 8 resulting from a hack or intrusion by a third party into Client’s network or information technology systems unless the hack or intrusion was through endpoints or devices monitored by Contractor and was caused directly by Contractor’ gross negligence or wilful misconduct. For avoidance of doubt, Contractor shall not be liable for any breach of this Section 8 resulting from a third-party hack or intrusion into any part of Client’s network, or any environment, software, hardware or operational technology, that Contractor is not obligated to monitor pursuant to a Statement of Work executed under this Agreement. 8.6 Retained Custody of Ballots. The Client shall retain continuous and uninterrupted custody of the ballots being tallied. For the avoidance of doubt, this provision requires Contractor and each of its agents to leave all ballots at the counting facility at the conclusion of every shift.
8.7 Survival. This Section 8 shall survive for three (3) years following any termination or expiration of this Agreement; provided that with respect to any Confidential Information remaining in the Receiving Party’s possession following any termination or expiration of this Agreement, the obligations under this Section 8 shall survive for as long as such Confidential Information remains in such party’s possession.
9 NO SOLICITATION.
Contractor and Client agree that neither party will, at any time within twelve (24) months after the termination of the Agreement, solicit, attempt to solicit or employ any of the personnel who were employed or otherwise engaged by the other party at any time during which the Agreement was in effect, except with the express written permission of the other party. The Parties agree that the damages for any breach of this Article 9 will be substantial, but difficult to ascertain. Accordingly, the party that breaches this Article 9, shall pay to other party an amount equal to two times (2x) the annual compensation of the employee solicited or hired, which amount shall be paid as liquidated damages, as a good faith effort to estimate the fair, reasonable and actual damages to the aggrieved party and not as a penalty. Nothing in the Agreement shall be construed to prohibit either party from pursuing any other available rights or remedies it may have against the respective employee(s).
10 DATA PROTECTION
10.1 Applicability. This Article 10 shall apply when Contractor is providing Services to Client which involves the processing of Personal Data which is subject to Privacy Laws. 10.2 Definitions. For purposes of this Article 10: (a) “Personal Data” means any information relating to an identified or identifiable natural person which is processed by Contractor, acting as a processor on behalf of the Client, in connection with the provision of the Services and which is subject to Privacy Laws. (b) “Privacy Laws” means any United States and/or European Union data protection and/or privacy related laws, statutes, directives, judicial orders, or regulations (and any amendments or successors thereto) to which a party to the Agreement is subject and which are applicable to the Services. 10.3 Contractor’s Obligations. Contractor will maintain industry-standard administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Personal Data. Contractor shall process Personal Data only in accordance with Client's reasonable and lawful instructions (unless otherwise required to do so by applicable law). Client hereby instructs Contractor to process any Personal Data to provide the Services and comply with Contractor's rights and obligations under the Agreement and any applicable Statement of Work. The Agreement and any applicable Statement of Work comprise Client's complete instructions to Contractor regarding the processing of Personal Data. Any additional or alternate instructions must be agreed between the parties in writing, including the costs (if any) associated with complying with such instructions. Contractor is not responsible for determining if Client's instructions are compliant with applicable law, however, if Contractor is of the opinion that a Client instruction infringes applicable Privacy Laws, Contractor shall notify Client as soon as reasonably practicable and shall not be required to comply with such infringing instruction.
10.4 Disclosures. Contractor may only disclose the Personal Data to third parties for the purpose of: (i) complying with Client’s reasonable and lawful instructions; (ii) as required in connection with the Services and as permitted by the Agreement and any applicable Statement of Work; and/or (ii) as required to comply with Privacy Laws, or an order of any court, tribunal, regulator or government agency with competent jurisdiction to which Contractor is subject, provided that Contractor will (to the extent permitted by law) inform the Client in advance of any disclosure of Personal Data and will reasonably co-operate with Client to limit the scope of such disclosure to what is legally required. 10.5 Demonstrating Compliance. Contractor shall, upon reasonable prior written request from Client (such request not to be made more frequently than once in any twelve-month period), provide to Client such information as may be reasonably necessary to demonstrate Contractor’s compliance with its obligations under this Agreement. 10.6 Liability and Costs. Contractor shall not be liable for any claim brought by Client or any third party arising from any action or omission by Contractor or Contractor’s agents to the extent such action or omission was directed by Client or expressly and affirmatively approved or ratified by Client.
11 DATA RETENTION
11.1 Client’s Intellectual Property and Confidential Information. All Client Intellectual Property and Client Confidential Information (to include Client Intellectual Property or Client Confidential Information that is contained or embedded within other documents, files, materials, data, or media) shall be removed from all Contractor controlled systems as soon as it is no longer required to perform Services under this Agreement and held in the Escrow. In addition, pursuant to Section 15.4, the Parties shall provide to each other documents and information that are reasonably necessary to the defense of any third party’s claims arising out of or related to the subject matter of this Agreement.
12 REPRESENTATIONS AND WARRANTIES.
12.1 Representations and Warranties of Client. Client represents and warrants to Contractor as follows: (a) Organization; Power. As of the Effective Date, Client (i) is a government entity in the State of Arizona, duly organized, validly existing and in good standing under the Laws of the State of Arizona, and (ii) has full corporate power to conduct its business as currently conducted and to enter into the Agreement. (b) Authorized Agreement. This Agreement has been, and each Statement of Work will be, duly authorized, executed and delivered by Client and constitutes or will constitute, as applicable, a valid and binding agreement of Client, enforceable against Client in accordance with its terms. (c) No Default. Neither the execution and delivery of this Agreement or any Statement of Work by Client, nor the consummation of the transactions contemplated hereby or thereby, shall result in the breach of any term or provision of, or constitute a default under, any charter provision or bylaw, agreement (subject to any applicable consent), order, or law to which Client is a Party or which is otherwise applicable to Client.
12.2 Representations and Warranties of Contractor. Contractor represents and warrants to Client as follows: (a) Organization; Power. As of the Effective Date, Contractor (i) is a corporation, duly organized, validly existing and in good standing under the Laws of the State of Florida, and (ii) has full corporate power to own, lease, license and operate its assets and to conduct its business as currently conducted and to enter into the Agreement. (b) Authorized Agreement. This Agreement has been, and each Statement of Work will be duly authorized, executed and delivered by Contractor and constitutes or will constitute, as applicable, a valid and binding agreement of Contractor, enforceable against Contractor in accordance with its terms. (c) No Default. Neither the execution and delivery of this Agreement or any Statement of Work by Contractor, nor the consummation of the transactions contemplated hereby or thereby, shall result in the breach of any term or provision of, or constitute a default under, any charter provision or bylaw, agreement (subject to any applicable consent), order or law to which Contractor is a Party or that is otherwise applicable to Contractor. 12.3 Additional Warranties of Contractor. Contractor warrants that: (a) The Services shall conform to the terms of the Agreement (including the Statement of Work); (b) Contractor will comply with all applicable laws, rules and regulations in delivering the Services (including without limitation any privacy, data protection and computer laws); (c) The Services shall be performed in a diligent and professional manner consistent with industry best standards; (d) Contractor and its agents possess the necessary qualifications, expertise and skills to perform the Services; (e) Contractor and all individuals handling Client Confidential Information are either U.S. citizens, or U.S. entities that are owned, controlled, and funded entirely by U.S. citizens. (f) Services requiring code review will be sufficiently detailed, comprehensive and sophisticated so as to detect security vulnerabilities in software that should reasonably be discovered given the state of software security at the time the Services are provided; (g) Contractor shall ensure that the Services (including any deliverables) do not contain, introduce or cause any program routine, device, or other undisclosed feature, including, without limitation, a time bomb, virus, software lock, drop-dead device, malicious logic, worm, trojan horse, or trap door, that may delete, disable, deactivate, interfere with or otherwise harm software, data, hardware, equipment or systems, or that is intended to provide access to or produce modifications not authorized by Client or any known and exploitable material security vulnerabilities to affect Client’s systems (collectively, "Disabling Procedures");
(h) If, as a result of Contractor’s services, a Disabling Procedure is discovered by Contractor, Contractor will promptly notify Client and Contractor shall use commercially reasonable efforts and diligently work to eliminate the effects of the Disabling Procedure at Contractor’s expense. Contractor shall not modify or otherwise take corrective action with respect to the Client’s systems except at Client’s request. In all cases, Contractor shall take immediate action to eliminate and remediate the proliferation of the Disabling Procedure and its effects on the Services, the client’s systems, and operating environments. At Client’s request, Contractor will report to Client the nature and status of the Disabling Procedure elimination and remediation efforts; and (i) Contractor shall correct any breach of the above warranties, at its expense, within fourteen (14) days of its receipt of such notice. In the event that Contractor fails to correct the breach within the specified cure period, in addition to any other rights or remedies that may be available to Client at law or in equity, Contractor shall refund all amounts paid by Client pursuant to the applicable Statement of Work for the affected Services. 13 LIMITATION OF LIABILITY.
IN NO EVENT SHALL CONTRACTOR BE HELD LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF SERVICES PROVIDED HEREUNDER INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF USE OF EQUIPMENT, LOSS OF GOODWILL, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), COSTS OF SUBSTITUTE EQUIPMENT, OR OTHER COSTS. If applicable law limits the application of the provisions of this Article 13, Contractor’s liability will be limited to the least extent permissible.
EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 15 AND NON- SOLICITATION OBLIGATIONS UNDER ARTICLE 9, LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID AND PAYABLE TO CONTRACTOR UNDER THE STATEMENT OF WORK(S) TO WHICH THE CLAIM RELATES. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
14 DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, CONTRACTOR MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY OF THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR SUITABILITY OR RESULTS TO BE DERIVED FROM THE USE OF ANY SERVICE, SOFTWARE, HARDWARE, DELIVERABLES, WORK PRODUCT OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT. CLIENT UNDERSTANDS THAT CONTRACTOR’S SERVICES DO NOT CONSTITUTE ANY GUARANTEE OR ASSURANCE THAT THE SECURITY OF CLIENT’S SYSTEMS, NETWORKS AND ASSETS CANNOT BE BREACHED OR ARE NOT AT RISK. CONTRACTOR MAKES NO WARRANTY THAT EACH AND EVERY VULNERABILITY WILL BE DISCOVERED AS PART OF THE SERVICES AND CONTRACTOR SHALL NOT BE LIABLE TO CLIENT SHOULD VULNERABILITIES LATER BE DISCOVERED.
15 INDEMNIFICATION.
“Indemnified Parties” shall mean, (i) in the case of Contractor, Contractor, and each of Contractor’s respective owners, directors, officers, employees, contractors and agents; and (ii) in the case of Client, Client, and each of Client’s respective members, officers, employees, contractors and agents.
15.1 Mutual General Indemnity. Each party agrees to indemnify and hold harmless the other party from (i) any third-party claim or action for personal bodily injuries, including death, or tangible property damage resulting from the indemnifying party’s gross negligence or wilful misconduct; and (ii) breach of this Agreement or the applicable Statement of Work by the indemnifying Party, its respective owners, directors, officers, employees, agents, or contractors. 15.2 Contractor Indemnity. Contractor shall defend, indemnify and hold harmless the Client Indemnified Parties from any damages, costs and liabilities, expenses (including reasonable and actual attorney’s fees) (“Damages”) actually incurred or finally adjudicated as to any third-party claim or action alleging that the Services performed or provided by Contractor and delivered pursuant to the Agreement infringe or misappropriate any third party’s patent, copyright, trade secret, or other intellectual property rights enforceable in the country(ies) in which the Services performed or provided by Contractor for Client or third-party claims resulting from Contractor’s gross negligence or wilful misconduct (“Indemnified Claims”). If an Indemnified Claim under this Section 15.2 occurs, or if Contractor determines that an Indemnified Claim is likely to occur, Contractor shall, at its option: (i) obtain a right for Client to continue using such Services; (ii) modify such Services to make them non-infringing; or (iii) replace such Services with a non- infringing equivalent. If (i), (ii) or (iii) above are not reasonably available, either party may, at its option, terminate the Agreement will refund any pre-paid fees on a pro-rata basis for the allegedly infringing Services that have not been performed or provided. Notwithstanding the foregoing, Contractor shall have no obligation under this Section 15.2 for any claim resulting or arising from: (i) modifications made to the Services that were not performed or performed or provided by or on behalf of Contractor; or (ii) the combination, operation or use by Client, or anyone acting on Client’s behalf, of the Services in connection with a third-party product or service (the combination of which causes the infringement). 15.3 Client Indemnity. Client shall defend, indemnify and hold harmless the Contractor Indemnified Parties from any Damages actually incurred or finally adjudicated as to any third-party claim, action or allegation: (i) that the Client’s data infringes a copyright or misappropriates any trade secrets enforceable in the country(ies) where the Client’s data is accessed, provided to or received by Contractor or was improperly provided to Contractor in violation of Client’s privacy policies or applicable laws (or regulations promulgated thereunder); (ii) asserting that any action undertaken by Contractor in connection with Contractor’ performance under this Agreement violates law or the rights of a third party under any theory of law, including without limitation claims or allegations related to the analysis of any third party’s systems or processes or to the decryption, analysis of, collection or transfer of data to Contractor; (iii) the use by Client or any of the Client Indemnified Parties of Contractor’s reports and deliverables under this agreement; and (iv) arising from a third party’s reliance on a Client Report, any information therein or any other results or output of the Services. Notwithstanding the foregoing or any other provision of this Agreement, Client shall have (i) no indemnification obligations other than defense costs in connection with any third-party claim, action or allegation arising out of or relating to Contractor
Indemnified Parties’ statements or communications to the media or other third-parties; and (ii) no indemnification obligations in connection with any third-party claim, action or allegation arising out of or relating to Contractor Indemnified Parties’ material breach of this Agreement. 15.4 Indemnification Procedures. The Indemnified Party will (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, (ii) allow the indemnifying party to solely control the defence of any claim, suit or proceeding and all negotiations for settlement, and (iii) fully cooperate with the Indemnifying Party by providing information or documents requested by the Indemnifying Party that are reasonably necessary to the defense or settlement of the claim, and, at the Indemnifying Party’s request and expense, assistance in the defense or settlement of the claim. In no event may either party enter into any third-party agreement which would in any manner whatsoever affect the rights of the other party or bind the other party in any manner to such third party, without the prior written consent of the other party. If and to the extent that any documents or information provided to the Indemnified Party would constitute Confidential Information within the meaning of this Agreement, the Indemnified Party agrees that it will take all actions reasonably necessary to maintain the confidentiality of such documents or information, including but not limited to seeking a judicial protective order. This Article 15 states each party’s exclusive remedies for any third-party claim or action, and nothing in the Agreement or elsewhere will obligate either party to provide any greater indemnity to the other. This Article 15 shall survive any expiration or termination of the Agreement.
16 FORCE MAJEURE
16.1 Neither party shall be liable to the other for failure to perform or delay in performance of its obligations under any Statement of Work if and to the extent that such failure or delay is caused by or results from causes beyond its control, including, without limitation, any act (including delay, failure to act, or priority) of the other party or any governmental authority, civil disturbances, fire, acts of God, acts of public enemy, compliance with any regulation, order, or requirement of any governmental body or agency, or inability to obtain transportation or necessary materials in the open market. 16.2 As a condition precedent to any extension of time to perform the Services under this Agreement, the party seeking an extension of time shall, not later than ten (10) days following the occurrence of the event giving rise to such delay, provide the other party written notice of the occurrence and nature of such event.
17 INSURANCE
During the of the Agreement Term, Contractor shall, at its own cost and expense, obtain and maintain in full force and effect, the following minimum insurance coverage: (a) commercial general liability insurance on an occurrence basis with minimum single limit coverage of $2,000,000 per occurrence and $4,000,000 aggregate combined single limit; (b) professional errors and omissions liability insurance with a limit of $2,000,000 per event and $2,000,000 aggregate; Contractor shall name Client as an additional insured to Contractor’s commercial general liability and excess/umbrella insurance and as a loss payee on Contractor’s professional errors and omissions liability insurance and Contractor’s employee fidelity bond/crime insurance, and, if required, shall also name Client’s End Customer. Contractor shall furnish to Client a certificate showing compliance with these insurance requirements within two (5) days of Client’s written request. The certificate will provide that Client will receive ten (10) days’ prior written notice from the insurer of any termination of coverage.
18 GENERAL
18.1 Independent Contractors-No Joint Venture. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other nor may neither bind the other in any way, unless authorized in writing. The Agreement (including the Statements of Work) shall not be construed as constituting either Party as partner, joint venture or fiduciary of the other Party or to create any other form of legal association that would impose liability upon one Party for the act or failure to act of the other Party, or as providing either Party with the right, power or authority (express or implied) to create any duty or obligation of the other Party. 18.2 Entire Agreement, Updates, Amendments and Modifications. The Agreement (including the Statements of Work) constitutes the entire agreement of the Parties with regard to the Services and matters addressed therein, and all prior agreements, letters, proposals, discussions and other documents regarding the Services and the matters addressed in the Agreement (including the Statements of Work) are superseded and merged into the Agreement (including the Statements of Work). Updates, amendments, corrections and modifications to the Agreement including the Statements of Work may not be made orally but shall only be made by a written document signed by both Parties. 18.3 Waiver. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof. 18.4 Severability. If any provision of the Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and such provision shall be deemed to be restated to reflect the Parties’ original intentions as nearly as possible in accordance with applicable Law(s). 18.5 Cooperation in Defense of Claims. The parties agree to provide reasonable cooperation to each other in the event that either party is the subject of a claim, action or allegation regarding this Agreement or a party’s actions taken pursuant to this agreement, including, but not limited to, providing information or documents needed for the defence of such claims, actions or allegation; provided that neither party shall be obligated to incur any expense thereby.
18.6 Counterparts. The Agreement and each Statement of Work may be executed in counterparts. Each such counterpart shall be an original and together shall constitute but one and the same document. The Parties agree that electronic signatures, whether digital or encrypted, a photographic or facsimile copy of the signature evidencing a Party’s execution of the Agreement shall be effective as an original signature and may be used in lieu of the original for any purpose. 18.7 Binding Nature and Assignment. The Agreement will be binding on the Parties and their respective successors and permitted assigns. Neither Party may, or will have the power to, assign the Agreement (or any rights thereunder) by operation of law or otherwise without the prior written consent of the other Party. 18.8 Notices. Notices pursuant to the Agreement will be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (i) actual receipt or (ii) delivery in person, by fax with written confirmation of receipt, or by certified mail return receipt requested. A notice or other communication delivered by email under this Agreement will be deemed to have been received when the recipient, by an email sent to the email address for the sender stated in this Section 19.7 acknowledges having received that email, with an automatic “read receipt” not constituting acknowledgment of an email for purposes of this section 19.7.
Notice to Contractor:
Cyber Ninjas Inc ATTN: Legal Department 5077 Fruitville Rd Suite 109-421 Sarasota, FL 34232
Email: [email protected]
Notice to Client:
Arizona State Senate Attn: Greg Jernigan 1700 W. Washington St. Phoenix, AZ 85007 [email protected]
18.9 No Third-Party Beneficiaries. The Parties do not intend, nor will any Section hereof be interpreted, to create for any third-party beneficiary, rights with respect to either of the Parties, except as otherwise set forth in an applicable Statement of Work.
18.10 Dispute Resolution. The parties shall make good faith efforts to resolve any dispute which may arise under this Agreement in an expedient manner (individually, “Dispute” and collectively “Disputes”). In the event, however, that any Dispute arises, either party may notify the other party of its intent to invoke the Dispute resolution procedure herein set forth by delivering written notice to the other party. In such event, if the parties’ respective representatives are unable to reach agreement on the subject Dispute within five (5) calendar days after delivery of such notice, then each party shall, within five (5) calendar days thereafter, designate a representative and meet at a mutually agreed location to resolve the dispute (“Five-Day Meeting”). 18.10.1 Disputes that are not resolved at the Five-Day Meeting shall be submitted to non-binding mediation, by delivering written notice to the other party. In such event, the subject Dispute shall be resolved by mediation to be conducted in accordance with the rules and procedures of the American Arbitration Association , and mediator and administrative fees shall be shared equally between the parties. 18.10.2 If the dispute is not resolved by mediation, then either party may bring an action in a state or federal court in Maricopa County, Arizona which shall be the exclusive forum for the resolution of any claim or defense arising out of this Agreement. The prevailing party shall be entitled to an award of its reasonable attorneys’ fees and costs incurred in any such action. 18.10.3 Governing Law. All rights and obligations of the Parties relating to the Agreement shall be governed by and construed in accordance with the Laws of the State of Arizona without giving effect to any choice-of-law provision or rule (whether of the State of Arizona or any other jurisdiction) that would cause the application of the Laws of any other jurisdiction. 18.11 Rules of Construction. Interpretation of the Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context requires, (b) the word “including” and words of similar import shall mean “including, without limitation,” (c) the headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation of the Agreement. DocuSign Envelope ID: 1A83BC62-6842-4A76-8E3C-721AC61EEA3D
IN WITNESS WHEREOF, the parties hereto have caused this Master Service Agreement to be effective as of the day, month and year written above.
Accepted by:
Client
By:______
______
Karen Fann, President Title:______
Accepted by:
Contractor: Cyber Ninjas, Inc.
By:______Douglas Logan
Title: CEO & Principal Consultant
EXHIBIT 1. FORM OF STATEMENT OF WORK
This Statement of Work (the “Statement of Work”) is effective as of as of the ______day of ______, 20__ (the “Effective Date”), between Cyber Ninjas, Inc., a Florida Corporation, (the “Contractor”), and the Arizona State Senate (the “Client”), and is deemed to be incorporated into that certain Master Service Agreement dated the 31 day of March, 2021 (the “Master Agreement”) by and between Contractor and Client(collectively, this Statement of Work and the Master Agreement are referred to as the “Agreement”.
1 GENERAL PROVISIONS
1.1 Introduction. The terms and conditions that are specific to this Statement of Work are set forth herein. Any terms and conditions that deviate from or conflict with the Master Agreement are set forth in the “Deviations from Terms of the Master Agreement” Schedule hereto. In the event of a conflict between the provisions of this Statement of Work and the Master Agreement, the provisions of Section 2.4 of the Master Agreement shall control such conflict. 1.2 Services. Contractor will provide to the Client the Services in accordance with the Master Agreement (including the Exhibits thereto) and this Statement of Work (including the Schedules hereto). The scope and composition of the Services and the responsibilities of the Parties with respect to the Services described in this Statement of Work are defined in the Master Agreement, this Statement of Work, [and any Schedules attached hereto].
2 SCOPE & SERVICES DESCRIPTION
3 TECHNICAL METHODOLOGY
4 DELIVERABLE MATERIALS
5 COMPLETION CRITERIA
6 FEES / TERMS OF PAYMENT
The charges for the Services are: $______to be paid as follows:
[$______upon execution of the Agreement and $______upon completion of the Services]. Invoicing and terms of payment shall be as provided in Article 5 of the Agreement.
7 TERM/PROJECT SCHEDULE
8 SIGNATURE & ACKNOWLEDGEMENT
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS STATEMENT OF WORK, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE PARTIES AGREE THAT THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES RELATING TO THIS SUBJECT SHALL CONSIST OF 1) THIS STATEMENT OF WORK, 2) ITS SCHEDULES, AND 3) THE AGREEMENT (INCLUDING THE EXHIBITS THERETO), INCLUDING THOSE AMENDMENTS MADE EFFECTIVE BY THE PARTIES IN THE FUTURE. THIS STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES SUPERSEDES ALL PROPOSALS OR OTHER PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT DESCRIBED HEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Statement of Work to be effective as of the day, month and year written above.
Accepted by:
Client:
By:______
______
Title:______
Accepted by:
Contractor: Cyber Ninjas, Inc.
By:______
Douglas Logan
Title: CEO & Principal Consultant
EXHIBIT 2. BACKGROUND SCREENING MEASURES
The pre-employment background investigations include the following search components for U.S. employees and the equivalent if international employees:
• 10-Year Criminal History Search – Statewide and/or County Level • 10-Year Criminal History Search – U.S. Federal Level • Social Security Number Validation • Restricted Parties List
Criminal History – State-wide or County:
Criminal records are researched in the applicant’s residential jurisdictions for the past seven years. records are researched through State-wide repositories, county/superior courts and/or lower/district/municipal courts. Generally, a State-wide criminal record search will be made in states where a central repository is accessible. Alternately, a county criminal record search will be conducted and may be supplemented by an additional search of lower, district or municipal court records. These searches generally reveal warrants, pending cases, and felony and misdemeanor convictions. If investigation and/or information provided by the applicant indicate use of an aka/alias, additional searches by that name must be conducted.
Criminal History – Federal:
Federal criminal records are researched through the U.S. District Court in the applicant’s federal jurisdiction for the past seven years. This search generally reveals warrants, pending cases and convictions based on federal law, which are distinct from state and county violations. The search will include any AKAs/aliases provided or developed through investigation.
Social Security Trace:
This search reveals all names and addresses historically associated with the applicant’s provided number, along with the date and state of issue. The search also verifies if the number is currently valid and logical or associated with a deceased entity. This search may also reveal the use of multiple social security numbers, AKAs/aliases, and additional employment information that can then be used to determine the parameters of other aspects of the background investigation.
Compliance Database or Blacklist Check:
This search shall include all of the specified major sanctioning bodies (UN, OFAC, European Union, Bank of England), law enforcement agencies, regulatory enforcement agencies, non-regulatory agencies, and high-profile persons (to include wanted persons, and persons who have previously breached US export regulation or violated World Bank procurement procedures including without limitation the lists specified below:
A search shall be made of multiple National and International restriction lists, including the Office of Foreign Asset Control (OFAC) Specially Designated Nationals (SDN), Palestinian Legislative Council (PLC), Defense Trade Controls (DTC) Debarred Parties, U.S. Bureau of Industry and Security Denied Persons List, U.S. Bureau of Industry and Security Denied Entities List, U.S. Bureau of Industry and Security Unverified Entities List, FBI Most Wanted Terrorists List, FBI Top Ten Most Wanted Lists, FBI Seeking Information, FBI Seeking Information on Terrorism, FBI Parental Kidnappings, FBI Crime Alerts, FBI Kidnappings and Missing Persons, FBI Televised Sexual Predators, FBI Fugitives – Crimes Against Children, FBI Fugitives – Cyber Crimes, FBI Fugitives – Violent Crimes: Murders, FBI Fugitives – Additional Violent Crimes, FBI Fugitives – Criminal Enterprise Investigations, FBI Fugitives – Domestic Terrorism, FBI Fugitives – White Collar Crimes, DEA Most Wanted Fugitives, DEA Major International Fugitives, U.S. Marshals Service 15 Most Wanted, U.S. Secret Service Most Wanted Fugitives, U.S. Air Force Office of Special Investigations Most Wanted Fugitives, U.S. Naval Criminal Investigative Services (NCIS) Most Wanted Fugitives, U.S. Immigration and Customs Enforcement (ICE) Most Wanted Fugitives, U.S. Immigration & Customs Enforcement Wanted Fugitive Criminal Aliens, U.S. Immigration & Customs Enforcement Most Wanted Human Smugglers, U.S. Postal Inspection Service Most Wanted, Bureau of Alcohol, Tobacco, and Firearms (ATF) Most Wanted, Politically Exposed Persons List, Foreign Agent Registrations List, United Nations Consolidation Sanctions List, Bank of England Financial Sanctions List, World Bank List of Ineligible Firms, Interpol Most Wanted List, European Union Terrorist List, OSFI Canada List of Financial Sanctions, Royal Canadian Mounted Police Most Wanted, Australia Department of Foreign Affairs and Trade List, Russian Federal Fugitives, Scotland Yard’s Most Wanted, and the World’s Most Wanted Fugitives.
EXHIBIT 3. FORM OF NONDISCLOSURE SUBCONTRACT
Nondisclosure Agreement
1. I am participating in one or more projects for Cyber Ninjas, Inc., as part of its audit of the 2020 general election in Maricopa County, performed as a contractor for the Arizona State Senate (the “Audit”). 2. In connection with the foregoing, I have or will be receiving information concerning the Audit, including but not limited to ballots or images of ballots (whether in their original, duplicated, spoiled, or another form), tally sheets, audit plans and strategies, reports, software, data (including without limitation data obtained from voting machines or other election equipment), trade secrets, operational plans, know how, lists, or information derived therefrom (collectively, the “Confidential Information”). 3. In consideration for receiving the Confidential Information and my participation in the project(s), I agree that unless I am authorized in writing by Cyber Ninjas, Inc. and the Arizona State Senate, I will not disclose any Confidential Information to any person who is not conducting the Audit. If I am required by law or court order to disclose any Confidential Information to any third party, I will immediately notify Cyber Ninjas, Inc. and the Arizona State Senate. 4. Furthermore, I agree that during the course of the audit to refrain from making any public statements, social media posts, or similar public disclosures about the audit or its findings until such a time as the results from the audit are made public or unless those statements are approved in writing from Cyber Ninjas, Inc and the Arizona Senate. 5. I agree never to remove and never to transmit any Confidential Information from the secure site that the Arizona State Senate provides for the Audit; except as required for my official audit duties and approved by both Cyber Ninjas, Inc and the Arizona Senate. 6. I further understand that all materials or information I view, read, examine, or assemble during the course of my work on the Audit, whether or not I participate in the construction of such materials or information, have never been and shall never be my own intellectual property. 7. I agree that the obligations provided herein are necessary and reasonable in order to protect the Audit and its agents and affiliates. I understand that an actual or imminent failure to abide by these policies could result in the immediate termination of my work on the Audit, injunctive relief against me, and other legal consequences (including claims for consequential and punitive damages) where appropriate.
Signature: ______Printed Name: ______Date: ______
Exhibi t 9
Exhibit 9
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KAREN FANN, v. ARIZONA DEMOCRATIC PARTY, ertr o Sae n Snt adt iio Kn ent (olciey te “Senate the (collectively, Bennett Ken liaison audit Senate and State of Secretary an Snt Jdcay omte Cara Wre Ptre, and Petersen, Warren Chairman Committee Judiciary Senate Fann, 12(b)(6). Procedure Civil of Rule Arizona to pursuant Dismiss to Motion and Injunction Preliminary and Order Restraining Temporary Defendants
and
Attorneys for President Karen Fann, Senate Judiciary Committee Chairman Warren Petersen Kory Langhofer, Ariz. Bar No. 024722 Thomas 649 North Fourth Avenue, First Floor former Arizona Secretary of State State of Secretary Arizona former Pursuant to the Court’s order of April 23, 2021, Defendants Senate PresDefendantsSenate2021, 23, April of orderCourt’s the toPursuant [email protected] Phoenix, Arizona 85003 IN THE SUPERIOR SUPERIOR IN THE [email protected] ”) respectfully submit this consolidated Response to the Plaintiffs’ the to Response consolidated this submit respectfully ”) Basile, Ariz. Bar. No. 031150 (602) 382 (602) Defendants et al. , Bennett IN AND FOR THE COUNTY MARICOPAOF COUNTY THE FOR IN AND Defendants P laintiffs
- 4078
Arizona Senate , , . . COURT FOR THE STATE OF ARIZONA
et al., Ken
,
(Assigned to the Hon. Hon. the to (Assigned COMBINED AND RESPONSE TO PLAINTIFFS’ PRELIMINARY INJUNCTION INJUNCTION PRELIMINARY MOTION FOR TEMPORARY
RESTRAINING ORDER OR SENATE DEFENDANTS’ DEFENDANTS’ SENATE No.
CV2021 MOTION TO DISMISS
Christopher Coury -
006646 former Arizona Arizona former ident Karen Karen ident Motion for Motion
) )
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designed to preserve, a private civil action, D and [Speech the which independence the upon infringes prosecution see also Eastland v. U. S. Servicemen’s Fund and compelled di compelled and debate” privilege, the session, legislative ongoing the of pendency the w command categorical this If 6. § 2 9, 9, 1 (05 (“[T]he (2005) 13 ¶ 195, 193, can and should summarily dismiss it on those grounds. Court the action, of cause redressable no presents case this Because individuals. specific partisan actors; absent is reasons. independent atleastfive fails for interdict to Plaintiffs these by campaign partisan overtly the vein, that case concernsonly voters individual of privacy the respects and be will County S the sphere,’ legislative ‘legitimate their within acting “are legislators when that (holding 15 ¶¶ 136, 130, Ariz. 206 Fields, v. Comm’n Redistricting Indep. Arizona [plaintiff] has [plaintiff] agents subject to any civil process during the session of the legislature.” be not “shall Legislature the of members matter, initial an As Constitution. Arizona the peech or Debate Clause serves as an absolute bar to
First T , even if the Plaintiffs did have standing, the Senate Defendants Senate the standing, have did Plaintiffs the if even Second, are immune from suit pursuant to two related but d but related two to pursuant suit from immune are he Arizona Senate’s audit of the November 3, 2020 general election in Maricopa in election general 2020 3, November the of audit Senate’s Arizona he , the Complaint proffers only a catalogue of diffuse political grievances by by grievances political diffuse of catalogue a only proffers Complaint the ,
standing conducted in a fair, transparent manner that complies with applicable laws applicable with complies that manner transparent fair, a in conducted sclosures see id.
what
to sue.”). sue.”). to § 7, further insulates members of the legislature from civil liability strictures governthe audit and any cognizable legal claim predicated on particularized injuries to in
connection with connection
threshold
I NTRODUCTION ere not enough to preclude Plaintiffs’ claims during claims Plaintiffs’ preclude to enough not ere
whether for an injunction or damages issue that must first be resolved is whether whether is resolved be first must that issue ; that is not the issue in this case this in issue the not is that ; 2 , 421 U.S. 491, 503 (1975) (“Just as a criminal
the discharge of their official duties. duties. official their of discharge the . . .
Consti
See civil liability” (quotation omitted) who
istinct protections conferred by by conferred protections istinct Bennett v. Brownlow polices adherence to the tution’s separate tution’s
A RIZ .
C the Senate’s audit audit Senate’s the ONST bt] lue is Clause ebate] - 16 (App. 2003) (App. 16 . .
“speech and “speech . art. IV, Pt. Rather, this Rather, , 211 Ariz.
and their and , creates m. In See ) ;
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improper legislative body is conducting an investigation evaluating materials obtained by an an by obtained materials evaluating legislative lawful and valid indisputably investigation an conducting is body legislative superintend the people’s elected representatives in their work. work. their in representatives elected people’s the superintend substantial a entail inevitably would claims Plaintiffs’ the of adjudication Court’s (the “ (the Manual Procedures Elections the of portions cited The event. any in Defendants Senate 1978). Cir. Exxon (D.C. Corp. 590 v. 582, Federal F.2d Trade Commission, 589 injury.” injury.” have rendered their own claims time — commence to scheduled 1 undertaking a post- officials legislative to directives its extends interpret to purports it statutes the or EPM the and agents their onto Ariz. at 140, ¶ 30. transpose legislators individual representatives in the course of the latter’s authorized by assertable privileges adde (emphasis litigation.” the defend to their tasks from legislative attention and energy, time, their divert to Members forces and distraction a I. (1975)).
EPM , even if the Senate Defendants we Defendants Senate the if even Third, , the provisions of law upon which Plaintiffs rely have no application to the the to application no have rely Plaintiffs which upon law of provisions the Fourth, “To gain standing to bring an action, a plaintiff must allege a distinct and palpable and distinct a allege must plaintiff a action, an bring to standing gain “To Let Alone a “Particularized” Harm Fifth Plaintiffs Lack Standing Becau See generally 1
, 192 Ariz. 65, 69 (1998) (citing (citing (1998) 69 65, Ariz. 192 Hull, v. Sears
An “injury” sufficient to sustain standing is not merely any intangible or inchoate incursion into the sovereign affairs of a coequal branch. When, as here, a a here, as When, branch. coequal a of affairs sovereign the into incursion ”) govern the govern ”) , in to choosing delay their litigation until onslaught the very day the audit was
election audit in the courseofalegislative investigation.
Bennett v.
responsibilities of county elections officials; nothing in the text of of text the in nothing officials; elections county of responsibilities to the considerable detriment of the Defendants the of detriment considerable the to
Napolitano, 206 Ariz. 520, 525, ¶ 22 (2003) (“Although we - barred. A
se They se Have Not AllegedActual Injury, They Any subpoena, it is not the province of the judiciary to judiciary the of province the not is it subpoena, RGUMENT 3
re not not re
legislative legislative categorically
Warth v. Seldin v. Warth ). ute, muiis and immunities Further, d)).
functions. functions. See
A immune from suit, the the suit, from immune RIZ , 422 U.S. 490, 501 501 490, U.S. 422 , .
C — See Fields, 206 ONST
the Plaintiffs Plaintiffs the
. art. III; art. .
and
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that cannot cannot that MarkBrnovich to 2 Ariz. 58, ¶ 11 (2020) standing rubric governs mandamus actions, instructive.”). law case federal are not bound by federal jurisprudence on the matter of its behalf, own her or his on claims the assert to standing individual independent case, this in done has Party Democratic Arizona the as standing, associational of principle the invokes organization Arizona v. English imminent.’” or ‘actual and particularized’ and ‘concrete is that litigate, a person must show, first and foremost, ‘an invasion of a l to standing with party a as qualify “[t]o Rather, citizen. any by asserted impact adverse 19) “e ae eonzd ht an that recognized have (“We (1996) Bro v. 751 Local Union Workers Commercial & Food Exhibit 1. Hobbs right.”); right.”); that that disten and of the EPM is facially inapplicable to the Legislature and its agents, the Court should has required plaintiffs claiming an organizational an claiming plaintiffs required has dismissal of this action in its entirety. the necessitates alone failure That audit. the to attributable is that individual particular suffered the requisite
members any — A. Indeed, Indeed, The Plaintiffs’ claims can be distilled as follows: notwiths Here, the Complaint struggles unsuccessfully to articulate any tangible harm to any to harm tangible anyarticulate unsuccessfullyto struggles Complaint the Here, failure to comply with them injures the Plaintiffs. the injures them with comply to failure Summers v. Earth Island Inst. Island Earth v. Summers which
d d
sustain even an investigation by that office. See that by investigation an even sustain the text the hn . its . . . when A Defendant’s Alleged Non the are
Secretaryo
largely tony eea hs emd the deemed has General Attorney
, 520 U.S. 43, 64 (1997) (internal citations omitted). When an an When omitted). citations (internal (1997) 64 43, U.S. 520 , of these provisions, transpose them onto the Senate’s audit, and find and audit, Senate’s the onto them transpose provisions, these of , which this case is not is case this , which harm”)
the to identical members
see f State Katie Hobbs, dat Hobbs, Katie State f The Supreme Court has suggested that a more “relaxed” more a that suggested has Court Supreme The Compl. ¶¶ 1, 77, at least one of its members must have must members its of one least at 77, 1, ¶¶ Compl. ol ohrie have otherwise would 2
, 555 U.S. 555 , association
- allegations in allegations Compliance with the Law is Not an “Injury” . . s 4 ee
Ariz. Pub. Integrity Alliance v. Fontes, 250
488, 499 (2009) (noting that “the Court “the that (noting (2009) 499 488,
standing has standing e
standing, we have previously found , 517 U.S. 544, 553 553 544, U.S. 517 Inc. , Group, wn d accusations the Apr
to identify members who have have who members identify to standing Complaint 21, attached hereto as hereto attached 21,20 23, .
Letter of Attorney General Attorney of Letter
to bring suit on behalf of of behalf on suit bring to
tanding that the plain text text plain the that tanding egally protected interest’ rznn fr Official for Arizonans
obd y Secretary by lobbed to sue in their own own their in sue to — as “s peculation ” see
United distor t
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u rte a eeaie givne ih h pltcl rcs ta ti cut i not ‘is court this that process political vindicating.’”). for responsible the with grievance generalized a rather but concrete a not “is party political one for advantage “arbitrary” ( any to “injury” legal any identifiable individual. evince not do they contentions, these of truth the assuming cognizable because violation of a right to have the have to right a of violation standi of tenet foundational a is It sense. 3 and that the majority of the audit observers are registered Republicans, Republicans, registered are observers audit the of majority the that and techniques,” verification or comparison signature in trained not are comparison signature perform will who workers Audit “the that 46(A), ¶ Compl. equipment,” election ba the for custody of chain documented and “secure no allegedly is there grouse conjoining any supposed act of misconduct to any particular voter. For example, Plaintiffs to pursuant procedures of an actual injury. the Court to enjoin the very circumstances that the Plaintiffs themselves induced. audit the boycott to party Democratic the of members vindication of value interests.’” (internal citations omitted)). the for ‘vehicle a as simply it use will who bystanders,’ ‘concerned of hands the in placed o cut s n ijr i fc. Ad t osqety os o so standing.”); show not does consequently it And fact.’ Hollingsworth v. in Perry, 570 U.S. 693, 707 (2013) (admonishing that “standing ‘is not ‘injury an as count not abstract and generalized harm to a citizen’s interest in the proper application of the law does v. , Adams 141 S. Ct. 493, 498 (2020) (“[A] grievance that amounts to nothing more than an
Democratic Party committee’s Government This proposition quickly dissipates under the weight of the case law case the of weight the under dissipates quickly proposition This s eosrtd n h bif ie b Cbr ijs te Plain the Ninjas, Cyber by filed brief the in demonstrated As A reviewA of the Complaint reveals that it is largely alitany of gripes concerning the
ted by acting differently, cannot alone satisfy the requirements” requirements” the satisfy alone cannot differently, acting by viola ted has
Lujan v. Defs. of Wildlife ‘assertion ‘assertion of a right to a particular kind of
See which the audit is being conducted. Absent is any factual nexus factual any is Absent conducted. being is audit the which
Mecinas v. Hobbs
allegation that ballot ordering statute conferred “unfair” and Government
ng that “an that ng , 504 U.S. 555, – 575
5 act in accordance with accordance in act
, 468 F. Supp. 3d 1186, 1204 (D. Ariz. 2020)
injury —
and now disingenuously urge this urge disingenuously now and
amounting only to the alleged the to only amounting
Government
injury 76 (1992);
law
to establish to tiffs instructed all all instructed tiffs
[is] not judicially judicially not [is] id.
see also conduct, which
and common common and ¶ 53. ¶
standing, llots and and llots id. 3 Carney
Even ¶ 50, ¶ to to be
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not delineate any articulable harm to any to harm articulable any delineate not injury. legal discernible any dissatisfaction their Plaintiffs apparently feel politically frustrated with interests. the audit procedures, or but they cannot extrude rights from individual’s identified any of dispose not does it remedy, may legislation future that infrastructure election County’s Maricopa in vulnerabilities or flaws errors, illuminate may yields it facts the while process; legislative the inform to returns, and the vot the and returns, be not would issue at ballot usatv itrss f priua idvda. individual. particular a of interests substantive alleged “procedural” harms cannot engender standing unless they impair some tangible and elicit reasonable elicit b have not should ballot given 4 noting that Cyber Ninjas’ current contract with the Senate does not, in fact, contemplate fact, any in signature review or not, verification does Senate the with contract current Ninjas’ Cyber that noting t ervto o a rcdrl ih wtot oe ocee neet ht s fetd y the deprivation— by affected is that interest concrete some without right procedural a of deprivation activities that ofthe audit arenot currently plan. andhaveneverbeenpart makes an errant signature verification determination verification signature errant an makes individual to vote in future elections. For example, suppose that a member of the audit team aiiy f n peiul cutd alt, or ballots, counted previously any of validity the affect cannot and not will results audit’s The certified. and canvassed tallied, been have election general 2020 3, November the of returns The anyone. of interests or rights he audit’s dispositions of ballots or other election materials election other or ballots of dispositions audit’s he
As discussed above, the Complaint’s captious parsing of the audit procedures does procedures audit the of parsing captious Complaint’s the above, discussed As B. In In short, the audit is merely a vehicle for obtaining and analyzing factual information At bo lhuh hs oin sue te rt o te opan’ allegatio Complaint’s the of truth the assumes motion this Although
ttom, ttom, vn f h Cmlit dqaey lee a “nuy” t s Not Is It “Injury,” an Alleged Adequately Particularized Complaint the If Even a procedural right procedural a
political Plaintiffs’ theory er who caster who it wouldremainonthe rolls asaqualified elector.
criticism, but it has no import for any voter’s legal rights. The The rights. legal voter’s any for import no has it but criticism,
—
een counted. counted. een and could not be not could and
— vacuo in
activities is fundamentally is infirm for fundamentally the simple reason that
individual. Indeed, only a single sentence in the the in sentence single a only Indeed, individual. is insufficient to create . . . . . create to insufficient is 6 .
What then What The Plaintiffs
—
eemn te ea eiiiiy f any of eligibility legal the determine See removed from the previously certified certified previously the from removed 4
and, on that basis, concludes that a that concludes basis, that on and, Summers ? Such a mistake a Such ?
are asking this Court to enjoin
have no effect on the legal the on effect no have
55 .. a U.S. 555 ,
standing.”). Here,
w ould certainly ould t 496 (“[A] (“[A] 496 t s i bears it ns,
such
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and individual way.’” personal a in plaintiff the affect ‘must it ‘particularized,’ be to injury an “[f]or explained, injury to themselves.”). The terms are not interchangeable; as the Supreme Court has has Court Supreme the as interchangeable; not are terms The themselves.”). to injury particularized a show petitioners that require we standing, establish (“To (2005) 17 ¶ 196, be plaintiff’s standing. This point is important; an injury sufficient for standing must not only be placed into the hands of unknown, untrained agents of the Private the of agents untrained unknown, of hands the into placed be a person engaged in newspaper, radio, television or reportorial work.” A.R.S. § 16 official’s duties,” and as well permits non to refers it extent the To protections guaranteed by statute and the EPM.” hc aes ht Panif D wl sfe irprbe am . bcue h private the because . . information of its members . harm irreparable suffer will ADP “Plaintiff that avers which ballots did harm”). requisite the me one least at name must organization “the standing, associational Energy of Dept. U.S. v. Energy individual. such any identifies nowhere Complaint the voter’s particular a revealed somehow has audit the circumstances, be— of any given voter. The privacy of a voter’s secret ballot will not be should be too obvious to bear repeating, but it is investi exemption Either “injury” an approximating anything adumbrates pleading entire “ concrete, ” opoie b te audit the by compromised gators Preliminar More fundamentally, even if the auditors’ review of voter rolls and anonymous voted ces o uh aa y a atoie gvrmn ofca i te cp o the of scope the in official government authorized “an by data such to access inflict inflict some conceivable “injury,” the harm is too diffuse to sustain any particular of government officials. government of it also must be “particularized.” “particularized.” be must also it y, this statement is facially insufficient to sustain a cognizable “injury.” cognizable a sustain to insufficient facially is statement this ily, —
n crany hi ageae import aggregate their certainly and Spokeo, Inc. v. Robins
— - including including how they voted in the 2020 General Election as “for election purposes and for news gathering purposes by public voter registration information, existing law existing information, registration voter public . n i, hog sm ipasbe oselto of constellation implausible some through if, And , 860 F. Supp. 2d 44, 48 (D.D.C. 2012) (to claim claim (to 2012) (D.D.C. 48 44, 2d Supp. F. 860 , To the extent it refers to voted ballots voted to refers it extent the To
, 136 S. Ct. 1540, 1548 (2016). Tha 7
not possible to identify the electoral choices , 211 Ariz. 193, 193, Ariz. 211 Brownlow, v. Bennett See
See —
nopse te authorized the encompasses Californians for Renewable for Californians
— —
mber who has sufferedhas who mber candidate preferences, candidate o wit, to
and simply could not Auditors without the without Auditors
aarp 77, paragraph , , t is, a harm this expressly -1 — 68(F).
point will
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Napolitano, 206 Ariz. 520, – 526 individual establish to sufficient not is . . . dispersed “widely is that including the District of Ari of District the including courts case, after case In electors. qualified of votes the diluting thereby canvass, the in included be would ballots unlawful or fraudulent that risk the increased derelictions these to or with, comply safeguar to procedural various failure enforce, adequately officials’ elections challenged election 2020 the with ago. A spate of lawsuits brought by President Trump’s campaign and its allies in connection found in the theory their political compatriots championed in injury must be “personal, individual, distinct, and differentiated”). differentiated”). and distinct, individual, “personal, be must injury Admin. Safety Traffic e proportionate extent; accordingly, no particular plaintiff had standing. standing. had plaintiff particular no accordingly, extent; proportionate e sam the precisely to voter lawful every impact would effect dilutive resulting the ballots, illegal of that even assuming that elections officials’ actions or omissions would facilitate the casting e, e.g. See, omitted)). citation (internal generally” people with common in allege plaintiff a when standing no is there 3d 247 (D. Vt. 2020)); Vt. (D. 247 3d (quoting disadvantaged.’”) specifically is voter single no mathematical impact on the final tally and thus a on the proportional effect of ‘has every vote, but illegally, counted otherwise or mistake,’ through person wrong the by in mailed 2020), case. this in plaintiff named any to Ariz. Dec. 9, 2020) (“This conceptualization of vote dilution necessarily is no harm that is “particularized” to any specific individual impacts every Maricopa County voter in the same unitary and un Perhaps the most resounding refutation of the Plaintiffs’ claim of standing can be can standing of claim Plaintiffs’ the of refutation resounding most the Perhaps Thus, if the if Thus, vacated as moot , , ont . e’ Cmowat o Pennsylvania of Commonwealth Sec’y v. Bognet
auditors’ , 489 F.3d 1279, 1292 (D.C. Cir. (D.C. 1292 1279, F.3d 489 , , 2021 WL 1520777 (U.S. Apr. 19, 2021) (“‘A vote cast by fraud Bowyer v. Ducey v. Bowyer zona review of voter rolls and every voted ballot is an “injury,” it “injury,” an is ballot voted every and rolls voter of review 27, ¶ 28 (2003); — disposed of the claims on standing grounds, reasoning grounds, standing on claims the of disposed See generally See
, s “merely that he suffers in some indefinite way way indefinite some in suffers he that “merely s -- 8 F. Supp. 3d Supp. F.
see also s rsrbd y tt lw agig that arguing law, state by prescribed ds
Lujan
Pub. Citizen, Inc. v. Nat’l Highway , 504 U.S. at 574 (explaining that that (explaining 574 at U.S. 504 , 2007) (to be “particularized,” an “particularized,” be (to 2007)
, 2020 WL 7238261, at *6 (D. (D. *6 at 7238261, WL 2020 --, Martel v. Con v. Martel
, 980 F.3d 336, 356 (3d Cir. Cir. (3d 356 336, F.3d 980 , — courts nationwide just months
state actors counting ballots
differentiated way. There
standing.” standing.” — , 487 F. Supp. Supp. F. 487 dos, and certainly not Bennett v. Bennett See, e.g. See, — or ,
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or any ballot’s validity; it is devoid of any capacity whatsoever to derogate or dilute or derogate to whatsoever capacity any of devoid is it validity; ballot’s any or above, the audit doe Plaintiffs’ putative “injury” in this case is even more attenuated and tenuous. As discussed the Indeed, laws”). enacted’ duly its ‘enforce to ability State’s the in interest cognizable Island Rhode Cause standing.”); III Article for necessary fact in injury particularized and concrete a not is cast being ballots invalid or unlawful of result a thereby all an [for Plan the that is . . . case Cegavske v. Paher law election state of violation in protected rights and interests of any individual. nuy f aig their having of injury uios rve o vtr ol ad alt, t os o rdud n n “particularized” any manner to any specific in voter. Accordingly, Plaintiffs lack standing to pursue their claims. redound not does it ballots, and rolls voter the of from review gleaned auditors’ be could “harm” legal of semblance some if even And voter. given any on effect injurious tangible no have would them to adhere to failure alleged any audit, the to applied EPM the in outlined schemes procedural the if Even injuries. redressable (M.D.N.C. (M.D.N.C. Oct. 14, 2020) (“[T]he voter.”); Nevada any by raised “Arizona courts nonetheless impose a ‘rigorous’ standing ‘rigorous’ a impose nonetheless courts “Arizona important issues that “are likely to recur,” recur,” to likely “are that issues important may be waived “only in exceptional circumstances,” Providers for Persons w In sum, the Plaintiffs cannot al cannot Plaintiffs the sum, In C. lhuh tnig s o a uidcinl rrqiie n hs tt’ judiciary, state’s this in prerequisite jurisdictional a not is standing Although amn te a rgtu vtr by voters rightful as them harming
There i , 457 F. Supp. 3d 919, 926 (D. Nev. 2020) (“[T]he theory of Plaintiffs’ Plaintiffs’ of theory (“[T]he 2020) Nev. (D. 926 919, 3d Supp. F. 457 ,
s not (and could not) , 141 S. Ct. 206 (2020) 206 Ct. S. 141 , s No
votes diluted ith ith Disabilities v. State “Exceptional”
Moore v. Circosta v. Moore
— notion that a - mail election] will lead to an increase in increase an to lead will election] mail is not a concrete harm.” harm.” concrete a not is u t otnil election ostensible to due chemize political grievances and partisan cavils into cavils partisan and grievances political chemize
determine the
Reason — id. see also see 9
diluting
(holding that political party entities “lack a “lack entities party political that (holding
, 223 Ariz. 6, 13, ¶ 16 (App. 2009). Standing
single a criterion that this unprecedented audit unprecedented this that criterion a , 1:20CV911, 2020 WL 6063332, at *14 *14 at 6063332, WL 2020 1:20CV911, , That Could Justify Sears, 192 Ariz. at 71, ¶ 25, to resolve
Republican Nat’l Comm. v. Common Common v. Comm. Nat’l Republican
person’s oe Bt litfs purported Plaintiffs’ But vote.their
legality
requirement.” requirement.”
(internal citation omitted)); omitted)); citation (internal of any voter’s qualifications vote will be less valuable as fraud
a b conceivably be may Waiv Arizona Ass’n of Ass’n Arizona ing
illegal votes votes illegal
Standing the the
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of the constitutional text. clarity the from detract not does law case interpreting of dearth The Period. session. in is unqualified and pellucid: members of the Legislature may not be sued while the Legislature the compelled disclosure of testimonial or documentary evidence, in this case. case. this in evidence, documentary or testimonial of disclosure compelled the Senat the “rare” these of one countenances dispute this about nothing and standing, of waiver a permitting s required nor proper.”); proper.”); nor required neither is construction judicial clear, is language constitutional the (“[I]f (1992) 383 380, their their claims. of nature the to endemic are deficiencies standing the above, outlined As suit. colorable a be would otherwise what brought plaintiff “wrong” the where case a not is this Further, powers concerns that an adjudication of the merits would precipitate. session.” session.” legislature the of session the and peace, the of breach and felony, case: “Members of the legislature shall be privileged from arrest in all cases e II. omitted)) (citation standing.” find to reason a not is standing, have would one no sue, to standing no have respondents if that urely does not satisfy. Research reveals fewer than a handful of published appellate cases
dispensations, A. Two conceptually related but textually distinct constitutional protections confer on confer protections constitutional distinct textually but related conceptually Two Duties Disclosures Compelled O h Snt Dfnat Ad hi Aet Ae mue rm ii Process, Civil from Immune Are Agents Their And Defendants Senate The ne sentence in the Arizona Constitution can Constitution Arizona the in sentence ne
e Defendants and their agents absolute immunity from liability, as well as from from as well as liability, from immunity absolute agents their and Defendants e A RIZ Cf. h Cnttto Islts eiltr Fo Cvl rcs Wie the While Process Legislature Is Civil From Legislators Insulates Constitution The .
C Clapper v. Amnesty Int’l USA ONST
, 206 Ariz. at 527, ¶ 31, particularly given given particularly 31, ¶ 527, at Ariz. 206 Bennett, . . art. IV, Pt. 2 § 6 [emphasis added]. [emphasis 6 § 2 Pt. IV, art. et . iy f Tucson of City v. Jett See genera i , nor for fifteen days next before the commencement of each each of commencement the before next days fifteen for nor , n Session , , and . lly they shall not be subject to any civil process during during process civil any to subject be not shall they Civil Liability in Connection with Their Official Their with Connection in Liability Civil
Perini Land & Dev. Co. v. Pima County 10
, 568 U.S. 398, 420 (2013) (“The assumption
, 180 Ariz. 115, 119 (1994) (“If the the (“If (1994) 119 115, Ariz. 180 , —
and should and This command is categorical, is command This
— be dispositive of this of dispositive be See the separation of of separation the infra xcept treason,
Section III. , 170 Ariz.
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from and “connotes the State’s authority to compel compliance with the law”); the with compliance compel to authority State’s the “connotes and that concluding and judge” constitution, or court a from or of, out issuing something is shows, Idaho’s etymology its as “‘process,’ in provision identical nearly interpreting in sources dictionary and historical on (drawing 2012) (Idaho 630 627, P.3d 301 Comm’n, D evidence under the auspices of a court order ( c any but summons, and complaint serving on a non (ad County Sacramento For & In Court Superior kinds.” all of actions civil cover to construed been have exemptions Similar state that in written.”) as provision the language [constitutional] compulsory process in any form or summons writ, esp. to appear or respond in court”). ongoing legislative session evidence testimonial or ICTIO dressing
civil Further, the capacious term “civil process” encompasses not just the service of a of service the just not encompasses process” “civil term capacious the Further, provision parallel a with connection in explained Court Supreme California the As hs te li tx o Atce V Pr 2 Scin pelds h eeto of exertion the precludes 6 Section 2, Part IV, Article of text plain the Thus, NARY
ihu qaiiain s o h kn o sbet atr f h lawsuit. the of matter subject or kind the to as qualification process without ’s ’s lawsuit seeking injunction against “secret meetings” by legislators who were were who legislators by meetings” “secret against injunction seeking lawsuit
constitution, the plain language ofthe immunity grant “creates anexempti dfnn “rcs” s poedns n n ato o poeuin” r “a or prosecution,” or action any in “proceedings as “process” (defining - legislative commission). commission). legislative
— is clear and unambiguous, we generally must follow the text of of text the follow must generally we unambiguous, and clear is from any of the Senate Defendants during the pendency of the the of pendency the during Defendants Senate the of any from . .
— to to include commands for the production of documentary ompulsory device to elicit testimonial or documentary or testimonial elicit to device ompulsory
11
e.g.
App. (Ct. 857 855, Rptr. Cal. 79 , , a subpoena).
See
Hart v. Idaho State Tax B LACK Harmer v. Harmer ’ S 1969) L AW on
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legislative legislators protect not does it than civil process immunity; while it is not temporally limited to only the legislative session, narrower and broader simultaneously is It law. common the to lineage its traces privilege Constitution) U.S. the of 6 Section I, Article from duties. and Reified in Article acts IV, Part 2, Section 7 official of the Arizona Constitution legislators’ (which in turn is derived of out arising claims for immunity general more a ople dslsr o dcmns r nomto rfetn “te eieaie and deliberative “‘the proposed to reflecting relating processes’ communicative information or documents of disclosure compelled the against privilege evidentiary an also but liability civil from shield a just not embraces to all actions taken taken actions all to Arizona, including Clause exists for state legislators acting in a legislative capacity. i embodied that to similar immunity legislative law common that an unacceptably narrow view.”). theconfine . . also (quoting (quoting liability.” civil or prosecution criminal to bar absolute acting within their ‘legitimate legislative sphere,’ the Speech or Debate Clause serve speaks only of ‘Speech or Debate,’ but the Court the but Debate,’ or ‘Speech of only speaks Bogan v. Scott The protectioncivilTheprocess from B. Like the immunity from civil process during sess ion Gravel
capacity. protection of the Speech or Debate Clause to words spoken in debate would be would debatein spoken words to Clause Debate or protectionSpeech theof 1. h Sec ad eae lue muie Al cin Undertaken Actions All Immunizes Pursuant to a Legislator’s Clause Debate and Speech The
, 408 U.S.
-
have preserved this common law immunity in state constitutions”) state in immunity law common this preserved have ‘ Harris, 523 U.S. 44, 54 , 408 U.S. 606, 617 (1972) (“ (1972) 617 606, U.S. 408 States, United v. Gravel See in the sphere of legitimate legislative activity. legislative legitimate of sphere the in h Imnt ad t Cgae rvlg Apy o l Claims All to Apply Privilege Cognate Its and Immunity The rdctd n eiltv Fntos Rgrls o te hoy of Theory the of Relief or Remedies Sought Regardless Functions, Legislative on Predicated at 624) (adding that “[t]he United States Supreme Court has held
or their agents from acts undertaken in a personal or non or personal a in undertaken acts from agents their or
As distilled by the Court of Appeals, when legislators “are
during the legislativethesessionduring
Official Duties, Including This Audit
(1998) 12
legislation or other matters placed within within placed matters other or legislation (“ ’ Absolute legislative immunity attaches s consistent approach has been that to that been has approach consistent s ti so this ,
- 15 ¶¶ 136, at Ariz. 206 Fields, , the Speech and Debate Clause Clause Debate and , the Speech - ald sec ad debate” and “speech called
Additionally, most states, ’” n the Speech or Debate or Speech the n ).
is complemented by by complemented is The Clause The
s as an ; see 16 - .
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
9, 0 (95 (odn, n otx o a ato fr nucie relief, injunctive for action an of context in (holding, (1975) 503 491, (an immunity the then functions, official legislator’s the is dispute the of locus the as long As sued. is legislator a which in capacity the or sought, relief of type the claim, the of nature or civil, evidentiary process that interferes criminal, with their ‘legitimate legislative activity’”). from protection enjoy Congress, of members like legislators, “state action, 5 also see privilege”); evidentiary and testimonial a as functions also doctrine immunity legislative legislature.” the of jurisdiction the relief”); . . . to applicable equally “is immunity legislative that explaining individual rules, ethics and attorney of promulgation official their with their connection in capacities both in relief injunctive and declaratory for claims from 725- added]); [emphasis litigation” the defend to tasks legislative their from attention and energy, time, their divert legislative immunity did not shield the Board of Regents, as an entity, from an action to to action an from entity, an as Regents, of Board the shield not did immunity legislative that held Court Supreme the which in (2020), 28 ¶ 127, Ariz. 250 Regents, of Bd. Ariz. v. suits.”); all from immunity in them cloaks but damages, monetary from legislators insulate just Inc. v. relief”); injunctive or declaratory seeking and capacities ch suit a from them protecting absence ofanyclaims formonetarydamages). holding of
d its subsidiary privilege) attach. attach. privilege) subsidiary its d 6 73 18) hlig ht eiltv imnt poetd urm cut justices court supreme protected immunity legislative that (holding (1980) 733 26,
Saccone
Importantly, Importantly, the Spee Plaintiffs presumably will rely heavily on a single paragraph in whether for an injunction or damages , 206 Ariz. at 139 at Ariz. 206 Fields, Scott v. Taylor v. Scott Puente Arizona v. Arpaio v. Arizona Puente Consumers Union , 894 F. Supp. 2d 573, 582 (M.D. Pa. 2012) (“Legislative
, 446 U.S. 719, 719, U.S. 446 U.S., the of Union Consumers v. Va. of Court Supreme , 405 F.3d 1251, 1254 (11th Cir. 2005) (noting that “[t]he square square “[t]he that (noting 2005) Cir. (11th 1254 1251, F.3d 405 ,
ch and Debate Clause’s protections are not contingent upon the ” is that “state legislator defendants enjoy legislative immunity legn ter cin tkn n hi ofca legislative official their in taken actions their allenging - 41 (recognizing legislative privilege despite the apparent the despite privilege legislative (recognizing 41 , 314 F.R.D. 664, 669 (D. Ariz. 2016) (explaining that that (explaining 2016) Ariz. (D. 669 664, F.R.D. 314 , , 206 Ariz. at 137, ¶¶ 17 ¶¶ 137, at Ariz. 206 Fields, See
Eastland v. U. S. Servicemen’s Fund Servicemen’s S. U. v. Eastland 13
, creates a distraction and forces 5
actions seeking declaratory or injunctive or declaratory seeking actions
Freedom from Religion Found., Religion from Freedom
- 18 (noting that “[t]he that (noting 18 State ex rel. Brnovich
immunity
a rvt civil private “a
Members to
, 421 U.S. U.S. 421 ,
does not
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
the activities insulated from judicial interdiction by the Speech and Debate Clause. Clause. Debate and Speech the Eastland by interdiction judicial from insulated activities the plai process compulsory through so do to and investigate to power “[t]he 016840, Minute Entry dated Feb. 25, 2021, at 9. Brnovich to to be confronted by such ‘questioning’ reform possible introducing to eye an proposals.” with duties, election county performing of in competence and officials systems tabulation vote existing of efficacy and accuracy obtained were materials audit the which through subpoenas the that finding express Thomason’s Judge by foreclosed is of the Speech or Debate Clause are absolute.” Eastland undertaken by legislators in the course of their official duties; in this realm, “the prohibitions claims feature not did in case that against though, Importantly, payments. illegal alleged recover the legislative session, session, legislative the notwithstanding that damages claims were not at issue. duties. their of course the in acting legislators against claims all encompasses immunity the that holding jurisprudence federal of decades with conflict in squarely law Arizona place would it damages, monetary for claims involving disputes were ( Legislature the of act an by authorized expressly was Board the against action General’s Brnovich legislation could be had”). It is undisputed that the Legislature may properly enact enact properly may Legislature the that undisputed is It had”). be could legislation which on subject a “concern may that anything to applies and indispensable” and “broad USA, LLP to challenge the wisdom of Congress , A.R.S. § 35 § A.R.S. , i.e. to be be to Animating Judge Thomason’s conclusion was the settledconstitutionaltheThomason’sconclusion thatAnimatingwaspreceptJudge Any contention that the audit is not in furtherance of a furtheranceof in not is audit the contentionthat Any De and Speech the of protections the short, In , 421 U.S. at 504; is entirely inapplicable to the the to inapplicable entirely is court cited approvingly cited court , 140 S. Ct. 2019, 2031 (2020) (holding that the legislative investigatory power is iiul eiltr, o hm h Sec ad eae lue attaches Clause Debate and Speech the whom to legislators, dividual construed as confining all claims of legislative immunity legislative of claims all confining as construed Maricopa County Maricopa 2.
- 212(A)), a critical distinction absent from this case. Finally, if Finally, case. this from absent distinction critical a 212(A)),
on Within the Scope of Scope the Within Function Legislative Legitimate a Is Audit The the Speech and Debate Clause Debate and Speech the see see also id.
A RIZ
advanced the valid legislative purpose of “evaluat[ing] the “evaluat[ing] of purpose legislative valid the advanced
Mrcp Cut Spro Cut o CV2020 No. Court Superior County Maricopa , Fann v. . —
C validated the applicability of the legislative privilege, legislative the of applicability the validated ONST ’
use of its investigative authority [by [by courts] at 511 (
more . art. IV, pt. 2, § 6. In addition, the Attorney Attorney the addition, In 6. § 2, pt. IV, art. . 14
specific
“
The Clause was written to prevent the need
and to forbid invocation of judicial power
immunity f immunity
ae lue nops al actions all encompass Clause bate , 421 U.S. at501 U.S. , 421
bona fide bona Indeed, Indeed,
rom .
”); civil process during process civil or Fields— legislative activity activity legislative . . Trump v. Mazars privilege nly falls within” falls nly a case the case a Brnovich only to — and -
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
Lawmaker Kills Election Bill, Threatens to Torpedo Session Torpedo to Threatens Bill, Election Kills Lawmaker and results will not vote to adjourn she that declared has Senator one least at Indeed, elicit”). to calculated was investigation which legislation could be had and on one was subject “the if proper are acts investigatory that (finding (1927) 177 135, U.S. act”); to power have traditionally legislators where 341 U.S. 367, 379 (1951) (legislative privilege applie complete immunity for the Members for provides issuance of this subpoena”); Clause Debate or Speech “the therefore and Congress” of task legitimate a of re is here issue at investigation particular “[t]he that (concluding se the administration of existing laws” and “surveys of defects” in existing programs), it is USA Mazars is infrastructure the Speech a Speech the into subsumed thus and branch, legislative the of functioning the to integral is information demands i “legislative” election C elect the of abuses against guard and elections of purity the secure to “laws enact must Legislature the that directive express Constitution’s Arizona the by authority incidental to its general lawmaking power, but it is imbued with particular salience relating legislation to the of and conduct elections. administration Arizona Not only is t 2 2021, 22, ONST within the scope of the Speech and Debate Clause. Clause. Debate and Speech the of scope the within Because amassing data relating to the accuracy and efficacy of the existing electoral Accordingly, any argument by the Plaintiffs that the audit is something other than other something is audit the that Plaintiffs the by argument any Accordingly, . . - art. §12. VII, bill-
ces o at ad aa te rcs o asmln ad yteiig such synthesizing and assembling of process the data; and facts to access vial at available noprt is idns no t dlbrtos deliberations. its into findings its incorporate nd Debate Clause. Clause. Debate nd , 140 S. Ct. at 2031 (a valid legislative purpose “encompasses inquiries into inquiries “encompasses purpose legislative valid (a 2031 at Ct. S. 140 , - threatens caatr ludr. nomd n efcie amkn necessarily lawmaking effective and Informed flounders. character n — as Judge Thomason found Thomason Judge as
to
sinedie - https://azcapitoltimes.com/news/2021/04/22/gop - torpedo
See until the body has had an opportunityan untilhad has toappraisethebody theaudit session/.
would be materially aided by the information which the
, 206 Ariz. at 139, ¶ 24 (holding that legislative legislative that (holding 24 ¶ 139, at Ariz. 206 Fields,
15 —
manifestly a valid legislative purpose, legislative valid a manifestly s when legislators are “acting in a field see also see
, 421 U.S. at 505, 507 507 505, at U.S. 421 Eastland, See , McGrain v. Daugherty v. McGrain A See
lated to and in furtherance furtherance in and to lated RIZ
. Julia Shumway, Shumway, Julia
ive franchise.” franchise.” ive C Tenney v. Brandhove APITOL APITOL - lawmaker T IMES - , Apr. Apr. , A , 273 273 , GOP kills- RIZ per see his , .
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
acts); legislative finalizing” and developing in utilized processes’ communicative and deliberative the of part integral ‘an are that “actions covers privilege Member conduct committee hearings.”); helpi for immunity enjoy should aides senatorial . . . too, So, resolution. illegal the to leading action House and committee to respect with immune be should Member and aide legislative of auspices the under duties official their of course the in acting vendors or employees to extends office legislative a in invested immunity or privilege a that recognized have respo sundry the execute 709 F.2d 524 (9th Cir. 1983)). legislative federal the (quoting communications” [such] to applies privilege activity, legislative legitimate a is investigation” or legislation potential to pertinent information “‘[o]btaining because that (commenting 670 at F.R.D. explained: Appeals of Court Arizona the As 2006). Cir. (D.C. 1 F.3d 459 Johnson, Bernice Eddie of performed by the Member himself.”), ’ Members protects 789 F.2d 923, 926 (D.C. Cir. 1986) (“It is equally clear that the [Speech and Debate] clause Because the 90 elected members of the Legislature cannot by themselves feasibly themselves by cannot Legislature the of members elected 90 the Because C. legislative privilege. legislative by protected are acts these themselves, commissioners the by performed if extent the IRC engaged [consultants] to perform acts that would be privileged invoked by the legislator or by an aide on his or her behalf. ol b piiee lgsaie odc i proal promd y the by performed personally if legislator. conduct legislative privileged be that would legislator that by retained contractors independent of acts the inquiry We decide that a legislator may invoke the
authority. authority. and Independent Contractors The Legislative Immunities Extend in Equal Force to Authorized Agents
The privilege is held solely by the legislator and may onl may and legislator the by solely held is privilege The
ie o assat isfr s hi cnut ol b poetd if protected be would conduct their as insofar assistants or aides See, e.g. See, sblte etie i efcie oenne cut consistently courts governance, effective in entailed nsibilities
, , 408 U.S. 606, 621 (1972) (“[B]oth (“[B]oth (1972) 621 606, Gravel v.UnitedU.S. States 408 ,
abrogated in part on other grounds
Browning v. Clerk, U.S. House of Representatives 16
legislative legislative privilege to shield from Miller v. Transamerv.Miller
Therefore, to the une Arizona, Puente in in Fields v. Office ican Press, Inc. Press, ican y be y ng a ng 314 , ,
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
A immunity, legislative of guarantees dual Arizona’s the by extent same the to protected l crafting of function lawmaking quintessential the facilitate to legislators Arizona elected of behalf the on and behest the at Cyber Ninjas— Cyber preparing and submitting an official report [emphasis added]). staff, Committee the from members, Speech and Deba and Speech the by barred was case this in complaint the that us to plain is (“[I]t (1973) 312 306, U.S. contractor”); independent an as consultant same that retaining and assert, and authorize see also Fields also see tasks.” legislative inter their given one, as treated be may aide his and privilege the applying of purposes it.”). claim does and may Congressman the that extent the to 1983) (“Because Congressmen mus and reports of memb of meetings preparation at reports of presentation investigations, briefings, comments, answers, questions, of their duties relating to the impeachment process, including speeches, discussion, debate, ab enjoy aides and consultants investigators, counsel, its and legislature the of “members Clause, Debate and Speech Arizona’s to pursuant that, 30; ¶ 140, at Ariz. 206 Fields, to legislative immunity.); immunity.); legislative to respect with Counsel” Chief the and Members the between distinction no draw (“We 507 RIZ .
C h Snt’ atoie aet ad v and agents authorized Senate’s The In short, “[f]or purposes of construing the Speech or Debate Clause, a [legislator] [legislator] a Clause, Debate or Speech the construing of purposes “[f]or short, In ONST . art. IV, pt. 2, §§ 6, 7. , 206 Ariz. at 140, ¶ 28 (observing that there is “ is there that (observing 28 ¶ 140, at Ariz. 206 , are engaged in the collection, review and analysis of data and information and data of analysis and review collection, the in engaged are te Clause insofar as it sought relief from the Congressmen the from relief sought it as insofar Clause te Steiger v. Superior Court for Maricopa County Maricopa for Court Superior v. Steiger
Cyber Ninjas to assert, a claim of Miller v. TransamericanInc.Press,v.Miller see also see egislative proposals. It follows ineluctably that they are they that ineluctably follows It proposals. egislative , between placing a consultant temporarily temporarily consultant a placing between , t delegate responsibility, aides may invoke the privilege For thi from the consultant, or from the investigator the from or consultant, the from
1988 Ariz. Op. Atty. Gen. 16 (1988) (concluding (1988) 16 Gen. Atty. Op. Ariz. 1988 s reason, President Fann and Chairman Petersen 17 ers of the legislature”); the of ers
endors twined duties in performing complex complex performing in duties twined — solute immunity for the performance performance the for immunity solute legislative legislative
to include Secretary Bennett and and Bennett Secretary include to
, 709 F.2d 524, 530 (9th Cir. Cir. (9th 530 524, F.2d 709 ,
no practical difference, for difference, practical no
privilege pursuant to both , 112 Ariz. 1, 3 (1975) 3 1, Ariz. 112 , Doe v. McMillan v. Doe Eastland ‘ , 421 U.S. at U.S. 421 , ’ . . . . . staff ’ on - Committee , 412 412 , ” for ” see ;
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
immunities applicable to this case, case, this to applicable immunities innately entwined with political dimensions as to render them unamenable to judicial judicial to unamenable resolution. Recognizing that such cases “involve decisions them that the constitution commits render to as dimensions political with entwined innately resolution judicialresolution according to to discoverable and manageable susceptible standards,” not issues raise and government of branches political the of one Article IV, Part 2, III, impels that it decline to engage the Plaintiffs’ specious claims. specious Plaintiffs’ the engage to itdecline that III, impels political questions.” questions.” political Napolitano v. State of III. course ofits authorized legislative functions. also Corrie v. Caterpillar, Inc. Caterpillar, v. Corrie also rcsl ti rao, nte dvso o ti Cut eety ocue ta claims that concluded recently Court this of division another reason, this precisely their acts.” acts.” their for responsible are officers public all whom to people the from or itself branch that within Cor [it]. correct to branches coordinate the of one to license give not or violated “does functions internal has its of conduct government the in obligation of statutory ostensible an neglected branch one that assertion An b dismissal. coequal necessitates those for respect executive, or legislature the of domain internal the It is founded in a recognition that when adjudication of a claim will entail i omitted). citation (internal question”) that decide to jurisdiction matter subject lack we question, branch], can never be made in this court,’” and concluding that “if a case presents a political b are, which or political, nature their ‘[q]uestions,in thatobservation Marshall’s Justice Chief in expression foundfirst doctrine
vn f h Cut id nihr h cvl rcs nr peh n Dbt Clause Debate and Speech nor process civil the neither finds Court the if Even The Judicial Management of the Audit Would Violate the Separatio In In short re are certain disputes that, while nominally presenting questions of law, are so so are law, of questions presenting nominally while that, disputes certain are re Renck v. Superior Court of Maricopa Cnty. Maricopa of Court Superior v. Renck , the political question doctrine is a self Sections 6 and 7 with respect to
Kromko v. Ariz. Bd. of Regents of Bd. Ariz. v. Kromko , 213 Ariz. 482, 485, ¶ 7 (2006), “courts refrain from addressing addressing from refrain “courts (2006), 7 ¶ 485, 482, Ariz. 213 , , 503 F.3d 974, 980 (9th Cir. 2007) Cir. (9th 980 974, F.3d 503 , our te osiuin n lw, umte t [another to submitted laws, and constitution the y powers of separation
18
documents and materials prepared in the , 216 Ariz. 190, 192, ¶ 12 (2007) 12 ¶ 192, 190, Ariz. 216 , - imposed imposed limitation on judicial power.
, 66 Ariz. 320, 326 (1947). For For (1947). 326 320, Ariz. 66 , , regime
Forty
(“The political question question political (“The A see - rection comes from from comes rection Seventh Legislature mpingement n of Powers RIZ .
C ONST ranches ranches ; . . into into
art. see
to to
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
that elected body the conduct of its own affairs. affairs. own its of conduct the body elected that 431, CV2019 rdcin te or add ht ay uh eurmn wud lal ivle an involve Congress” clearly of operations would internal the requirement into intrusion such judicial unacceptable “any that added court the production, congressional assurances of confidentiality protections as a precondition to the documents’ susceptible to judicial management. management. judicial to susceptible pursu materials and documents authority. sovereign Court Superior v. its Buell generally of attribute innate an are powers investigatory Senate’s 6 Law, Meeting Open Arizona’s with compliance Legislature’s the concerning Id. subpoenas to the Federal Trade Commission, explaining: or requests via information secret trade confidential parties’ private obtain to committees the reaffirmed court the There, instructive. is 1978), Cir. (D.C. 582 eaain f oes eurd y u Cnttto poiis s rm nevnn in intervening from us prohibits the Constitution our by required powers of separation th in interference judicial prohibits Constitution state the of 3 “Article that context impeachment in (holding
at 588. Rebuffing the plaintiff’s demands that the court should require the FTC to obtain legislative et seq., on principle engraft easily onto this case. The case. this onto easily engraft principle question political the of contours The otnig ai t mnae n nocd ea o te legitimate the on be of highly questionable constitutionality. delay enforced could seriously impede an the vital investigatory powers of Congress and would mandate investigations of Congress whenever to these inquiries touched on trade secrets a on basis court this For continuing powers. investigatory legitimate legislature’s the of The The D.C. Circuit’s analysis in A copy of the ruling is attached hereto as - 014945, Minute Entry dated Oct. 30, 2020 (Mikitish, J.). material that the FTC proposed to divulge . . . was fully within the scope present a non-
process.”). e legitimate functions of the other branches of our government . . . The The . . . government our of branches other the of functions legitimate e
justiciable justiciable political question because the Constitution entrusts to
ant to a valid subpoena, its use of such information is not is information such of use its subpoena, valid a to ant , 96 Ariz. 62, 66 (1964). When, as here, it has obtained obtained has it here, as When, (1964). 66 62, Ariz. 96 , Exxon Corp. v.F.2d Federal Trade589 Commission, See
Mecham v. Gordon v. Mecham 19
Exhibit
See Puente v. Arizona State Legislature State Arizona v. Puente See
2 . , 156 Ariz. 297, 302 (1988) (1988) 302 297, Ariz. 156 ,
6
right
of congressional of
n ta “ that and
A.R.S. § 38 § A.R.S. See the the - ,
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
elected Legislature to provisions applied by their plain terms deals with this information s through their authorized agents. agents. authorized their through constitutionally is officials, acting Senate, Arizona the county of members elected the of discretion plenary the to to committed directives procedural EPM’s the incorporate whether include to conducted, is audit the which in manner The requires the judiciary to refrain from meddling in the workings of the legislative process.”). Tucson of City v. Winkle renders conclusive upon us the legislative determination within its sphere of govern branch executive the of diktats not), do they Club Estates, Inc. Estates, Club functions.”); legislative enjoin to power no have (“Courts 46)(19 (1914); See when Fitzgerald v. rules.”);legislativeproceduralcodify thatstatutes of true is same The whetheritshallobserve, enforce, waive,suspend, disregard or rulesproc itsownof discretion and control complete ‘has alone, legislature, (“The 2005) (N.H. 746 744, 736, interfere with the action of the legislative department.” department.” legislative the of action the with interfere its of course the in enactments.’” (internal citation omitted)). legislature the by with complied been have statutes procedural or rules operating internal whether determine not will court ‘this statutes, procedural relevant eparation of powers demands that the courts do little to interfere with how the Congress Congress the how with interfere to little do courts the that demands powers of eparation -014945; CV2019 Puente,
legislation It is no answer to point selectively at excerpts from the EPM. Even if those those if Even EPM. the from excerpts at selectively point to answer no is It y days of statehood, the judiciary has recognized that “courts cannot “courts that recognized has judiciary the statehood, of days early the Since see also see , 798 N.W.2d 436, 440 (Wis. 2011) (“As the court has explained explained has court the (“As 2011) (Wis. 440 436, N.W.2d 798 ,
, 65 Ariz. 139, 144 144 139, Ariz. 65 County, Maricopa of Court Superior v. Phoenix of City was challenged based on allegations that the legislature di , 7 Ariz. App. 408, 418 (1968) (“The doctrine of separation of power power of separation of doctrine (“The (1968) 418 408, App. Ariz. 7 ,
investigate investigate the critical affairs and electoral infrastructure of this state , 190 Ariz. 413, 415 (1997) (“We have long held that Article III Article that held long have (“We (1997) 415 413, Ariz. 190 , .” Id. cf.
at 590 Hughes v. Speaker of the N.H. House of Reps. of House N.H. the of Speaker v. Hughes
to to this , 593. , 593.
20
audit (and, as discussed below
are impotent to impotent are
State v. Osborn v. State
limit
and to what extent it will it extent what to and
Rubi v. 49’er Country 49’er v. Rubi the prerogative of the the of prerogative the State ex rel. Ozanne Ozanne rel. ex State , 16 Ariz. 247, 249 249 247, Ariz. 16 , d not follow the
in in Section IV, , 876 A.2d A.2d 876 , ment.”); edure.’ .
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
say t amenable to judicial vindication and that the sources of law they cite can be enforced against easily embraces the Senate’s auditors. individuals and companies undertaking “reportorial work,” 7 IV. the law whenever they they whenever law the electronic pollbook vendors) license license that necessarily must duties” extend to authorized agents official’s and vendors the of scope the in official government “authorized any by access information. registration Court No. CV2020 and rejected precisely this argument. to audit somehow violates A.R.S. § 16 the that theory peculiar the entertaining officials,” even Finally, agents. authorized “election their extension, exempts categorically statute the Further, election. certified and canvassed previously a in ballots of review and transfer intergovernmental 16- § A.R.S. eti eeto pronl o ae son ah eoe adig alt o election or ballots handling before oath sworn equipment. a take to personnel election certain auditors arenot hese Defendants, their litigation project still fails for a simple reason: the cited provisions cited the reason: simple a for fails still project litigation their Defendants, hese
civilly enforce a criminal proscription. absolutely is, litfs noe ... 16 § A.R.S. invoke Plaintiffs First, Even indulging the Plaintiffs’ insistence that they have pleaded cognizable claims cognizable pleaded have they that insistence Plaintiffs’ the indulging Even Inapplicable to the Audit h Ctd Statu Cited The Indeed, if it if Indeed, Third, the Complaint invokes Chapter 10, Section 10, Chapter invokes Complaint the Third, in harvesting ballot on prohibition criminal the reference Plaintiffs the Second, See 1005(H). 1005(H). nothing about the Legislature or this audit.
presently Compl. -
did not, did 016840, Minute Entry dated Feb. 25,12 n.17 2021,. at See enlist the assistance of third party vendors and contractors and vendors party third of assistance the enlist ¶ 62. A review of that provision, however, reveals that it applies it that reveals however, provision, that of review A 62. ¶ See undertaking signature verifications in any event. tes and EPM Provisions Are Facially Irrelevant and and Irrelevant Facially Are Provisions EPM and tes Compl.
the Secretary of State and county officials would be be would officials county and State of Secretary the
in election administration election in Compl.
¶ 60. ¶ - 1005(H), these Plaintiffs have Maricopa County v. Fann ¶ 57. But not only does the statute expressly permit expressly statute the does only not But 57. ¶ (Further, (Further,
But this statutethis But Indeed, Judge Thomason Indeed, has Judge Thomason already considered 21
-
6() wih oen cnieta voter confidential governs which 168(F),
the the record will ultimately establish that the
. . sible application to the to application plausible no has I.A of the EPM, which requires requires which EPM, the of I.A
, id. an elastic classification that , Maricopa County Superior
no 7 — private right of action but also by private ). , and, by by and, , id. violating ( e.g. —a —a ,
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
o plausibl no And there. there. words them into interpolating by only audit the to applied be can they Legislature, the against enforceable ballots. and equipment voting for protocols security certain prescr ibe which EPM, the of V.E Section 8, Chapter 2 (94. vn f h ctd statutes cited the if Even (1994). 529 powers. investigatory sovereign Legislature constraining the exercise of its inherent and constitutiona - 16 ¶¶ 58, Ariz. 250 Fontes, 552. what they plainly state.” elections. of administration actual the governing personnel county and Office State’s of Secretary the to directives of compendium a nature its by is EPM branch. legislative the of member a encompass ever could EPM, the and 16 processing andtabulation of ballots. its By terms, own it hasno to activities at the “Central Counting Place” mai of candidate nomination petitions. post each county’s elections director or comparable officer. officer. comparable or director elections county’s each elections of charge in “officer the and directed are they that apparent become it does however, namely, “The County Recorder” omitted Conspicuously 64. ¶ Compl. trained.” properly are verification signature the performing - The Senate is investigating the “officer[s] in charge of charge in “officer[s] the investigating is Senate The election audit ofpreviously canvassedreturns bythe legislative branch.
ial, h Cmlit eie vros xeps rm hpe 4 Scin I and III Section 4, Chapter from excerpts various recites Complaint the Finally, Plaintiffs the Fourth, In In sum, courts will not “construe the words of a statute to mean something other than rm h crfly rpe quote cropped carefully the from e construction of the term the of construction e — to wit, “the Legislature” and “post and Legislature” “the wit, to
Canon Sch. Dist. No. 50 v. W.E.S. Const. Co., Inc. See cite
17. Its provisions are not, and never could be, edicts to the to edicts be, could never and not, are provisions Its 17. Compl.
— EPM Chapter 6, Chapter EPM and the con Disingenuous copy editing is doing all the work.
,” a title derived from the election code that denotes denotes that code election the from derived title a ,” ¶¶
n EM rvsos ee prtv authorities operative were provisions EPM and 66-
“officer in charge of elections of charge in “officer hwvr ae h sbet f hs command this of subject the are however, , 22 0 Ol uo rveig hs provisions, these reviewing upon Only 70.
text text in which it applies
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26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
si First, the audit is an enormously complex and expensive logistical undertaking of unreasonable delay). finding avoid to insufficient” be may . . . limits time [statutory] the with complying deadline); nominat inexcusable. and audit unreasonable was dilatoriness Plaintiffs’ the circumstances, these Under day filing. their of very the until abeyance in commenced claims their April, early held least at deliberately since theories Plaintiffs legal their underlying facts the of notice on being Ninjas’ CEO) likewise has b ( claims their to relevant somehow deem apparently day. next very the parrots) “con ostensible her itemizing v. Mahoney v. it. vindicate to acting in timeliness her or his and right,” her or his of knowledge 6 558, ¶ prejudice to the opposing party. V. ek bfr te litfs ntae ti action this initiated Plaintiffs the before weeks 31 March on auditor an of selection Senate’s the announced publicly Fann gnificant manpower. manpower. gnificant
The prejudice exacted by the Plaintiffs’ tarrying manifests itself in several forms. several in itself manifests tarrying Plaintiffs’ the by exacted prejudice The B. h uraoalns o a ea i gue piaiy y eeec t “party’s to reference by primarily gauged is delay a of unreasonableness The A. h fmla eeet o lce ae 1 uraoal dly n () resulting (2) and delay unreasonable (1) are laches of elements familiar The The ion petition challenge barred by laches despite being filed before the statutory statutory the before filed being despite laches by barred challenge petition ion (2009). Both facets are easily sati facetsareeasily Both (2009).
ui v Thomas v. Lubin Plaintiffs’ Claims Are Barred by Laches , 174 Ariz. 456, 459 (1 459 456, Ariz. 174 , — Plaintiffs’ Delay Has Prejudiced the Defendants Plaintiffs’ Delay Was Unreasonable See presumably to maximize either the disruptive and/or public relations impact relations public and/or disruptive the either maximize to presumably
McClung v. Bennett v. McClung
The Senate The een in the public domain for weeks. , 213 Ariz. 496, 498, ¶ 10 (2006) (cautioning that “merely “merely that (cautioning (2006) 10 ¶ 498, 496, Ariz. 213 , See en rgrig h Adt (hc te opan largely Complaint the (which Audit” the regarding cerns
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Compl. 993). As the Complaint itself acknowledges, President acknowledges, itself Complaint the As 993).
has reserved the audit site for a period of only twenty only of period a for site audit the reserved has , 225 Ariz. 154, 157, ¶ 15 (2010) (finding appeal in in appeal (finding (2010) 15 ¶ 157, 154, Ariz. 225 ,
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¶¶ 29- , 219 Ariz. 556, — 30. Despite that that requires some three some Mathieu
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
Plaintiffs the delay the pursuit of their candidates”). the and evaluate the relevant constitutional law, rule justice.on Plaintiffs’ hearing, motion, and advise the a Secretary hold briefing, of obtain to . administration . . days 18 the only with Court the prejudiced left delay Plaintiffs’ has delay “Plaintiffs’ that reasoning case, Court. the and Party Libertarian parties other the burden unreasonable without decided Plaintiffs acted expeditiously, their request for injunctive relief could have been briefed and deadlines.’” printing ballot through ‘steamroll to court the compelling importance,” public great of matters in making decision of quality the to is cases election in delay by real caused prejudice “[t]he generally, more and Finally, session. regular its prolong to Legislature the litigation so and legislation, reform election above, several Senators are awaiting the results of the audit to inform their deliberations on Se space. physical and labor for expenses additional substantial beget will litigation this by occasioned activities audit of suspension or disruption any so and days, its entirety and with prejudice, pursuant to Ariz. R. Civ. P. 12(b)(6) P. Civ. R. Ariz. to pursuant prejudice, with and entirety its TemporaryRestraining PreliminaryOrderand InjunctiontheComplaint (2)dismissinand for Motion Plaintiffs’ deny (1) should Court the reasons, foregoing the For cannot benefit from their from benefit cannot , 189 F. Supp. 3d 920, 924 (D. Ariz. 2016) (findin 2016) Ariz. (D. 924 920, 3d Supp. F. 189 ,
The tenets of equity that undergird the laches doctrine laches the undergird that equity of tenets The claims. Lubin ooao v Burns v. Sotomayor
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1 Ai. t 9, 10 ¶ 497, at Ariz. 213 C
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24 - . . . delicate legal issues in order to meet the the meet to order in issues legal delicate . . . induced delays in the audit in turn may force force may turn in audit the in delays induced
, 199 Ariz. 81, 83, ¶ 9 (2000), “by “by (2000), 9 ¶ 83, 81, Ariz. 199 ,
ctto omitted) (citation
. g prejudice in election in prejudice g cond, as noted as cond, e Arizona See counsel that counsel . Had the the Had .
26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
RESPECTFULLY SUBMITTED
By:
this this
25 Committee Warren Judiciary Senate Fann, Senate, the of Chairman Arizona Petersen, Karen the of Defendants President for Attorneys State Phoenix, Arizona 85003 649 North Fourth Avenue, First Floor Thomas Basile Kory Langhofer STATECRAFT PLLC STATECRAFT /s/
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Thomas Basile Ken Bennett day of April
, and and ,
former Arizona Secretary of of Secretary Arizona former
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26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 28 27 9 8 7 6 5 4 3 2 1
[email protected] Phoenix, Arizona 85004 2800 COPPERSMITH Kristen
D. Thomas Basile By: Inc. Ninjas, Cyber for Attorney [email protected] Phoenix, AZ 85012 3443 N.CentralAve.Ste1009 KOLODIN LAW GROUP PLLC Alexander Kolodi Attorneys for Plaintiffs [email protected] [email protected] Tempe, Arizona 85253 401 West Baseline Road, Suite 205 BARTON MENDEZ SOTO PLLC Jacqueline Soto Mendez James E. Barton II [email protected] [email protected] Roopali a Notice ofElectronic Filing to the following registrants: TurboCourt document to the Clerk’s Office using the TurboCourt System for filing and transmittal of
Andrew Gaona _/s/Thomas Basile North I hereby certify that on on that certify I hereby
Yost H.
Desai Central
(034052)
(024295)
(028414) n BROCKELMAN BROCKELMAN PLC
Avenue,
CERTIFICATE OF SERVICE
Suite April 25
1900
1 , 202
, I electronically transmitted the attached attached the transmitted , Ielectronically
Exhibit 1
Exhibit 2 Clerk of the Superior Court *** Electronically Filed *** 11/05/2020 8:00 AM SUPERIOR COURT OF ARIZONA MARICOPA COUNTY
CV 2019-014945 10/30/2020
CLERK OF THE COURT HONORABLE JOSEPH P. MIKITISH A. Walker Deputy
PUENTE, et al. HEATHER HAMEL
v.
ARIZONA STATE LEGISLATURE THOMAS J. BASILE
JUDGE MIKITISH
MINUTE ENTRY
Ruling on Motion to Dismiss
The court has received and reviewed the Defendant Arizona State Legislature’s (the Defendant) Motion to Dismiss filed March 19, 2020; the Plaintiffs Puente, Mijente Support Committee, Jamil Nasar, Jamar Williams, and Jacinta Gonzalez’s (collectively the Plaintiffs) Response thereto filed May 4, 2020; and the Defendant’s Reply filed May 18, 2020. The Court heard argument on the motion on September 1, 2020 and took the matter under advisement. For the reasons stated below, the motion is granted.
Background
Docket Code 926 Form V000A Page 1
SUPERIOR COURT OF ARIZONA MARICOPA COUNTY
CV 2019-014945 10/30/2020
On December 4, 2019, the Plaintiffs filed a complaint seeking declaratory judgment against the Defendant for violating Arizona’s Open Meeting Law. The Plaintiffs asserted that a quorum of five legislative committees would be attending the American Legislative Exchange Council (ALEC) Summit on December 4, 5, and 6, 2019, in Scottsdale, Arizona (the Summit). Those five committees include 1) the Senate’s Natural Resources and Energy Committee; 2) the Senate Water & Agriculture Committee; 3) the House of Representatives Appropriations Committee; 4) the House Federal Relations Committee; and 5) the House Health and Human Services Committee. The Plaintiffs assert that the summit will attract state legislators and private participants from across the country to formulate “model bills” that will be introduced in Arizona and nationwide. The Summit is not open to the public.
In the Complaint, the Plaintiffs assert that each of the legislative committees will have the ability to commit to introduce the model bills in one or both houses of the legislature and advance these bills through the legislative process. They argue that the participation of a quorum of each of the legislative committees at the summit will violate Arizona’s Open Meeting Law, A.R.S. § 38-431, et seq. That law requires that “all meetings of any public body shall be public meetings and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings,” and that “all legal action of public body shall occur during a public meeting.” A.R.S. §38-431.01. The Plaintiffs allege that the Legislature and legislative committees are public bodies as defined in the open meeting law. See A.R.S. §38-431.
Legal standard
A claim may be dismissed for failure to state a claim upon which relief can be granted. Rule 12(b)(6), Ariz. R. Civ. P. Under the Rule, a claim must be dismissed when the plaintiff is not entitled to relief under any interpretation of the facts. Coleman v. City of Mesa, 230 Ariz. 352, 356 ¶ 8 (2012). A court is to look only to the pleading itself and the well pled factual allegations therein. Cullen v. Auto-Owners Insurance Company, 218 Ariz. 417, 419 ¶ 7 (2008). Mere conclusory statements are insufficient to state a valid claim. Id. Courts must assume the truth of the factual allegations and all reasonable inferences therefrom in the light most favorable to the pleading party. Logan v. Forever Living Products International Inc., 203 Ariz. 191 (2002).
Discussion
The Defendant argues that the court must dismiss the complaint for several reasons.
1. Proper Parties
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As a preliminary matter, the Defendant argues that the Court should dismiss the action because the Plaintiffs failed to name and serve the proper defendant. Rule 12 (b) (5), Ariz. R. Civ. P. (insufficient service of process). It argues that the Arizona Constitution establishes the Legislature as two separate and independent houses, the Senate and the House of Representatives. Ariz. Const. art. IV, pt. 2, § 1. It argues that each house maintains its own membership, committee and subcommittee structures, and rules of proceedings. Id. §§ 8, 9. The Defendant argues that the Plaintiffs did not allege that it engaged in any wrongdoing, but rather that certain individual legislators acting as specific committees of a particular legislative house violated the open meeting law. It argues that the Constitution prohibits individual members from being served with civil process during the legislative session and that the Plaintiffs are suing the Legislature to get around that prohibition.
The Plaintiffs argue that the Legislature is a proper defendant in this matter. The Plaintiffs argue that the Legislature has been sued as the defendant or sued as the plaintiff in several cases. See McLaughlin v. Bennett, 225 Arizona 351 (2010) (including “Legislature of the State of Arizona” as a defendant); United States v. State of Arizona, No.CV 10-1413-PHX-SRB (D. Ariz. April 5, 2011) (order granting Motion of Arizona of State Legislature to appear as intervenor- defendant); Arizona State Legislature v. Arizona Independent Redistricting Commission, 997 F. Supp. 2d 1047 (D. Ariz. 2014) (holding that the Legislature has standing to bring a legal action where it shows a concrete injury). The Plaintiffs further argue that the fact that the Legislature consists of two chambers does not mean that it is not a single entity. See Ariz. Const. art. IV, pt. 1, § 1 (legislative authority vested “in the legislature, consisting of a Senate and a House of Representatives"). Finally, the Plaintiffs argue that the Open Meeting Law itself recognizes the Legislature as a specific entity because the law expressly includes the Legislature in the definition of a “public body.” A.R.S. §38-431
The Court finds that the Arizona Constitution itself expressly refers to the Legislature as a discrete entity, albeit made up of two other discrete bodies, the Senate and House. Ariz. Const. art. IV, pt. 1, § 1. As a discrete entity, the Legislature has been a party in multiple legal actions. Further, the Open Meeting Law itself recognizes the Legislature as a public body subject to the law. For these reasons, the court concludes that the Defendant is a proper party to this action.
2. Political question doctrine
The Defendant next argues that the enforcement of the Open Meeting Law against it is a political question that is not enforceable through the courts. It argues that the case involves a decision that the Constitution commits to one of the political branches of government and raises issues not susceptible to judicial resolution. Therefore, courts should refrain from addressing the issue.
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Specifically, the Defendant points to the Arizona Constitution which provides that each house of the legislature shall “determine its own rules of procedure.” Ariz. Const. art. IV, pt. 2, § 8. It notes that the Constitution also provides that the majority of the members of each house shall constitute a quorum but a smaller number may meet for various purposes “in a manner and under such penalties as each house may prescribe.” Ariz. Const. art. IV, pt. 1, § 9. The Defendant concludes that the entirety of legislative proceedings – including defining what constitutes a committee “meeting” and the definition of the term “committee” itself – are the exclusive province of each legislative chamber.
The Defendant argues that the Open Meeting Law itself acknowledges the constitutional grant of authority to the Legislature by noting that “either house of the legislature may adopt a rule or procedure pursuant to article IV, part 2 section 8, Constitution of Arizona, to provide an exemption to the notice and agenda requirements of this article.” A.R.S. §38-431.08 (D). The Defendant goes on to note that both the House and the Senate of the 54th Legislature adopted meeting notice and agenda requirements and that each chamber and all committees and subcommittees shall be governed exclusively by these rules. See Arizona House of Representatives Rule 32 (H); Arizona Senate Rules, 54th Legislature, Rule 7. The Defendant argues that these rules entirely supplant the open meeting law.
The Defendant cites to cases in at least eight other states holding that the Legislature’s compliance with the state’s open meeting or similar sunshine law are not justiciable. It further notes that, in adopting the open meeting law in 1982, the 35th Legislature did not, and could not, limit the constitutional authority of future legislatures to control their own proceedings.
The Plaintiffs argue that the political question doctrine is a narrow exception to the judiciary’s constitutional role of deciding cases and controversies. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2015). They argue that the U.S. Supreme Court has never applied the political question doctrine in a case involving alleged statutory violations. See El-Shifa Pharmaceutical Industry Co. v. United States, 607 F.3d 836, 856 (D.C. Cir. 2010) (Kavanaugh J. concurring). They note that the most important factors in evaluating whether a claim is a political question are whether there is: 1) a “textually demonstrable constitutional commitment of the issue to a coordinate political department;” or 2) a “lack of judicially discoverable and manageable standards for resolving it.” Zivotofsky, 566 U.S. at 195.
The Plaintiffs argue that the Arizona Constitution does not supplant all restrictions on meetings such as those contained in the Open Meeting Law. They argue that the constitutional provisions only contemplate actions of a duly constituted, collective house body and not specific legislative committees. They further argue that the constitutional powers relate only to those procedures specifically listed in the Constitution. Because the constitutional provisions are not an all-encompassing grant of legislative authority, Plaintiffs argue that courts must determine the Docket Code 926 Form V000A Page 4
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limits of the legislative powers contained in the constitutional text. See Powell v. McCormick, 395 U.S. 486 (1969). Finally, the Plaintiffs argue that the Court must read the application of the open meeting law itself to determine whether it impedes the constitutional grant of authority to the legislature. They argue that the Open Meeting Law does not.
The political question doctrine flows from the basic principle of separation of powers and acknowledges that some decisions are entrusted to branches of government other than the judiciary. For these reasons, Arizona courts refrain from addressing political questions. Kromko v. Arizona Board of Regents, 216 Ariz. 190, 192-193 (2007). Our Constitution provides that the departments of our state government “shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.” Ariz. Const. Art. III. “A controversy is nonjusticiable—i.e., involves a political question—where there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it....’ ” Kromko, 216 Ariz. at 192.
In this case, the relevant portions of the Arizona Constitution provide as follows:
8. Organization; officers; rules of procedure
Each house, when assembled, shall choose its own officers, judge of the election and qualification of its own members, and determine its own rules of procedure.
9. Quorum; compelling attendance; adjournment
The majority of the members of each house shall constitute a quorum to do business, but a smaller number may meet, adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each house may prescribe. Neither house shall adjourn for more than three days, nor to any place other than that in which it may be sitting, without the consent of the other.
Ariz. Const. art. IV, pt. 2, §§ 8, 9 (emphasis added).
In determining whether a court may decide if the Defendant violated the statutory requirements for public meetings, this Court must first determine whether there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department.” In this case, the Constitution provides for each house to determine its own rules of procedure. Ariz. Const. art. IV, pt. 2, § 8. That grant of authority specifically applies to the manner in which members of each house may meet. Ariz. Const. art. IV, pt. 2, § 9. The manner in which members of the legislature meet logically includes the types of requirements set forth in the open meeting law, Docket Code 926 Form V000A Page 5
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CV 2019-014945 10/30/2020
including whether the meetings are noticed and open to the public, the manner of how legal action occurs, whether minutes are taken, and the posting of legal actions taken. See A.R.S. § 38-431.01. Because the text of the Constitution commits these issues to the Legislature, the first factor of determining whether the issue is a political question is met.
In looking at the second factor for determining a political question, the courts must consider whether there is “a lack of judicially discoverable and manageable standards for resolving” the issue. In this case, the constitutional delegation is broad: each house is to determine its own rules of procedure. Given the Legislature’s plenary authority in this arena, there appears to be no judicially manageable standard for determining what should be included in those legislative rules of procedure, including whether there should be a requirement for public meetings in the settings challenged by the Plaintiffs. In fact, a reasonable person could imagine a broad range of rules of procedure a Legislature might adopt to meet the specific needs of each house and its committees and its members. Therefore, the second factor in determining a political question likewise appears to be met in this case.
Contrary to the Plaintiffs’ arguments, the constitutional text does not limit itself to rules and procedures for a “duly constituted and collective house body.” In fact, the constitutional text appears to contemplate committees when it authorizes “a smaller number" than a quorum to meet and compel attendance “in such manner and under such penalties as each house may prescribe." Art. IV, pt. 2, § 9. The Court finds no basis to conclude that the text applies only to each house as a whole rather than individual committees.
Several other state courts likewise have concluded that their legislature’s compliance with open meeting laws is a nonjusticiable political question. See Defendant’s Motion at 7-8. As the New Hampshire Supreme Court recognized, “we emphasize that the question before us is not whether the Right-to-Know Law applies to the legislature. By the statute’s express terms, it does. The question before us is whether the legislature’s alleged violation of the Right-to-Know Law is justiciable. We have concluded that this question is not justiciable.” Hughes v. Speaker of the New Hampshire House of Representatives, 876 A.2d 736, 746 (N.H. 2005).
Because the issue in this case is a political question, the Court must decline to address it.
Other issues
The Defendant also argues that the legislators’ attendance at summit constituted a meeting of a political caucus which is exempted from the requirements of the open meeting law. See A.R.S. § 38-431.08 (A) (1). It further argues that the Complaint fails to allege an actionable violation of the Open Meeting Law or any cognizable relief. Finally, the Defendant asserts that the Plaintiffs’ interpretation of the Open Meeting Law would entangle the courts in matters that exceed their Docket Code 926 Form V000A Page 6
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constitutional authority. Because the Court determines that the issue is a political question, it declines to address these additional issues raised in the motion to dismiss.
Conclusion
For the reasons stated herein,
IT IS ORDERED, granting the Defendant’s Motion to Dismiss.
Docket Code 926 Form V000A Page 7
Exhibi t 10
Exhibit 10 Settlement Agreement – Arizona Democratic Party, et al. v. Fann (CV2021-006646) - Page 1 of 5
SETTLEMENT AGREEMENT,
The parties to this Settlement Agreement (“Agreement”) are the Arizona Democratic Party (“ADP”), Supervisor Steve Gallardo in his individual capacity (“Gallardo”), Secretary of State Katie Hobbs in her official capacity (“Secretary”), the First Amendment Coalition of Arizona, Inc. (“FACA”), Senate President Karen Fann in her official capacity (“Fann”), Senator Warren Petersen in his official capacity (“Petersen”), Ken Bennett (“Bennett”), and Cyber Ninjas, Inc. (“CN”). ADP, Gallardo, the Secretary, and FACA may be referred to collectively hereafter as “Plaintiffs.” Fann, Petersen, and Bennett may be referred to collectively hereafter as the “Senate Defendants.” Fann, Petersen, Bennett, and CN may be referred to collectively hereafter as “Defendants.” The parties may be referred to separately hereafter as a “Party” or collectively as the “Parties.”
Recitals
1. On April 22, 2021, ADP and Gallardo filed an action in Arizona Superior Court (Maricopa County) against Defendants related to the conduct of an audit of the 2020 General Election results in Maricopa County, CV2021-006646 (“Litigation”).
2. On April 27, 2020, FACA and the Secretary were permitted to intervene in the Litigation.
3. The Parties, in consultation with their respective counsel and in order to avoid additional litigation, have agreed to settle all claims against each other that have been in the Litigation.
The Parties affirm the accuracy of the foregoing recitals, and agree as follows:
Terms of Agreement
1. Conduct of the Audit. In exchange for the release provided in this Agreement, the Defendants agree as follows:
a. Defendants have disclosed or will disclose the following policies or procedures for the audit, and CN warrants and represents that each of the following was in effect on or earlier than April 27, 2021 and will remain in place for the duration of the audit: all documents comprising “Exhibit D” originally lodged under seal with the Court on April 25, 2021, and all policies and procedures Defendants and their agents are using to conduct the audit. This includes training plans and documents to ensure that all workers understand and comply with all security procedures applicable to ballots and electronic voting systems, and forms utilized to conduct the audit, including chain of custody forms, tally sheets, and forms used to aggregate tallies. b. CN and their agents will not compare signatures on early ballot envelopes with signatures from the voter registration file. The Senate Defendants warrant
{00546691.1 } Settlement Agreement – Arizona Democratic Party, et al. v. Fann (CV2021-006646) - Page 2 of 5
and represent that they are not currently comparing signatures on early ballot envelopes with signatures from the voter registration file, and will notify Plaintiffs within 48 hours of any decision to undertake such signature comparison and afford Plaintiffs 48 hours to respond to resolve any concerns. If the parties cannot resolve the issue in a mutually agreeable manner, Plaintiffs may seek emergency injunctive and/or declaratory relief in court to seek compliance with the law. c. Defendants and their agents will not have pens with blue or black ink anywhere ballots are handled and will take reasonable precautions to prevent the alteration, damage, or destruction of any ballot during the conduct of the audit. d. Security assurances: (i) Defendants and their agents will continue to have and abide by policies to ensure that Maricopa County voting systems are secured in a manner that prevents unauthorized access or tampering, including maintaining a detailed log of who accesses the machines; (ii) Defendants and their agents will continue to have and abide by policies to ensure that ballots are secured in a manner that prevents unauthorized access, including maintaining a detailed log of who accesses the ballots; (iii) Defendants and their agents will continue to have and abide by policies to ensure that electronic data from and electronic or digital images of ballots are secured in a manner that protects them from physical and electronic access, including unauthorized copying or transfer; (iv) Defendants and their agents will continue to have and abide by policies to ensure that voter information from the voter registration database, including digital images of voter signatures, are secured in a manner that protects them from physical and electronic access, including unauthorized copying or transfer. e. Defendants and their agents will have and abide by policies to prevent the publication of scanned images of ballots without first securing a court order authorizing such publication. f. Defendants and their agents will have and abide by policies to ensure that no provisional ballot envelope that was not verified by the County Recorder (and was therefore previously unopened) is opened. g. Defendants and their agents will allow the news media to observe and report on the audit without signing up to participate in or volunteer at the audit, and on reasonable terms, including allowing the news media to use note pads and red or green pens. The news media is free to take still and video photography, except of ballots where the ballot markings can be ascertained by the naked eye or a zoom lens. h. Defendants and their agents will permit observers designated in advance by the Secretary, not to exceed three designees per shift, to observe and monitor the audit, including processing of ballots and election equipment hardware, without the designees signing up as volunteer observers for the audit. Such observation and monitoring shall be permitted on reasonable terms, and observers will be permitted to use non-white note pads and red or green pens, including on the counting floor.
{00546691.1 } Settlement Agreement – Arizona Democratic Party, et al. v. Fann (CV2021-006646) - Page 3 of 5
2. Dismissal of Claims in the Litigation. The Parties agree that they will stipulate to the dismissal of the Litigation with prejudice and with all parties to bear their own fees and costs upon the execution of this Agreement.
3. Release. Each Plaintiff releases Defendants from legal liability for all claims that were advanced by that Plaintiff in the Litigation. This release does not include any claim that is not currently pending in the Litigation or any claim that may arise in the future.
4. No Admission of Fault. By entering into this Agreement, the Parties do not admit any fault or liability, or lack thereof, related to the allegations or defenses made by any Party in the Litigation. This Agreement is a compromise of disputed claims.
5. Public Release of Agreement. This Agreement is not confidential and may be released or discussed in public by any Party.
6. Knowing and Voluntary Agreement. Each Party enters into this Agreement as a matter of free will and has not been pressured or coerced in any way into signing this Agreement. Each Party expressly represents and warrants that the persons signing below are authorized to execute this Agreement on the Party’s behalf.
7. Severability. If any provision or part of any provision of this Agreement is held to be invalid or for any reason unenforceable by a court of competent jurisdiction, the remaining portions of this Agreement will remain in full force and effect to the maximum extent permitted by law.
8. Modification/Waiver. No modification, amendment or waiver of any of the provisions contained in this Agreement will be binding upon any Party hereto unless made in writing and signed by such party or by a duly authorized officer or agent of such Party.
9. No Presumption Against Drafter. This Agreement has been negotiated and prepared by all Parties and their respective counsel, and any rule of construction under which ambiguities are to be resolved against the drafter will not apply in interpreting this Agreement.
10. Entire Agreement; Choice of Law. This Agreement constitutes a single, integrated written contract expressing the entire agreement of the Parties concerning the subject matter of this Agreement. No other agreements or understandings of any kind concerning the subject matter of this Agreement, whether express or implied in law or fact, have been made by the Parties to this Agreement. This Agreement will be construed in accordance with, and be governed by, the laws of the State of Arizona.
11. Enforcement. If there is a question or concern about Defendants’ or their agents’ compliance with any part of this Agreement, Plaintiffs and Defendants will make a
{00546691.1 }
Settlement Agreement – Arizona Democratic Party, et al. v. Fann (CV2021-006646) - Page 4 of 5 good faith effort to resolve the issue by mutual agreement. Within 48 hours of identifying a potential breach of this Agreement, Plaintiffs shall notify Defendants of the issue and afford the Defendants 48 hours to respond. If the parties cannot resolve the issue in a mutually agreeable manner, Plaintiffs may seek emergency injunctive and/or declaratory relief in court to seek compliance with the law, in addition to raising a claim for breach of contract. Any action to enforce the terms of this Agreement must be brought in Maricopa County (Arizona) Superior Court, and the Parties unconditionally and irrevocably consent to that court’s exercise of personal jurisdiction over them in any such action. By entering into this Agreement, the Defendants do not waive or limit any argument or defense, including but not limited to legislative immunity or privilege. Likewise, Plaintiffs do not waive or limit their arguments that any such defenses, including immunity or privilege, do not apply to the Senate Defendants or their agents. In any action to enforce this Agreement (or any dispute otherwise arising out of this Agreement), the Parties agree to bear their own fees and costs.
12. Counterparts. This Agreement may be signed in counterparts, each of which will constitute an original, but all of which together will constitute one and the same instrument. The counterparts may be executed and delivered by facsimile or other electronic signature by any of the Parties to any other Party and the receiving Party may rely on the receipt of such document delivered by facsimile or other electronic means as if the original had been received.
13. Signatures and Effective Date. The Parties have executed this Agreement on the dates appearing below. This Agreement will become effective immediately upon its execution by all Parties.
ARIZONA DEMOCRATIC PARTY. SUP. STEVE GALLARDO
By: Charles Fisher Its: Executive Director
Date Date
SECRETARY OF STATE KATIE HOBBS FIRST AMENDMENT COALITION OF ARIZONA, INC.
By: Sambo “Bo” Dul By: Daniel C. Barr Its: State Elections Director Its: Attorney
{00546691.1 }
Settlement Agreement – Arizona Democratic Party, et al. v. Fann (CV2021-006646) - Page 5 of 5
5/5/2021 5/5/2021 Date Date
PRESIDENT KAREN FANN SEN. WARREN PETERSEN
Date Date
CYBER NINJAS, INC. KEN BENNETT
By: Doug Logan Its: CEO
Date Date
{00546691.1 }
Settlement Agreement – Arizona Democratic Party, et al. v. Fann (CV2021-006646) - Page 5 of 5
Date Date
PRESIDENT KAREN FANN SEN. WARREN PETERSEN
Date Date
CYBER NINJAS, INC. KEN BENNETT
By: Doug Logan Its: CEO
05/05/2021 Date Date
{00546691.1 }
Exhibi t 1
Exhibit 11 U.S. Department of Justice Civil Rights Division
May 5, 2021
VIA EMAIL
The Honorable Karen Fann President, Arizona State Senate 1700 West Washington Street, Room 205 Phoenix, AZ 85007
Dear Senator Fann:
I write regarding issues arising under federal statutes enforced by the United States Department of Justice that are related to the audit required by the Arizona State Senate for the November 2020 federal general election in Maricopa County. News reports indicate that the Senate subpoenaed ballots, elections systems, and election materials from Maricopa County and required that they be turned over to private contractors, led by a firm known as Cyber Ninjas.
The Department has reviewed available information, including news reports and complaints regarding the procedures being used for this audit. The information of which we are aware raises concerns regarding at least two issues of potential non- compliance with federal laws enforced by the Department.
The first issue relates to a number of reports suggesting that the ballots, elections systems, and election materials that are the subject of the Maricopa County audit are no longer under the ultimate control of state and local elections officials, are not being adequately safeguarded by contractors at an insecure facility, and are at risk of being lost, stolen, altered, compromised or destroyed.1 Federal law creates a duty to safeguard and preserve federal election records. The Department is charged with enforcement of provisions of the Civil Rights Act of 1960, 52 U.S.C. §§ 20701-20706. This statute requires state and local election officials to maintain, for twenty-two months after the conduct of an election for federal office, “all records and papers” relating to any “act requisite to voting in such election…” Id. at § 20701. The purpose of
1 See, e.g., https://www.azfamily.com/news/investigations/cbs_5_investigates/security-lapses-plague- arizona-senates-election-audit-at-state-fairgrounds/article_b499aee8-a3ed-11eb-8f94-bfc2918c6cc9.html; https://www.azmirror.com/2021/04/23/experts-raise-concerns-about-processes-transparency-as- election-audit-begins/; https://tucson.com/news/local/arizona-senate-issues-subpoena-demanding- access-to-2-million-plus-ballots-cast/article_a426fc7b-60d8-5837-b244-17e5c2b2ddb4.html; https://www.azmirror.com/2021/02/26/judge-sides-with-senate-says-maricopa-must-turn-over- election-materials-for-audit/
these federal preservation and retention requirements for elections records is to “secure a more effective protection of the right to vote.” State of Ala. ex rel. Gallion v. Rogers, 187 F. Supp. 848, 853 (M.D. Ala. 1960), aff’d sub nom. Dinkens v. Attorney General, 285 F.2d 430 (5th Cir. 1961) (per curiam), citing H.R. Rep. 956, 86th Cong., 1st Sess. 7 (1959); see also Federal Prosecution of Election Offenses, Eighth Edition 2017 at 75 (noting that “[t]he detection, investigation, and proof of election crimes – and in many instances Voting Rights Act violations – often depend[s] on documentation generated during the voter registration, voting, tabulation, and election certification processes”).2
If the state designates some other custodian for such election records, then the Civil Rights Act provides that the “duty to retain and preserve any record or paper so deposited shall devolve upon such custodian.” 52 U.S.C. § 20701. The Department interprets the Act to require that “covered election documentation be retained either physically by election officials themselves, or under their direct administrative supervision.” See Federal Prosecution of Election Offenses at 79. In addition, if the state places such records in the custody of other officials, then the Department views the Act as requiring that “administrative procedures be in place giving election officers ultimate management authority over the retention and security of those election records, including the right to physically access” such records. Id. We have a concern that Maricopa County election records, which are required by federal law to be retained and preserved, are no longer under the ultimate control of elections officials, are not being adequately safeguarded by contractors, and are at risk of damage or loss.
The second issue relates to the Cyber Ninjas’ statement of work for this audit.3 Among other things, the statement of work indicates that the contractor has been working “with a number of individuals” to “identify voter registrations that did not make sense, and then knock on doors to confirm if valid voters actually lived at the stated address.” Statement of Work at ¶ 2.1. The statement of work also indicates that the contractor will “select a minimum of three precincts” in Maricopa County “with a high number of anomalies” in order “to conduct an audit of voting history” and that voters may be contacted through a “combination of phone calls and physical canvassing” to “collect information of whether the individual voted in the election” in November 2020. Statement of Work at ¶ 5.1. This description of the proposed work of the audit raises concerns regarding potential intimidation of voters. The Department enforces a number of federal statutes that prohibit intimidation of persons for voting or attempting to vote. For example, Section 11(b) of the Voting Rights Act provides that “No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote…” 52
2 See https://www.justice.gov/criminal/file/1029066/download 3 See https://www.washingtonpost.com/context/cyber-ninjas-statement-of-work/2013a82d-a2cf-48be- 8e9f-a26bfd5143e5/ 2
U.S.C. § 10307(b). Past experience with similar investigative efforts around the country has raised concerns that they can be directed at minority voters, which potentially can implicate the anti-intimidation prohibitions of the Voting Rights Act. Such investigative efforts can have a significant intimidating effect on qualified voters that can deter them from seeking to vote in the future.
We would appreciate your response to the concerns described herein, including advising us of the steps that the Arizona Senate will take to ensure that violations of federal law do not occur.
Sincerely,
Pamela S. Karlan Principal Deputy Assistant Attorney General Civil Rights Division [email protected]
cc: Glenn McCormick, Acting United States Attorney for the District of Arizona Mark Brnovich, Arizona Attorney General Katie Hobbs, Arizona Secretary of State Stephen Richer, Maricopa County Recorder
3
Exhibi t 1 2
Exhibit 12
KAREN FANN COMMITTEES: SENATE PRESIDENT Rules, Chairman FIFTY-FIFTH LEGISLATURE 1700 WEST WASHINGTON, SENATE PHOENIX, ARIZONA 85007-2844 PHONE: (602) 926-5874 TOLL FREE: 1-800-352-8404 [email protected] DISTRICT 1
Arizona State Senate
May 7, 2021
Pamela S. Karlan Principal Deputy Assistant Attorney General United States Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 [email protected]
Dear Ms. Karlan:
Thank you for your letter of May 5, 2021. I am confident I speak for the entire Arizona State Senate when I say that we share your commitment to protecting the integrity of election materials and safeguarding the constitutional rights of all Arizona voters. To that end, the ongoing audit of the November 2020 general election returns in Maricopa County are governed by comprehensive and rigorous security protocols that will fully preserve all physical and electronic ballots, tabulation systems, and other election materials.
As a preliminary matter, your stated concern that these records “are no longer under the ultimate control of state and local elections officials” is misplaced. As you know, state and local governments routinely enlist the services of outside private vendors to administer election-related functions that demand substantial manpower or other logistical resources; indeed, Maricopa County enlisted the help of private vendors in connection with printing, mailing, and processing the very materials at issue in the audit. In that vein, the Senate has similarly retained private vendors to assist in carrying out the audit. Questions of physical security, however, were expressly reserved for the Arizona State Senate in the prime vendor contract. And in practice, the Senate’s appointed liaison, former Arizona Secretary of State Ken Bennett, is present at the audit site virtually every day, and is integrally involved in overseeing every facet of the audit including, most importantly for purposes of your letter, the security of the site and election materials. I am in regular communication with Secretary Bennett and remain fully apprised of all material developments in the audit.
After some early and well publicized challenges, the security protocols at the audit site have been made very strong. Ballots and electronic tabulation equipment are subject to continuous video surveillance (which is live streamed to the general public online) and are under the watchful eye of armed security personnel twenty-four hours a day. All means of ingress to the facility remain locked at all times and attended by security guards, and a security guard is posted immediately adjacent to the area in which ballots are stored. All ballot review and processing occurs within the
confines of a carefully documented chain of custody and, from the moment the counting began, all audit team members and observers alike have been strictly prohibited from bringing into the demarcated ballot processing area any electronic device or any instrument (e.g., a blue or black ink pen) that could be used to spoliate ballots. More to the point, not a single ballot or other official election document has been destroyed, defaced, lost, or adulterated during the course of the audit, and we are confident that our strong security infrastructure has minimized to the greatest extent feasible the risk of any such breaches in the future. We are unaware of any significant security breach since the day the ballots were delivered; this is undoubtedly due to the thorough protocols implemented since that time. Upon the audit’s completion, all voting materials and devices will be remitted to the custody of Maricopa County officials.
With respect to voter canvassing, the Senate determined several weeks ago that it would indefinitely defer that component of the audit. If and to the extent the Senate subsequently decides that canvassing is necessary to the successful completion of the audit, its vendor will implement detailed requirements to ensure that the canvassing is conducted in a manner that complies fully with the commands of the United States Constitution and federal and state civil rights laws. Specifically, persons conducting the canvassing:
• Will not select voters or precincts for canvassing based on race, ethnicity, sex, party affiliation, or any other legally protected status; • Will not wear or display any badges, insignia, or other symbols suggesting, or make any statements implying, or refrain from correcting any apparent misunderstanding concerning, an affiliation with law enforcement, immigration enforcement, tax enforcement, or the military; • Will not carry a firearm or other weapon when conducting canvassing; • Will not ask any voter to identify any candidates for whom he or she voted; • Will wear a brightly colored shirt identifying the individual as an employee of the Senate’s retained vendor; • Will clearly state at the beginning of the conversation that canvassed voters are not the subject of the investigation and that their participation in the canvass is entirely voluntary; and • Will use a pre-approved, standardized script with non-leading questions.
If canvassing is necessary to complete the audit, we believe these protocols, which will be reinforced by thorough training programs, would permit the Senate to discharge its legislative oversight and investigation functions without compromising the rights or privacy of any voter.
Since the inception of the audit, I have emphasized the crucial importance of transparency and collaboration to its success. To that end, I am happy to provide any additional information and to continue a constructive dialogue with your office to advance our common objective of protecting the rights of voters and the integrity of our elections.
Thank you.
Karen Fann, President Arizona State Senate
April 6, 2021
VIA EMAIL
Senator Karen Fann Arizona State Capitol Complex 1700 W Washington Street Phoenix, AZ 85007 [email protected]
Re: Public Records Request
Dear Senator Fann:
Pursuant to the Arizona Public Records Law, A.R.S. §§ 39-121 et seq., American Oversight makes the following request for records.
On February 23, 2021, Maricopa County announced the results of an independent audit into its November 3 elections results, confirming that ballots were tabulated accurately and that voting equipment and software were secure.1 Nevertheless, the Arizona State Senate has pursued an additional audit and recount, including the hand tabulation of more than two million votes. On March 31, 2021, Senate President Karen Fann announced that the audit team would be led by the firm Cyber Ninjas,2 whose founder has repeatedly circulated baseless accusations of widespread fraud in the 2020 elections.3
American Oversight seeks records with the potential to shed light on the Senate’s planned audit and recount of Maricopa County’s election results, including whether or to what extent partisan political interests informed the selection of auditors. As explained more fully below, prompt disclosure of these records is crucial to meaningfully inform the public about the details of the audit process before the auditors have begun contacting voters and reviewing ballots.
1 Jen Fifield, Maricopa County’s 2020 Election Votes Were Counted Correctly, More County Audits Show, Ariz. Republic (updated Feb. 23, 2021, 5:48 PM), https://www.azcentral.com/story/news/politics/elections/2021/02/23/maricopa- countys-election-audits-show-2020-votes-counted-correctly/4550644001/. 2 Jeremy Duda, Arizona Senate Hires a ‘Stop the Steal’ Advocate to Lead 2020 Election Audit, AZ Mirror (updated Apr. 1, 2021, 10:18 AM), https://www.azmirror.com/2021/03/31/arizona-senate-hires-a-stop-the-steal- advocate-to-lead-2020-election-audit/. 3 Id.
1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org
Requested Records
American Oversight requests that your office promptly produce the following records:
1. A complete copy (including any attachments) of any contract, amendment, memorandum of understanding, statement of work, or other written agreement in possession of Senator Karen Fann’s office regarding external entities providing services relevant to the planned audit of Maricopa County’s 2020 election results.
This request should be interpreted to include, at a minimum, agreements with Cyber Ninjas, Wake Technology Services, CyFIR, and Digital Discovery ESI, as well as agreements with formal or informal advisors, consultants, legal counsel, or other contractors or lessors involved in the planning, preparation, or execution of the audit.
Please provide all responsive records from November 3, 2020, through the date the search is conducted.
2. All records in possession of Senator Karen Fann’s office pertaining to the selection of auditors, including but not limited to: solicitations for bids; records reflecting criteria for evaluating bids; complete copies of any bids received; or statements of rejection made to any bidders.
Please provide all responsive records from November 3, 2020, through the date the search is conducted.
“Prompt” disclosure of these records is crucial to meaningfully inform the public on the details and scope of the audit process while the public still has an opportunity to affect the conduct of the process. The public has a legitimate interest in the manner in which the audit is conducted, as Cyber Ninjas itself has proposed to contact voters either by phone or in person to question their voting histories,4 a step that has been described as “harassment and intimidation” of voters.5 Further, the current audit—the second of its kind—raises potential questions concerning the integrity of certain state government officials, including the extent to which these actors seek to undermine public confidence in the electoral process.
Disclosure of the requested records is only meaningful if it occurs sufficiently promptly to inform the public about the process while there is still time for them to petition their government to alter the process. The Statement of Work
4 Statement of Work between Cyber Ninjas Inc. and Arizona State Senate, Mar. 31, 2021, https://www.documentcloud.org/documents/20536503-cyber-ninjas-sow- executed-33121. 5 Bob Christie, County Board to Senate: Find Another Spot to Recount Ballots, Assoc. Press, Apr. 2, 2021, https://apnews.com/article/joe-biden-arizona-phoenix-elections-voting- 23a34828e8dadd190fe2f02555559b30.
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executed by Cyber Ninjas contemplates that the auditors will be contacting individual voters to ask about their voting histories in the first phase of the audit process. That phase is expected to be completed within 20 days, after which point the auditors will begin reviewing paper ballots.6 Disclosure of records after Cyber Ninjas has already begun handling ballots and contacting voters would be too late to prevent any potential harms resulting from those processes.
Statement of Noncommercial Purpose
This request is made for noncommercial purposes. American Oversight seeks records regarding the Arizona State Senate’s planned audit of Maricopa County’s 2020 election results. Records with the potential to shed light on this matter would contribute significantly to public understanding of operations of the government, including whether or to what extent partisan political considerations influenced the senate’s decision to pursue an additional audit, or guided the selection of the auditing team.7
Because American Oversight is a 501(c)(3) nonprofit, this request is not in American Oversight’s financial interest and is not made for a commercial purpose. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.8
Because this request is made for noncommercial purposes, American Oversight requests that any fees charged in connection with processing this request be limited to copying and postage charges, if applicable.9 Please notify American Oversight of any anticipated fees or costs in excess of $100 prior to incurring such costs or fees.
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following guidance regarding the scope of the records sought and the search and processing of records:
6 See supra, note 4. 7 See supra, notes 1 & 2. 8 American Oversight currently has approximately 15,680 page likes on Facebook and 106,100 followers on Twitter. American Oversight, Facebook, https://www.facebook.com/weareoversight/ (last visited Apr. 5, 2021); American Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited Apr. 5, 2021). 9 A.R.S. § 39-121.01(D)(1); see also Hanania v. City of Tucson,128 Ariz. 135, 624 P.2d 332 (Ct. App. 1980). Furthermore, because this request is for noncommercial purposes, additional fees provided for under A.R.S. § 39-121.03(A) are not applicable and should not be assessed.
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§ Please search all locations and systems likely to have responsive records, regardless of format, medium, or physical characteristics. For instance, if the request seeks “communications,” please search all locations likely to contain communications, including relevant hard-copy files, correspondence files, appropriate locations on hard drives and shared drives, emails, text messages or other direct messaging systems (such as iMessage, WhatsApp, Signal, or Twitter direct messages), voicemail messages, instant messaging systems such as Lync or ICQ, and shared messages systems such as Slack.
§ In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions.
§ Our request for records includes any attachments to those records or other materials enclosed with those records when they were previously transmitted. To the extent that an email is responsive to our request, our request includes all prior messages sent or received in that email chain, as well as any attachments to the email.
§ Please search all relevant records or systems containing records regarding agency business. Do not exclude records regarding agency business contained in files, email accounts, or devices in the personal custody of your officials, such as personal email accounts or text messages.
§ If any records are withheld in full or in part, pursuant to A.R.S. § 39- 121.01(D)(2), please provide an index of records or categories of records that have been withheld and the reasons the records or categories of records have been withheld.
§ In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If a request is denied in whole, please state specifically why it is not reasonable to segregate portions of the record for release.
§ Please take appropriate steps to ensure that records responsive to this request are not deleted by the agency before the completion of processing for this request. If records potentially responsive to this request are likely to be located on systems where they are subject to potential deletion, including on a scheduled basis, please take steps to prevent that deletion, including, as appropriate, by instituting a litigation hold on those records.
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Conclusion
If you have any questions regarding how to construe this request for records or believe that further discussions regarding search and processing would facilitate a more efficient production of records of interest to American Oversight, please do not hesitate to contact American Oversight to discuss this request. American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and your agency can decrease the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in an electronic format by email. Alternatively, please provide responsive material in native format or in PDF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis.
We share a common mission to promote transparency in government. American Oversight looks forward to working with your agency on this request. If you do not understand any part of this request, please contact Khahilia Shaw at [email protected] or 202.539.6507.
Sincerely,
/s/ Khahilia Shaw Khahilia Shaw on behalf of American Oversight
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April 6, 2021
VIA EMAIL
Senator Karen Fann Arizona State Capitol Complex 1700 W Washington Street Phoenix, AZ 85007 [email protected]
Re: Public Records Request
Dear Senator Fann:
Pursuant to the Arizona Public Records Law, A.R.S. §§ 39-121 et seq., American Oversight makes the following request for records.
On February 23, 2021, Maricopa County announced the results of an independent audit into its November 3 elections results, confirming that ballots were tabulated accurately and that voting equipment and software were secure.1 Nevertheless, the Arizona State Senate has pursued an additional audit and recount, including the hand tabulation of more than two million votes. On March 31, 2021, Senate President Karen Fann announced that the audit team would be led by the firm Cyber Ninjas,2 whose founder has repeatedly circulated baseless accusations of widespread fraud in the 2020 elections.3
American Oversight seeks records with the potential to shed light on the Senate’s planned audit and recount of Maricopa County’s election results, including whether or to what extent partisan political interests informed the selection of auditors. As explained more fully below, prompt disclosure of these records is crucial to meaningfully inform the public about the details of the audit process before the auditors have begun contacting voters and reviewing ballots.
Requested Records
American Oversight requests that your office promptly produce the following records:
1 Jen Fifield, Maricopa County’s 2020 Election Votes Were Counted Correctly, More County Audits Show, Ariz. Republic (updated Feb. 23, 2021, 5:48 PM), https://www.azcentral.com/story/news/politics/elections/2021/02/23/maricopa- countys-election-audits-show-2020-votes-counted-correctly/4550644001/. 2 Jeremy Duda, Arizona Senate Hires a ‘Stop the Steal’ Advocate to Lead 2020 Election Audit, AZ Mirror (updated Apr. 1, 2021, 10:18 AM), https://www.azmirror.com/2021/03/31/arizona-senate-hires-a-stop-the-steal- advocate-to-lead-2020-election-audit/. 3 Id.
1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org
All records (including emails, email attachments, text messages, messages on messaging platforms (such as Slack, GChat or Google Hangouts, Lync, Skype, or WhatsApp) telephone call logs, calendar invitations, calendar entries, any handwritten or electronic notes taken during any oral communications, summaries of any oral communications, or other materials) sent or received by Senator Karen Fann, anyone communicating on their behalf, such as a scheduler or assistant, or anyone serving as their Chief of Staff, regarding the planning or execution of the Arizona State Senate’s audit of Maricopa County’s elections results.
This request should be interpreted to include, but not be limited to, communications concerning: the Senate’s decision to subpoena ballots and subsequent litigation; the bidding process for selecting an auditing team; the scope and conduct of the planned recount, including specific provisions such as hand counting ballots or questioning individual voters; the acquisition of confidential voter data or access to voter files; and/or discussion of alleged fraud as justification for the planned recount.
Please note that American Oversight does not seek, and that this request specifically excludes, the initial mailing of news clips or other mass-distribution emails. However, subsequent communications forwarding such emails are responsive to this request. In other words, for example, if Sen. Fann received a mass-distribution news clip email, that initial email would not be responsive to this request. However, if Sen. Fann forwarded that email to another individual with their own commentary, that subsequent message would be responsive to this request and should be produced.
Please provide all responsive records from November 3, 2020, through the date the search is conducted.
“Prompt” disclosure of these records is crucial to meaningfully inform the public on the details and scope of the audit process while the public still has an opportunity to affect the conduct of the process. The public has a legitimate interest in the manner in which the audit is conducted, as Cyber Ninjas itself has proposed to contact voters either by phone or in person to question their voting histories,4 a step that has been described as “harassment and intimidation” of voters.5 Further, the current audit—the second of its kind—raises potential questions concerning the integrity of certain state government officials, including the extent to which these actors seek to undermine public confidence in the electoral process.
4 Statement of Work between Cyber Ninjas Inc. and Arizona State Senate, Mar. 31, 2021, https://www.documentcloud.org/documents/20536503-cyber-ninjas-sow- executed-33121. 5 Bob Christie, County Board to Senate: Find Another Spot to Recount Ballots, AP, Apr. 2, 2021, https://apnews.com/article/joe-biden-arizona-phoenix-elections-voting- 23a34828e8dadd190fe2f02555559b30.
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Disclosure of the requested records is only meaningful if it occurs sufficiently promptly to inform the public about the process while there is still time for them to petition their government to alter the process. The Statement of Work executed by Cyber Ninjas contemplates that the auditors will be contacting individual voters to ask about their voting histories in the first phase of the audit process. That phase is expected to be completed within 20 days, after which point the auditors will begin reviewing paper ballots.6 Disclosure of records after Cyber Ninjas has already begun handling ballots and contacting voters would be too late to prevent any potential harms resulting from those processes.
Statement of Noncommercial Purpose
This request is made for noncommercial purposes. American Oversight seeks records regarding the Arizona State Senate’s planned audit of Maricopa County’s 2020 election results. Records with the potential to shed light on this matter would contribute significantly to public understanding of operations of the government, including whether or to what extent partisan political considerations influenced the senate’s decision to pursue an additional audit, or guided the selection of the auditing team.7
Because American Oversight is a 501(c)(3) nonprofit, this request is not in American Oversight’s financial interest and is not made for a commercial purpose. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.8
Because this request is made for noncommercial purposes, American Oversight requests that any fees charged in connection with processing this request be limited to copying
6 See supra, note 4. 7 See supra, notes 1 & 2. 8 American Oversight currently has approximately 15,680 page likes on Facebook and 106,100 followers on Twitter. American Oversight, Facebook, https://www.facebook.com/weareoversight/ (last visited Apr. 5, 2021); American Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited Apr. 5, 2021).
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and postage charges, if applicable.9 Please notify American Oversight of any anticipated fees or costs in excess of $100 prior to incurring such costs or fees.
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following guidance regarding the scope of the records sought and the search and processing of records:
§ Please search all locations and systems likely to have responsive records, regardless of format, medium, or physical characteristics. For instance, if the request seeks “communications,” please search all locations likely to contain communications, including relevant hard-copy files, correspondence files, appropriate locations on hard drives and shared drives, emails, text messages or other direct messaging systems (such as iMessage, WhatsApp, Signal, or Twitter direct messages), voicemail messages, instant messaging systems such as Lync or ICQ, and shared messages systems such as Slack.
§ In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions.
§ Our request for records includes any attachments to those records or other materials enclosed with those records when they were previously transmitted. To the extent that an email is responsive to our request, our request includes all prior messages sent or received in that email chain, as well as any attachments to the email.
§ Please search all relevant records or systems containing records regarding agency business. Do not exclude records regarding agency business contained in files, email accounts, or devices in the personal custody of your officials, such as personal email accounts or text messages.
§ If any records are withheld in full or in part, pursuant to A.R.S. § 39- 121.01(D)(2), please provide an index of records or categories of records that have been withheld and the reasons the records or categories of records have been withheld.
9 A.R.S. § 39-121.01(D)(1); see also Hanania v. City of Tucson,128 Ariz. 135, 624 P.2d 332 (Ct. App. 1980). Furthermore, because this request is for noncommercial purposes, additional fees provided for under A.R.S. § 39-121.03(A) are not applicable and should not be assessed.
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§ In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If a request is denied in whole, please state specifically why it is not reasonable to segregate portions of the record for release.
§ Please take appropriate steps to ensure that records responsive to this request are not deleted by the agency before the completion of processing for this request. If records potentially responsive to this request are likely to be located on systems where they are subject to potential deletion, including on a scheduled basis, please take steps to prevent that deletion, including, as appropriate, by instituting a litigation hold on those records.
Conclusion
If you have any questions regarding how to construe this request for records or believe that further discussions regarding search and processing would facilitate a more efficient production of records of interest to American Oversight, please do not hesitate to contact American Oversight to discuss this request. American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and your agency can decrease the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in an electronic format by email. Alternatively, please provide responsive material in native format or in PDF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis.
We share a common mission to promote transparency in government. American Oversight looks forward to working with your agency on this request. If you do not understand any part of this request, please contact Khahilia Shaw at [email protected] or 202.539.6507.
Sincerely,
/s/ Khahilia Shaw Khahilia Shaw on behalf of American Oversight
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April 6, 2021
VIA EMAIL
Senator Karen Fann Arizona State Capitol Complex 1700 W Washington Street Phoenix, AZ 85007 [email protected]
Re: Public Records Request
Dear Senator Fann:
Pursuant to the Arizona Public Records Law, A.R.S. §§ 39-121 et seq., American Oversight makes the following request for records.
On February 23, 2021, Maricopa County announced the results of an independent audit into its November 3 elections results, confirming that ballots were tabulated accurately and that voting equipment and software were secure.1 Nevertheless, the Arizona State Senate has pursued an additional audit and recount, including the hand tabulation of more than two million votes. On March 31, 2021, Senate President Karen Fann announced that the audit team would be led by the firm Cyber Ninjas,2 whose founder has repeatedly circulated baseless accusations of widespread fraud in the 2020 elections.3
American Oversight seeks records with the potential to shed light on the Senate’s planned audit and recount of Maricopa County’s election results, including whether or to what extent partisan political interests informed the selection of auditors. As explained more fully below, prompt disclosure of these records is crucial to meaningfully inform the public about the details of the audit process before the auditors have begun contacting voters and reviewing ballots.
Requested Records
American Oversight requests that your office promptly produce the following records:
1 Jen Fifield, Maricopa County’s 2020 Election Votes Were Counted Correctly, More County Audits Show, Ariz. Republic (updated Feb. 23, 2021, 5:48 PM), https://www.azcentral.com/story/news/politics/elections/2021/02/23/maricopa- countys-election-audits-show-2020-votes-counted-correctly/4550644001/. 2 Jeremy Duda, Arizona Senate Hires a ‘Stop the Steal’ Advocate to Lead 2020 Election Audit, AZ Mirror (updated Apr. 1, 2021, 10:18 AM), https://www.azmirror.com/2021/03/31/arizona-senate-hires-a-stop-the-steal- advocate-to-lead-2020-election-audit/. 3 Id.
1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org
All electronic communications (including emails, email attachments, text messages, messages on messaging platforms, such as Slack, GChat or Google Hangouts, Lync, Skype, or WhatsApp) between (A) Senator Karen Fann, anyone communicating on their behalf, such as a scheduler or assistant, or anyone serving as their Chief of Staff, and (B) any of the individuals or entities listed below:
Specified Entities: 1. Kory Langhofer, or anyone communicating from an email address ending in @statecraftlaw.com 2. Anyone communicating on behalf of Cyber Ninjas, including Doug Logan, or anyone communicating in an email address ending in @cyberninjas.com 3. Anyone communicating on behalf of Wake Technology Services, or anyone communicating from an email address ending in @waketsi.com 4. Anyone communicating on behalf of CyFIR, or anyone communicating from an email address ending in @cyfir.com 5. Anyone communicating on behalf of Digital Discovery, or anyone communicating from an email address ending in @digitaldiscoveryesi.com 6. Former Arizona Secretary of State Ken Bennett 7. Bobby Piton 8. Jovan Pulitzer 9. Anyone communicating on behalf of Allied Security Operations Group, including Russell Ramsland, James Keet Lewis III, or Colonel Phil Waldron
Please provide all responsive records from November 3, 2020, through the date the search is conducted.
“Prompt” disclosure of these records is crucial to meaningfully inform the public on the details and scope of the audit process while the public still has an opportunity to affect the conduct of the process. The public has a legitimate interest in the manner in which the audit is conducted, as Cyber Ninjas itself has proposed to contact voters either by phone or in person to question their voting histories,4 a step that has been described as “harassment and intimidation” of voters.5 Further, the current audit—the second of its kind—raises potential questions concerning the integrity of certain state government officials, including the extent to which these actors seek to undermine public confidence in the electoral process.
Disclosure of the requested records is only meaningful if it occurs sufficiently promptly to inform the public about the process while there is still time for them to petition their government to alter the process. The Statement of Work
4 Statement of Work between Cyber Ninjas Inc. and Arizona State Senate, Mar. 31, 2021, https://www.documentcloud.org/documents/20536503-cyber-ninjas-sow- executed-33121. 5 Bob Christie, County Board to Senate: Find Another Spot to Recount Ballots, AP, Apr. 2, 2021, https://apnews.com/article/joe-biden-arizona-phoenix-elections-voting- 23a34828e8dadd190fe2f02555559b30.
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executed by Cyber Ninjas contemplates that the auditors will be contacting individual voters to ask about their voting histories in the first phase of the audit process. That phase is expected to be completed within 20 days, after which point the auditors will begin reviewing paper ballots.6 Disclosure of records after Cyber Ninjas has already begun handling ballots and contacting voters would be too late to prevent any potential harms resulting from those processes.
Statement of Noncommercial Purpose
This request is made for noncommercial purposes. American Oversight seeks records regarding the Arizona State Senate’s planned audit of Maricopa County’s 2020 election results. Records with the potential to shed light on this matter would contribute significantly to public understanding of operations of the government, including whether or to what extent partisan political considerations influenced the senate’s decision to pursue an additional audit, or guided the selection of the auditing team.7
Because American Oversight is a 501(c)(3) nonprofit, this request is not in American Oversight’s financial interest and is not made for a commercial purpose. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.8
Because this request is made for noncommercial purposes, American Oversight requests that any fees charged in connection with processing this request be limited to copying and postage charges, if applicable.9 Please notify American Oversight of any anticipated fees or costs in excess of $100 prior to incurring such costs or fees.
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following guidance regarding the scope of the records sought and the search and processing of records:
6 See supra, note 4. 7 See supra, notes 1 & 2. 8 American Oversight currently has approximately 15,680 page likes on Facebook and 106,100 followers on Twitter. American Oversight, Facebook, https://www.facebook.com/weareoversight/ (last visited Apr. 5, 2021); American Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited Apr. 5, 2021). 9 A.R.S. § 39-121.01(D)(1); see also Hanania v. City of Tucson,128 Ariz. 135, 624 P.2d 332 (Ct. App. 1980). Furthermore, because this request is for noncommercial purposes, additional fees provided for under A.R.S. § 39-121.03(A) are not applicable and should not be assessed.
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§ Please search all locations and systems likely to have responsive records, regardless of format, medium, or physical characteristics. For instance, if the request seeks “communications,” please search all locations likely to contain communications, including relevant hard-copy files, correspondence files, appropriate locations on hard drives and shared drives, emails, text messages or other direct messaging systems (such as iMessage, WhatsApp, Signal, or Twitter direct messages), voicemail messages, instant messaging systems such as Lync or ICQ, and shared messages systems such as Slack.
§ In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions.
§ Our request for records includes any attachments to those records or other materials enclosed with those records when they were previously transmitted. To the extent that an email is responsive to our request, our request includes all prior messages sent or received in that email chain, as well as any attachments to the email.
§ Please search all relevant records or systems containing records regarding agency business. Do not exclude records regarding agency business contained in files, email accounts, or devices in the personal custody of your officials, such as personal email accounts or text messages.
§ If any records are withheld in full or in part, pursuant to A.R.S. § 39- 121.01(D)(2), please provide an index of records or categories of records that have been withheld and the reasons the records or categories of records have been withheld.
§ In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If a request is denied in whole, please state specifically why it is not reasonable to segregate portions of the record for release.
§ Please take appropriate steps to ensure that records responsive to this request are not deleted by the agency before the completion of processing for this request. If records potentially responsive to this request are likely to be located on systems where they are subject to potential deletion, including on a scheduled basis, please take steps to prevent that deletion, including, as appropriate, by instituting a litigation hold on those records.
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Conclusion
If you have any questions regarding how to construe this request for records or believe that further discussions regarding search and processing would facilitate a more efficient production of records of interest to American Oversight, please do not hesitate to contact American Oversight to discuss this request. American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and your agency can decrease the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in an electronic format by email. Alternatively, please provide responsive material in native format or in PDF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis.
We share a common mission to promote transparency in government. American Oversight looks forward to working with your agency on this request. If you do not understand any part of this request, please contact Khahilia Shaw at [email protected] or 202.539.6507.
Sincerely,
/s/ Khahilia Shaw Khahilia Shaw on behalf of American Oversight
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April 6, 2021
VIA EMAIL
Senator Karen Fann Arizona State Capitol Complex 1700 W Washington Street Phoenix, AZ 85007 [email protected]
Re: Public Records Request
Dear Senator Fann:
Pursuant to the Arizona Public Records Law, A.R.S. §§ 39-121 et seq., American Oversight makes the following request for records.
On February 23, 2021, Maricopa County announced the results of an independent audit into its November 3 elections results, confirming that ballots were tabulated accurately and that voting equipment and software were secure.1 Nevertheless, the Arizona State Senate has pursued an additional audit and recount, including the hand tabulation of more than two million votes. On March 31, 2021, Senate President Karen Fann announced that the audit team would be led by the firm Cyber Ninjas,2 whose founder has repeatedly circulated baseless accusations of widespread fraud in the 2020 elections.3
American Oversight seeks records with the potential to shed light on the Senate’s planned audit and recount of Maricopa County’s election results, including whether or to what extent partisan political interests informed the selection of auditors. As explained more fully below, prompt disclosure of these records is crucial to meaningfully inform the public about the details of the audit process before the auditors have begun contacting voters and reviewing ballots.
Requested Records
American Oversight requests that your office promptly produce the following records:
1 Jen Fifield, Maricopa County’s 2020 Election Votes Were Counted Correctly, More County Audits Show, Ariz. Republic (updated Feb. 23, 2021, 5:48 PM), https://www.azcentral.com/story/news/politics/elections/2021/02/23/maricopa- countys-election-audits-show-2020-votes-counted-correctly/4550644001/. 2 Jeremy Duda, Arizona Senate Hires a ‘Stop the Steal’ Advocate to Lead 2020 Election Audit, AZ Mirror (updated Apr. 1, 2021, 10:18 AM), https://www.azmirror.com/2021/03/31/arizona-senate-hires-a-stop-the-steal- advocate-to-lead-2020-election-audit/. 3 Id.
1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org
All electronic communications (including emails, email attachments, text messages, messages on messaging platforms, such as Slack, GChat or Google Hangouts, Lync, Skype, or WhatsApp) between (A) Senator Karen Fann, anyone communicating on their behalf, such as a scheduler or assistant, or anyone serving as their Chief of Staff, and (B) any of the individuals or entities listed below:
Specified Entities: 1. Kelli Ward, Pam Kirby, Ray Ihly, Cyndi Love, or anyone communicating from an email address ending in @azgop.com or @azgop.org 2. Ronna McDaniel, Drew Secton, Brian Seitchik, or anyone communicating from an email address ending in @gop.com, @rnchq.com, or @rdpstrategies.com 3. Anyone communicating from an email address ending in senate.gov or mail.house.gov 4. Representative Paul Gosar, Thomas Van Flein, Leslie Foti, or anyone communicating from an email address ending in @drpaulgosar.com 5. Representative Andy Biggs, Kate LaBorde, Caroline Brennan, or anyone communicating from an email address ending in @biggsforcongress.com 6. Rudolph Giuliani, or anyone communicating on his behalf (such as Jo Ann Zafonte, Christianne Allen, Beau Wagner, or anyone communicating from an email address ending in @giulianisecurity.com, giulianipartners.com, or gdcillc.com) 7. Joseph diGenova, Victoria Toensing, or anyone communicating from an email address ending in @digenovatoensing.com 8. Sidney Powell, or anyone communicating from an email address ending in @federalappeals.com 9. Jenna Ellis, or anyone communicating from an email address ending in @falkirkcenter.com or @thomasmore.org
Please note that American Oversight does not seek, and that this request specifically excludes, the initial mailing of news clips or other mass-distribution emails. However, subsequent communications forwarding such emails are responsive to this request. In other words, for example, if Sen. Fann received a mass-distribution news clip email, that initial email would not be responsive to this request. However, if Sen. Fann forwarded that email to another individual with their own commentary, that subsequent message would be responsive to this request and should be produced.
Please provide all responsive records from November 3, 2020, through the date the search is conducted.
“Prompt” disclosure of these records is crucial to meaningfully inform the public on the details and scope of the audit process while the public still has an opportunity to affect the conduct of the process. The public has a legitimate interest in the manner in which the audit is conducted, as Cyber Ninjas itself has proposed to contact voters either by phone or in person to question their voting
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histories,4 a step that has been described as “harassment and intimidation” of voters.5 Further, the current audit—the second of its kind—raises potential questions concerning the integrity of certain state government officials, including the extent to which these actors seek to undermine public confidence in the electoral process.
Disclosure of the requested records is only meaningful if it occurs sufficiently promptly to inform the public about the process while there is still time for them to petition their government to alter the process. The Statement of Work executed by Cyber Ninjas contemplates that the auditors will be contacting individual voters to ask about their voting histories in the first phase of the audit process. That phase is expected to be completed within 20 days, after which point the auditors will begin reviewing paper ballots.6 Disclosure of records after Cyber Ninjas has already begun handling ballots and contacting voters would be too late to prevent any potential harms resulting from those processes.
Statement of Noncommercial Purpose
This request is made for noncommercial purposes. American Oversight seeks records regarding the Arizona State Senate’s planned audit of Maricopa County’s 2020 election results. Records with the potential to shed light on this matter would contribute significantly to public understanding of operations of the government, including whether or to what extent partisan political considerations influenced the senate’s decision to pursue an additional audit, or guided the selection of the auditing team.7
Because American Oversight is a 501(c)(3) nonprofit, this request is not in American Oversight’s financial interest and is not made for a commercial purpose. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes
4 Statement of Work between Cyber Ninjas Inc. and Arizona State Senate, Mar. 31, 2021, https://www.documentcloud.org/documents/20536503-cyber-ninjas-sow- executed-33121. 5 Bob Christie, County Board to Senate: Find Another Spot to Recount Ballots, AP, Apr. 2, 2021, https://apnews.com/article/joe-biden-arizona-phoenix-elections-voting- 23a34828e8dadd190fe2f02555559b30. 6 See supra, note 4. 7 See supra, notes 1 & 2.
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materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.8
Because this request is made for noncommercial purposes, American Oversight requests that any fees charged in connection with processing this request be limited to copying and postage charges, if applicable.9 Please notify American Oversight of any anticipated fees or costs in excess of $100 prior to incurring such costs or fees.
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following guidance regarding the scope of the records sought and the search and processing of records:
§ Please search all locations and systems likely to have responsive records, regardless of format, medium, or physical characteristics. For instance, if the request seeks “communications,” please search all locations likely to contain communications, including relevant hard-copy files, correspondence files, appropriate locations on hard drives and shared drives, emails, text messages or other direct messaging systems (such as iMessage, WhatsApp, Signal, or Twitter direct messages), voicemail messages, instant messaging systems such as Lync or ICQ, and shared messages systems such as Slack.
§ In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions.
§ Our request for records includes any attachments to those records or other materials enclosed with those records when they were previously transmitted. To the extent that an email is responsive to our request, our request includes all prior messages sent or received in that email chain, as well as any attachments to the email.
8 American Oversight currently has approximately 15,680 page likes on Facebook and 106,100 followers on Twitter. American Oversight, Facebook, https://www.facebook.com/weareoversight/ (last visited Apr. 5, 2021); American Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited Apr. 5, 2021). 9 A.R.S. § 39-121.01(D)(1); see also Hanania v. City of Tucson,128 Ariz. 135, 624 P.2d 332 (Ct. App. 1980). Furthermore, because this request is for noncommercial purposes, additional fees provided for under A.R.S. § 39-121.03(A) are not applicable and should not be assessed.
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§ Please search all relevant records or systems containing records regarding agency business. Do not exclude records regarding agency business contained in files, email accounts, or devices in the personal custody of your officials, such as personal email accounts or text messages.
§ If any records are withheld in full or in part, pursuant to A.R.S. § 39- 121.01(D)(2), please provide an index of records or categories of records that have been withheld and the reasons the records or categories of records have been withheld.
§ In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If a request is denied in whole, please state specifically why it is not reasonable to segregate portions of the record for release.
§ Please take appropriate steps to ensure that records responsive to this request are not deleted by the agency before the completion of processing for this request. If records potentially responsive to this request are likely to be located on systems where they are subject to potential deletion, including on a scheduled basis, please take steps to prevent that deletion, including, as appropriate, by instituting a litigation hold on those records.
Conclusion
If you have any questions regarding how to construe this request for records or believe that further discussions regarding search and processing would facilitate a more efficient production of records of interest to American Oversight, please do not hesitate to contact American Oversight to discuss this request. American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and your agency can decrease the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in an electronic format by email. Alternatively, please provide responsive material in native format or in PDF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis.
We share a common mission to promote transparency in government. American Oversight looks forward to working with your agency on this request. If you do not
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understand any part of this request, please contact Khahilia Shaw at [email protected] or 202.539.6507.
Sincerely,
/s/ Khahilia Shaw Khahilia Shaw on behalf of American Oversight
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April 6, 2021
VIA EMAIL
Senator Karen Fann Arizona State Capitol Complex 1700 W Washington Street Phoenix, AZ 85007 [email protected]
Re: Public Records Request
Dear Senator Fann:
Pursuant to the Arizona Public Records Law, A.R.S. §§ 39-121 et seq., American Oversight makes the following request for records.
On February 23, 2021, Maricopa County announced the results of an independent audit into its November 3 elections results, confirming that ballots were tabulated accurately and that voting equipment and software were secure.1 Nevertheless, the Arizona State Senate has pursued an additional audit and recount, including the hand tabulation of more than two million votes. On March 31, 2021, Senate President Karen Fann announced that the audit team would be led by the firm Cyber Ninjas,2 whose founder has repeatedly circulated baseless accusations of widespread fraud in the 2020 elections.3
American Oversight seeks records with the potential to shed light on the Senate’s planned audit and recount of Maricopa County’s election results, including whether or to what extent partisan political interests informed the selection of auditors. As explained more fully below, prompt disclosure of these records is crucial to meaningfully inform the public about the details of the audit process before the auditors have begun contacting voters and reviewing ballots.
Requested Records
American Oversight requests that your office promptly produce the following records:
1 Jen Fifield, Maricopa County’s 2020 Election Votes Were Counted Correctly, More County Audits Show, Ariz. Republic (updated Feb. 23, 2021, 5:48 PM), https://www.azcentral.com/story/news/politics/elections/2021/02/23/maricopa- countys-election-audits-show-2020-votes-counted-correctly/4550644001/. 2 Jeremy Duda, Arizona Senate Hires a ‘Stop the Steal’ Advocate to Lead 2020 Election Audit, AZ Mirror (updated Apr. 1, 2021, 10:18 AM), https://www.azmirror.com/2021/03/31/arizona-senate-hires-a-stop-the-steal- advocate-to-lead-2020-election-audit/. 3 Id.
1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org
All electronic communications (including emails, email attachments, text messages, messages on messaging platforms, such as Slack, GChat or Google Hangouts, Lync, Skype, or WhatsApp) between (A) Senator Karen Fann, anyone communicating on their behalf, such as a scheduler or assistant, or anyone serving as their Chief of Staff, and (B) any of the individuals or entities listed below:
Specified Entities: 1. Maricopa County Board of Supervisors Chairman, Jack Sellers 2. Board Vice Chairman, Bill Gates 3. Supervisor Clint Hickman 4. Supervisor Steve Chucri 5. Supervisor Steve Gallardo 6. Tom Liddy 7. Steve Tully 8. Maricopa County Elections Director, Scott Jarrett 9. Maricopa County Elections Director, Reynaldo Venezuela 10. Anyone communicating from an email address ending in @eac.gov
Please provide all responsive records from November 3, 2020, through the date the search is conducted.
“Prompt” disclosure of these records is crucial to meaningfully inform the public on the details and scope of the audit process while the public still has an opportunity to affect the conduct of the process. The public has a legitimate interest in the manner in which the audit is conducted, as Cyber Ninjas itself has proposed to contact voters either by phone or in person to question their voting histories,4 a step that has been described as “harassment and intimidation” of voters.5 Further, the current audit—the second of its kind—raises potential questions concerning the integrity of certain state government officials, including the extent to which these actors seek to undermine public confidence in the electoral process.
Disclosure of the requested records is only meaningful if it occurs sufficiently promptly to inform the public about the process while there is still time for them to petition their government to alter the process. The Statement of Work executed by Cyber Ninjas contemplates that the auditors will be contacting individual voters to ask about their voting histories in the first phase of the audit process. That phase is expected to be completed within 20 days, after which
4 Statement of Work between Cyber Ninjas Inc. and Arizona State Senate, Mar. 31, 2021, https://www.documentcloud.org/documents/20536503-cyber-ninjas-sow- executed-33121. 5 Bob Christie, County Board to Senate: Find Another Spot to Recount Ballots, AP, Apr. 2, 2021, https://apnews.com/article/joe-biden-arizona-phoenix-elections-voting- 23a34828e8dadd190fe2f02555559b30.
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point the auditors will begin reviewing paper ballots.6 Disclosure of records after Cyber Ninjas has already begun handling ballots and contacting voters would be too late to prevent any potential harms resulting from those processes.
Statement of Noncommercial Purpose
This request is made for noncommercial purposes. American Oversight seeks records regarding the Arizona State Senate’s planned audit of Maricopa County’s 2020 election results. Records with the potential to shed light on this matter would contribute significantly to public understanding of operations of the government, including whether or to what extent partisan political considerations influenced the senate’s decision to pursue an additional audit, or guided the selection of the auditing team.7
Because American Oversight is a 501(c)(3) nonprofit, this request is not in American Oversight’s financial interest and is not made for a commercial purpose. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.8
Because this request is made for noncommercial purposes, American Oversight requests that any fees charged in connection with processing this request be limited to copying and postage charges, if applicable.9 Please notify American Oversight of any anticipated fees or costs in excess of $100 prior to incurring such costs or fees.
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following guidance regarding the scope of the records sought and the search and processing of records:
§ Please search all locations and systems likely to have responsive records, regardless of format, medium, or physical characteristics. For instance, if the request seeks “communications,” please search all locations likely to contain
6 See supra, note 4. 7 See supra, notes 1 & 2. 8 American Oversight currently has approximately 15,680 page likes on Facebook and 106,100 followers on Twitter. American Oversight, Facebook, https://www.facebook.com/weareoversight/ (last visited Apr. 5, 2021); American Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited Apr. 5, 2021). 9 A.R.S. § 39-121.01(D)(1); see also Hanania v. City of Tucson,128 Ariz. 135, 624 P.2d 332 (Ct. App. 1980). Furthermore, because this request is for noncommercial purposes, additional fees provided for under A.R.S. § 39-121.03(A) are not applicable and should not be assessed.
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communications, including relevant hard-copy files, correspondence files, appropriate locations on hard drives and shared drives, emails, text messages or other direct messaging systems (such as iMessage, WhatsApp, Signal, or Twitter direct messages), voicemail messages, instant messaging systems such as Lync or ICQ, and shared messages systems such as Slack.
§ In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions.
§ Our request for records includes any attachments to those records or other materials enclosed with those records when they were previously transmitted. To the extent that an email is responsive to our request, our request includes all prior messages sent or received in that email chain, as well as any attachments to the email.
§ Please search all relevant records or systems containing records regarding agency business. Do not exclude records regarding agency business contained in files, email accounts, or devices in the personal custody of your officials, such as personal email accounts or text messages.
§ If any records are withheld in full or in part, pursuant to A.R.S. § 39- 121.01(D)(2), please provide an index of records or categories of records that have been withheld and the reasons the records or categories of records have been withheld.
§ In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If a request is denied in whole, please state specifically why it is not reasonable to segregate portions of the record for release.
§ Please take appropriate steps to ensure that records responsive to this request are not deleted by the agency before the completion of processing for this request. If records potentially responsive to this request are likely to be located on systems where they are subject to potential deletion, including on a scheduled basis, please take steps to prevent that deletion, including, as appropriate, by instituting a litigation hold on those records.
Conclusion
If you have any questions regarding how to construe this request for records or believe that further discussions regarding search and processing would facilitate a more efficient production of records of interest to American Oversight, please do not hesitate to contact American Oversight to discuss this request. American Oversight welcomes
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an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and your agency can decrease the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in an electronic format by email. Alternatively, please provide responsive material in native format or in PDF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis.
We share a common mission to promote transparency in government. American Oversight looks forward to working with your agency on this request. If you do not understand any part of this request, please contact Khahilia Shaw at [email protected] or 202.539.6507.
Sincerely,
/s/ Khahilia Shaw Khahilia Shaw on behalf of American Oversight
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April 6, 2021
VIA EMAIL
Senator Warren Petersen Arizona State Capitol Complex 1700 W Washington Street Phoenix, AZ 85007 [email protected]
Re: Public Records Request
Dear Senator Petersen:
Pursuant to the Arizona Public Records Law, A.R.S. §§ 39-121 et seq., American Oversight makes the following request for records.
On February 23, 2021, Maricopa County announced the results of an independent audit into its November 3 elections results, confirming that ballots were tabulated accurately and that voting equipment and software were secure.1 Nevertheless, the Arizona State Senate has pursued an additional audit and recount, including the hand tabulation of more than two million votes. On March 31, 2021, Senate President Karen Fann announced that the audit team would be led by the firm Cyber Ninjas,2 whose founder has repeatedly circulated baseless accusations of widespread fraud in the 2020 elections.3
American Oversight seeks records with the potential to shed light on the Senate’s planned audit and recount of Maricopa County’s election results, including whether or to what extent partisan political interests informed the selection of auditors. As explained more fully below, prompt disclosure of these records is crucial to meaningfully inform the public about the details of the audit process before the auditors have begun contacting voters and reviewing ballots.
1 Jen Fifield, Maricopa County’s 2020 Election Votes Were Counted Correctly, More County Audits Show, Ariz. Republic (updated Feb. 23, 2021, 5:48 PM), https://www.azcentral.com/story/news/politics/elections/2021/02/23/maricopa- countys-election-audits-show-2020-votes-counted-correctly/4550644001/. 2 Jeremy Duda, Arizona Senate Hires a ‘Stop the Steal’ Advocate to Lead 2020 Election Audit, AZ Mirror (updated Apr. 1, 2021, 10:18 AM), https://www.azmirror.com/2021/03/31/arizona-senate-hires-a-stop-the-steal- advocate-to-lead-2020-election-audit/. 3 Id.
1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org
Requested Records
American Oversight requests that your office promptly produce the following records:
1. A complete copy (including any attachments) of any contract, amendment, memorandum of understanding, statement of work, or other written agreement in possession of Senator Warren Petersen’s office regarding external entities providing services relevant to the planned audit of Maricopa County’s 2020 election results.
This request should be interpreted to include, at a minimum, agreements with Cyber Ninjas, Wake Technology Services, CyFIR, and Digital Discovery ESI, as well as agreements with formal or informal advisors, consultants, legal counsel, or other contractors or lessors involved in the planning, preparation, or execution of the audit.
Please provide all responsive records from November 3, 2020, through the date the search is conducted.
2. All records in possession of Senator Warren Petersen’s office pertaining to the selection of auditors, including but not limited to: solicitations for bids; records reflecting criteria for evaluating bids; complete copies of any bids received; or statements of rejection made to any bidders.
Please provide all responsive records from November 3, 2020, through the date the search is conducted.
“Prompt” disclosure of these records is crucial to meaningfully inform the public on the details and scope of the audit process while the public still has an opportunity to affect the conduct of the process. The public has a legitimate interest in the manner in which the audit is conducted, as Cyber Ninjas itself has proposed to contact voters either by phone or in person to question their voting histories,4 a step that has been described as “harassment and intimidation” of voters.5 Further, the current audit—the second of its kind—raises potential questions concerning the integrity of certain state government officials, including the extent to which these actors seek to undermine public confidence in the electoral process.
Disclosure of the requested records is only meaningful if it occurs sufficiently promptly to inform the public about the process while there is still time for them to petition their government to alter the process. The Statement of Work
4 Statement of Work between Cyber Ninjas Inc. and Arizona State Senate, Mar. 31, 2021, https://www.documentcloud.org/documents/20536503-cyber-ninjas-sow- executed-33121. 5 Bob Christie, County Board to Senate: Find Another Spot to Recount Ballots, Assoc. Press, Apr. 2, 2021, https://apnews.com/article/joe-biden-arizona-phoenix-elections-voting- 23a34828e8dadd190fe2f02555559b30.
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executed by Cyber Ninjas contemplates that the auditors will be contacting individual voters to ask about their voting histories in the first phase of the audit process. That phase is expected to be completed within 20 days, after which point the auditors will begin reviewing paper ballots.6 Disclosure of records after Cyber Ninjas has already begun handling ballots and contacting voters would be too late to prevent any potential harms resulting from those processes.
Statement of Noncommercial Purpose
This request is made for noncommercial purposes. American Oversight seeks records regarding the Arizona State Senate’s planned audit of Maricopa County’s 2020 election results. Records with the potential to shed light on this matter would contribute significantly to public understanding of operations of the government, including whether or to what extent partisan political considerations influenced the senate’s decision to pursue an additional audit, or guided the selection of the auditing team.7
Because American Oversight is a 501(c)(3) nonprofit, this request is not in American Oversight’s financial interest and is not made for a commercial purpose. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.8
Because this request is made for noncommercial purposes, American Oversight requests that any fees charged in connection with processing this request be limited to copying and postage charges, if applicable.9 Please notify American Oversight of any anticipated fees or costs in excess of $100 prior to incurring such costs or fees.
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following guidance regarding the scope of the records sought and the search and processing of records:
6 See supra, note 4. 7 See supra, notes 1 & 2. 8 American Oversight currently has approximately 15,680 page likes on Facebook and 106,100 followers on Twitter. American Oversight, Facebook, https://www.facebook.com/weareoversight/ (last visited Apr. 5, 2021); American Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited Apr. 5, 2021). 9 A.R.S. § 39-121.01(D)(1); see also Hanania v. City of Tucson,128 Ariz. 135, 624 P.2d 332 (Ct. App. 1980). Furthermore, because this request is for noncommercial purposes, additional fees provided for under A.R.S. § 39-121.03(A) are not applicable and should not be assessed.
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§ Please search all locations and systems likely to have responsive records, regardless of format, medium, or physical characteristics. For instance, if the request seeks “communications,” please search all locations likely to contain communications, including relevant hard-copy files, correspondence files, appropriate locations on hard drives and shared drives, emails, text messages or other direct messaging systems (such as iMessage, WhatsApp, Signal, or Twitter direct messages), voicemail messages, instant messaging systems such as Lync or ICQ, and shared messages systems such as Slack.
§ In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions.
§ Our request for records includes any attachments to those records or other materials enclosed with those records when they were previously transmitted. To the extent that an email is responsive to our request, our request includes all prior messages sent or received in that email chain, as well as any attachments to the email.
§ Please search all relevant records or systems containing records regarding agency business. Do not exclude records regarding agency business contained in files, email accounts, or devices in the personal custody of your officials, such as personal email accounts or text messages.
§ If any records are withheld in full or in part, pursuant to A.R.S. § 39- 121.01(D)(2), please provide an index of records or categories of records that have been withheld and the reasons the records or categories of records have been withheld.
§ In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If a request is denied in whole, please state specifically why it is not reasonable to segregate portions of the record for release.
§ Please take appropriate steps to ensure that records responsive to this request are not deleted by the agency before the completion of processing for this request. If records potentially responsive to this request are likely to be located on systems where they are subject to potential deletion, including on a scheduled basis, please take steps to prevent that deletion, including, as appropriate, by instituting a litigation hold on those records.
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Conclusion
If you have any questions regarding how to construe this request for records or believe that further discussions regarding search and processing would facilitate a more efficient production of records of interest to American Oversight, please do not hesitate to contact American Oversight to discuss this request. American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and your agency can decrease the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in an electronic format by email. Alternatively, please provide responsive material in native format or in PDF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis.
We share a common mission to promote transparency in government. American Oversight looks forward to working with your agency on this request. If you do not understand any part of this request, please contact Khahilia Shaw at [email protected] or 202.539.6507.
Sincerely,
/s/ Khahilia Shaw Khahilia Shaw on behalf of American Oversight
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April 6, 2021
VIA EMAIL
Senator Warren Petersen Arizona State Capitol Complex 1700 W Washington Street Phoenix, AZ 85007 [email protected]
Re: Public Records Request
Dear Senator Petersen:
Pursuant to the Arizona Public Records Law, A.R.S. §§ 39-121 et seq., American Oversight makes the following request for records.
On February 23, 2021, Maricopa County announced the results of an independent audit into its November 3 elections results, confirming that ballots were tabulated accurately and that voting equipment and software were secure.1 Nevertheless, the Arizona State Senate has pursued an additional audit and recount, including the hand tabulation of more than two million votes. On March 31, 2021, Senate President Karen Fann announced that the audit team would be led by the firm Cyber Ninjas,2 whose founder has repeatedly circulated baseless accusations of widespread fraud in the 2020 elections.3
American Oversight seeks records with the potential to shed light on the Senate’s planned audit and recount of Maricopa County’s election results, including whether or to what extent partisan political interests informed the selection of auditors. As explained more fully below, prompt disclosure of these records is crucial to meaningfully inform the public about the details of the audit process before the auditors have begun contacting voters and reviewing ballots.
Requested Records
American Oversight requests that your office promptly produce the following records:
1 Jen Fifield, Maricopa County’s 2020 Election Votes Were Counted Correctly, More County Audits Show, Ariz. Republic (updated Feb. 23, 2021, 5:48 PM), https://www.azcentral.com/story/news/politics/elections/2021/02/23/maricopa- countys-election-audits-show-2020-votes-counted-correctly/4550644001/. 2 Jeremy Duda, Arizona Senate Hires a ‘Stop the Steal’ Advocate to Lead 2020 Election Audit, AZ Mirror (updated Apr. 1, 2021, 10:18 AM), https://www.azmirror.com/2021/03/31/arizona-senate-hires-a-stop-the-steal- advocate-to-lead-2020-election-audit/. 3 Id.
1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org
All records (including emails, email attachments, text messages, messages on messaging platforms (such as Slack, GChat or Google Hangouts, Lync, Skype, or WhatsApp) telephone call logs, calendar invitations, calendar entries, any handwritten or electronic notes taken during any oral communications, summaries of any oral communications, or other materials) sent or received by Senator Warren Petersen, anyone communicating on their behalf, such as a scheduler or assistant, or anyone serving as their Chief of Staff, regarding the planning or execution of the Arizona State Senate’s audit of Maricopa County’s elections results.
This request should be interpreted to include, but not be limited to, communications concerning: the Senate’s decision to subpoena ballots and subsequent litigation; the bidding process for selecting an auditing team; the scope and conduct of the planned recount, including specific provisions such as hand counting ballots or questioning individual voters; the acquisition of confidential voter data or access to voter files; and/or discussion of alleged fraud as justification for the planned recount.
Please note that American Oversight does not seek, and that this request specifically excludes, the initial mailing of news clips or other mass-distribution emails. However, subsequent communications forwarding such emails are responsive to this request. In other words, for example, if Sen. Petersen received a mass-distribution news clip email, that initial email would not be responsive to this request. However, if Sen. Petersen forwarded that email to another individual with their own commentary, that subsequent message would be responsive to this request and should be produced.
Please provide all responsive records from November 3, 2020, through the date the search is conducted.
“Prompt” disclosure of these records is crucial to meaningfully inform the public on the details and scope of the audit process while the public still has an opportunity to affect the conduct of the process. The public has a legitimate interest in the manner in which the audit is conducted, as Cyber Ninjas itself has proposed to contact voters either by phone or in person to question their voting histories,4 a step that has been described as “harassment and intimidation” of voters.5 Further, the current audit—the second of its kind—raises potential questions concerning the integrity of certain state government officials, including the extent to which these actors seek to undermine public confidence in the electoral process.
4 Statement of Work between Cyber Ninjas Inc. and Arizona State Senate, Mar. 31, 2021, https://www.documentcloud.org/documents/20536503-cyber-ninjas-sow- executed-33121. 5 Bob Christie, County Board to Senate: Find Another Spot to Recount Ballots, AP, Apr. 2, 2021, https://apnews.com/article/joe-biden-arizona-phoenix-elections-voting- 23a34828e8dadd190fe2f02555559b30.
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Disclosure of the requested records is only meaningful if it occurs sufficiently promptly to inform the public about the process while there is still time for them to petition their government to alter the process. The Statement of Work executed by Cyber Ninjas contemplates that the auditors will be contacting individual voters to ask about their voting histories in the first phase of the audit process. That phase is expected to be completed within 20 days, after which point the auditors will begin reviewing paper ballots.6 Disclosure of records after Cyber Ninjas has already begun handling ballots and contacting voters would be too late to prevent any potential harms resulting from those processes.
Statement of Noncommercial Purpose
This request is made for noncommercial purposes. American Oversight seeks records regarding the Arizona State Senate’s planned audit of Maricopa County’s 2020 election results. Records with the potential to shed light on this matter would contribute significantly to public understanding of operations of the government, including whether or to what extent partisan political considerations influenced the senate’s decision to pursue an additional audit, or guided the selection of the auditing team.7
Because American Oversight is a 501(c)(3) nonprofit, this request is not in American Oversight’s financial interest and is not made for a commercial purpose. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.8
Because this request is made for noncommercial purposes, American Oversight requests that any fees charged in connection with processing this request be limited to copying and postage charges, if applicable.9 Please notify American Oversight of any anticipated fees or costs in excess of $100 prior to incurring such costs or fees.
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following guidance regarding the scope of the records sought and the search and processing of records:
6 See supra, note 4. 7 See supra, notes 1 & 2. 8 American Oversight currently has approximately 15,680 page likes on Facebook and 106,100 followers on Twitter. American Oversight, Facebook, https://www.facebook.com/weareoversight/ (last visited Apr. 5, 2021); American Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited Apr. 5, 2021). 9 A.R.S. § 39-121.01(D)(1); see also Hanania v. City of Tucson,128 Ariz. 135, 624 P.2d 332 (Ct. App. 1980). Furthermore, because this request is for noncommercial purposes,
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§ Please search all locations and systems likely to have responsive records, regardless of format, medium, or physical characteristics. For instance, if the request seeks “communications,” please search all locations likely to contain communications, including relevant hard-copy files, correspondence files, appropriate locations on hard drives and shared drives, emails, text messages or other direct messaging systems (such as iMessage, WhatsApp, Signal, or Twitter direct messages), voicemail messages, instant messaging systems such as Lync or ICQ, and shared messages systems such as Slack.
§ In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions.
§ Our request for records includes any attachments to those records or other materials enclosed with those records when they were previously transmitted. To the extent that an email is responsive to our request, our request includes all prior messages sent or received in that email chain, as well as any attachments to the email.
§ Please search all relevant records or systems containing records regarding agency business. Do not exclude records regarding agency business contained in files, email accounts, or devices in the personal custody of your officials, such as personal email accounts or text messages.
§ If any records are withheld in full or in part, pursuant to A.R.S. § 39- 121.01(D)(2), please provide an index of records or categories of records that have been withheld and the reasons the records or categories of records have been withheld.
§ In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If a request is denied in whole, please state specifically why it is not reasonable to segregate portions of the record for release.
§ Please take appropriate steps to ensure that records responsive to this request are not deleted by the agency before the completion of processing for this request. If records potentially responsive to this request are likely to be located on systems where they are subject to potential deletion, including on a scheduled
additional fees provided for under A.R.S. § 39-121.03(A) are not applicable and should not be assessed.
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basis, please take steps to prevent that deletion, including, as appropriate, by instituting a litigation hold on those records.
Conclusion
If you have any questions regarding how to construe this request for records or believe that further discussions regarding search and processing would facilitate a more efficient production of records of interest to American Oversight, please do not hesitate to contact American Oversight to discuss this request. American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and your agency can decrease the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in an electronic format by email. Alternatively, please provide responsive material in native format or in PDF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis.
We share a common mission to promote transparency in government. American Oversight looks forward to working with your agency on this request. If you do not understand any part of this request, please contact Khahilia Shaw at [email protected] or 202.539.6507.
Sincerely,
/s/ Khahilia Shaw Khahilia Shaw on behalf of American Oversight
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April 6, 2021
VIA EMAIL
Senator Warren Petersen Arizona State Capitol Complex 1700 W Washington Street Phoenix, AZ 85007 [email protected]
Re: Public Records Request
Dear Senator Petersen:
Pursuant to the Arizona Public Records Law, A.R.S. §§ 39-121 et seq., American Oversight makes the following request for records.
On February 23, 2021, Maricopa County announced the results of an independent audit into its November 3 elections results, confirming that ballots were tabulated accurately and that voting equipment and software were secure.1 Nevertheless, the Arizona State Senate has pursued an additional audit and recount, including the hand tabulation of more than two million votes. On March 31, 2021, Senate President Karen Fann announced that the audit team would be led by the firm Cyber Ninjas,2 whose founder has repeatedly circulated baseless accusations of widespread fraud in the 2020 elections.3
American Oversight seeks records with the potential to shed light on the Senate’s planned audit and recount of Maricopa County’s election results, including whether or to what extent partisan political interests informed the selection of auditors. As explained more fully below, prompt disclosure of these records is crucial to meaningfully inform the public about the details of the audit process before the auditors have begun contacting voters and reviewing ballots.
Requested Records
American Oversight requests that your office promptly produce the following records:
1 Jen Fifield, Maricopa County’s 2020 Election Votes Were Counted Correctly, More County Audits Show, Ariz. Republic (updated Feb. 23, 2021, 5:48 PM), https://www.azcentral.com/story/news/politics/elections/2021/02/23/maricopa- countys-election-audits-show-2020-votes-counted-correctly/4550644001/. 2 Jeremy Duda, Arizona Senate Hires a ‘Stop the Steal’ Advocate to Lead 2020 Election Audit, AZ Mirror (updated Apr. 1, 2021, 10:18 AM), https://www.azmirror.com/2021/03/31/arizona-senate-hires-a-stop-the-steal- advocate-to-lead-2020-election-audit/. 3 Id.
1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org
All electronic communications (including emails, email attachments, text messages, messages on messaging platforms, such as Slack, GChat or Google Hangouts, Lync, Skype, or WhatsApp) between (A) Senator Warren Petersen, anyone communicating on their behalf, such as a scheduler or assistant, or anyone serving as their Chief of Staff, and (B) any of the individuals or entities listed below:
Specified Entities: 1. Kory Langhofer, or anyone communicating from an email address ending in @statecraftlaw.com 2. Anyone communicating on behalf of Cyber Ninjas, including Doug Logan, or anyone communicating in an email address ending in @cyberninjas.com 3. Anyone communicating on behalf of Wake Technology Services, or anyone communicating from an email address ending in @waketsi.com 4. Anyone communicating on behalf of CyFIR, or anyone communicating from an email address ending in @cyfir.com 5. Anyone communicating on behalf of Digital Discovery, or anyone communicating from an email address ending in @digitaldiscoveryesi.com 6. Former Arizona Secretary of State Ken Bennett 7. Bobby Piton 8. Jovan Pulitzer 9. Anyone communicating on behalf of Allied Security Operations Group, including Russell Ramsland, James Keet Lewis III, or Colonel Phil Waldron
Please provide all responsive records from November 3, 2020, through the date the search is conducted. “Prompt” disclosure of these records is crucial to meaningfully inform the public on the details and scope of the audit process while the public still has an opportunity to affect the conduct of the process. The public has a legitimate interest in the manner in which the audit is conducted, as Cyber Ninjas itself has proposed to contact voters either by phone or in person to question their voting histories,4 a step that has been described as “harassment and intimidation” of voters.5 Further, the current audit—the second of its kind—raises potential questions concerning the integrity of certain state government officials, including the extent to which these actors seek to undermine public confidence in the electoral process.
Disclosure of the requested records is only meaningful if it occurs sufficiently promptly to inform the public about the process while there is still time for them to petition their government to alter the process. The Statement of Work
4 Statement of Work between Cyber Ninjas Inc. and Arizona State Senate, Mar. 31, 2021, https://www.documentcloud.org/documents/20536503-cyber-ninjas-sow- executed-33121. 5 Bob Christie, County Board to Senate: Find Another Spot to Recount Ballots, AP, Apr. 2, 2021, https://apnews.com/article/joe-biden-arizona-phoenix-elections-voting- 23a34828e8dadd190fe2f02555559b30.
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executed by Cyber Ninjas contemplates that the auditors will be contacting individual voters to ask about their voting histories in the first phase of the audit process. That phase is expected to be completed within 20 days, after which point the auditors will begin reviewing paper ballots.6 Disclosure of records after Cyber Ninjas has already begun handling ballots and contacting voters would be too late to prevent any potential harms resulting from those processes.
Statement of Noncommercial Purpose
This request is made for noncommercial purposes. American Oversight seeks records regarding the Arizona State Senate’s planned audit of Maricopa County’s 2020 election results. Records with the potential to shed light on this matter would contribute significantly to public understanding of operations of the government, including whether or to what extent partisan political considerations influenced the senate’s decision to pursue an additional audit, or guided the selection of the auditing team.7
Because American Oversight is a 501(c)(3) nonprofit, this request is not in American Oversight’s financial interest and is not made for a commercial purpose. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.8
Because this request is made for noncommercial purposes, American Oversight requests that any fees charged in connection with processing this request be limited to copying and postage charges, if applicable.9 Please notify American Oversight of any anticipated fees or costs in excess of $100 prior to incurring such costs or fees.
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following guidance regarding the scope of the records sought and the search and processing of records:
6 See supra, note 4. 7 See supra, notes 1 & 2. 8 American Oversight currently has approximately 15,680 page likes on Facebook and 106,100 followers on Twitter. American Oversight, Facebook, https://www.facebook.com/weareoversight/ (last visited Apr. 5, 2021); American Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited Apr. 5, 2021). 9 A.R.S. § 39-121.01(D)(1); see also Hanania v. City of Tucson,128 Ariz. 135, 624 P.2d 332 (Ct. App. 1980). Furthermore, because this request is for noncommercial purposes, additional fees provided for under A.R.S. § 39-121.03(A) are not applicable and should not be assessed.
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§ Please search all locations and systems likely to have responsive records, regardless of format, medium, or physical characteristics. For instance, if the request seeks “communications,” please search all locations likely to contain communications, including relevant hard-copy files, correspondence files, appropriate locations on hard drives and shared drives, emails, text messages or other direct messaging systems (such as iMessage, WhatsApp, Signal, or Twitter direct messages), voicemail messages, instant messaging systems such as Lync or ICQ, and shared messages systems such as Slack.
§ In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions.
§ Our request for records includes any attachments to those records or other materials enclosed with those records when they were previously transmitted. To the extent that an email is responsive to our request, our request includes all prior messages sent or received in that email chain, as well as any attachments to the email.
§ Please search all relevant records or systems containing records regarding agency business. Do not exclude records regarding agency business contained in files, email accounts, or devices in the personal custody of your officials, such as personal email accounts or text messages.
§ If any records are withheld in full or in part, pursuant to A.R.S. § 39- 121.01(D)(2), please provide an index of records or categories of records that have been withheld and the reasons the records or categories of records have been withheld.
§ In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If a request is denied in whole, please state specifically why it is not reasonable to segregate portions of the record for release.
§ Please take appropriate steps to ensure that records responsive to this request are not deleted by the agency before the completion of processing for this request. If records potentially responsive to this request are likely to be located on systems where they are subject to potential deletion, including on a scheduled basis, please take steps to prevent that deletion, including, as appropriate, by instituting a litigation hold on those records.
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Conclusion
If you have any questions regarding how to construe this request for records or believe that further discussions regarding search and processing would facilitate a more efficient production of records of interest to American Oversight, please do not hesitate to contact American Oversight to discuss this request. American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and your agency can decrease the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in an electronic format by email. Alternatively, please provide responsive material in native format or in PDF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis.
We share a common mission to promote transparency in government. American Oversight looks forward to working with your agency on this request. If you do not understand any part of this request, please contact Khahilia Shaw at [email protected] or 202.539.6507.
Sincerely,
/s/ Khahilia Shaw Khahilia Shaw on behalf of American Oversight
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April 6, 2021
VIA EMAIL
Senator Warren Petersen Arizona State Capitol Complex 1700 W Washington Street Phoenix, AZ 85007 [email protected]
Re: Public Records Request
Dear Senator Petersen:
Pursuant to the Arizona Public Records Law, A.R.S. §§ 39-121 et seq., American Oversight makes the following request for records.
On February 23, 2021, Maricopa County announced the results of an independent audit into its November 3 elections results, confirming that ballots were tabulated accurately and that voting equipment and software were secure.1 Nevertheless, the Arizona State Senate has pursued an additional audit and recount, including the hand tabulation of more than two million votes. On March 31, 2021, Senate President Karen Fann announced that the audit team would be led by the firm Cyber Ninjas,2 whose founder has repeatedly circulated baseless accusations of widespread fraud in the 2020 elections.3
American Oversight seeks records with the potential to shed light on the Senate’s planned audit and recount of Maricopa County’s election results, including whether or to what extent partisan political interests informed the selection of auditors. As explained more fully below, prompt disclosure of these records is crucial to meaningfully inform the public about the details of the audit process before the auditors have begun contacting voters and reviewing ballots.
Requested Records
American Oversight requests that your office promptly produce the following records:
1 Jen Fifield, Maricopa County’s 2020 Election Votes Were Counted Correctly, More County Audits Show, Ariz. Republic (updated Feb. 23, 2021, 5:48 PM), https://www.azcentral.com/story/news/politics/elections/2021/02/23/maricopa- countys-election-audits-show-2020-votes-counted-correctly/4550644001/. 2 Jeremy Duda, Arizona Senate Hires a ‘Stop the Steal’ Advocate to Lead 2020 Election Audit, AZ Mirror (updated Apr. 1, 2021, 10:18 AM), https://www.azmirror.com/2021/03/31/arizona-senate-hires-a-stop-the-steal- advocate-to-lead-2020-election-audit/. 3 Id.
1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org
All electronic communications (including emails, email attachments, text messages, messages on messaging platforms, such as Slack, GChat or Google Hangouts, Lync, Skype, or WhatsApp) between (A) Senator Warren Petersen, anyone communicating on their behalf, such as a scheduler or assistant, or anyone serving as their Chief of Staff, and (B) any of the individuals or entities listed below:
Specified Entities: 1. Kelli Ward, Pam Kirby, Ray Ihly, Cyndi Love, or anyone communicating from an email address ending in @azgop.com or @azgop.org 2. Ronna McDaniel, Drew Secton, Brian Seitchik, or anyone communicating from an email address ending in @gop.com, @rnchq.com, or @rdpstrategies.com 3. Anyone communicating from an email address ending in senate.gov or mail.house.gov 4. Representative Paul Gosar, Thomas Van Flein, Leslie Foti, or anyone communicating from an email address ending in @drpaulgosar.com 5. Representative Andy Biggs, Kate LaBorde, Caroline Brennan, or anyone communicating from an email address ending in @biggsforcongress.com 6. Rudolph Giuliani, or anyone communicating on his behalf (such as Jo Ann Zafonte, Christianne Allen, Beau Wagner, or anyone communicating from an email address ending in @giulianisecurity.com, giulianipartners.com, or gdcillc.com) 7. Joseph diGenova, Victoria Toensing, or anyone communicating from an email address ending in @digenovatoensing.com 8. Sidney Powell, or anyone communicating from an email address ending in @federalappeals.com 9. Jenna Ellis, or anyone communicating from an email address ending in @falkirkcenter.com or @thomasmore.org
Please note that American Oversight does not seek, and that this request specifically excludes, the initial mailing of news clips or other mass-distribution emails. However, subsequent communications forwarding such emails are responsive to this request. In other words, for example, if Sen. Petersen received a mass-distribution news clip email, that initial email would not be responsive to this request. However, if Sen. Petersen forwarded that email to another individual with their own commentary, that subsequent message would be responsive to this request and should be produced.
Please provide all responsive records from November 3, 2020, through the date the search is conducted.
“Prompt” disclosure of these records is crucial to meaningfully inform the public on the details and scope of the audit process while the public still has an opportunity to affect the conduct of the process. The public has a legitimate interest in the manner in which the audit is conducted, as Cyber Ninjas itself has proposed to contact voters either by phone or in person to question their voting
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histories,4 a step that has been described as “harassment and intimidation” of voters.5 Further, the current audit—the second of its kind—raises potential questions concerning the integrity of certain state government officials, including the extent to which these actors seek to undermine public confidence in the electoral process.
Disclosure of the requested records is only meaningful if it occurs sufficiently promptly to inform the public about the process while there is still time for them to petition their government to alter the process. The Statement of Work executed by Cyber Ninjas contemplates that the auditors will be contacting individual voters to ask about their voting histories in the first phase of the audit process. That phase is expected to be completed within 20 days, after which point the auditors will begin reviewing paper ballots.6 Disclosure of records after Cyber Ninjas has already begun handling ballots and contacting voters would be too late to prevent any potential harms resulting from those processes.
Statement of Noncommercial Purpose
This request is made for noncommercial purposes. American Oversight seeks records regarding the Arizona State Senate’s planned audit of Maricopa County’s 2020 election results. Records with the potential to shed light on this matter would contribute significantly to public understanding of operations of the government, including whether or to what extent partisan political considerations influenced the senate’s decision to pursue an additional audit, or guided the selection of the auditing team.7
Because American Oversight is a 501(c)(3) nonprofit, this request is not in American Oversight’s financial interest and is not made for a commercial purpose. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes
4 Statement of Work between Cyber Ninjas Inc. and Arizona State Senate, Mar. 31, 2021, https://www.documentcloud.org/documents/20536503-cyber-ninjas-sow- executed-33121. 5 Bob Christie, County Board to Senate: Find Another Spot to Recount Ballots, AP, Apr. 2, 2021, https://apnews.com/article/joe-biden-arizona-phoenix-elections-voting- 23a34828e8dadd190fe2f02555559b30. 6 See supra, note 4. 7 See supra, notes 1 & 2.
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materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.8
Because this request is made for noncommercial purposes, American Oversight requests that any fees charged in connection with processing this request be limited to copying and postage charges, if applicable.9 Please notify American Oversight of any anticipated fees or costs in excess of $100 prior to incurring such costs or fees.
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following guidance regarding the scope of the records sought and the search and processing of records:
§ Please search all locations and systems likely to have responsive records, regardless of format, medium, or physical characteristics. For instance, if the request seeks “communications,” please search all locations likely to contain communications, including relevant hard-copy files, correspondence files, appropriate locations on hard drives and shared drives, emails, text messages or other direct messaging systems (such as iMessage, WhatsApp, Signal, or Twitter direct messages), voicemail messages, instant messaging systems such as Lync or ICQ, and shared messages systems such as Slack.
§ In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions.
§ Our request for records includes any attachments to those records or other materials enclosed with those records when they were previously transmitted. To the extent that an email is responsive to our request, our request includes all prior messages sent or received in that email chain, as well as any attachments to the email.
8 American Oversight currently has approximately 15,680 page likes on Facebook and 106,100 followers on Twitter. American Oversight, Facebook, https://www.facebook.com/weareoversight/ (last visited Apr. 5, 2021); American Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited Apr. 5, 2021). 9 A.R.S. § 39-121.01(D)(1); see also Hanania v. City of Tucson,128 Ariz. 135, 624 P.2d 332 (Ct. App. 1980). Furthermore, because this request is for noncommercial purposes, additional fees provided for under A.R.S. § 39-121.03(A) are not applicable and should not be assessed.
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§ Please search all relevant records or systems containing records regarding agency business. Do not exclude records regarding agency business contained in files, email accounts, or devices in the personal custody of your officials, such as personal email accounts or text messages.
§ If any records are withheld in full or in part, pursuant to A.R.S. § 39- 121.01(D)(2), please provide an index of records or categories of records that have been withheld and the reasons the records or categories of records have been withheld.
§ In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If a request is denied in whole, please state specifically why it is not reasonable to segregate portions of the record for release.
§ Please take appropriate steps to ensure that records responsive to this request are not deleted by the agency before the completion of processing for this request. If records potentially responsive to this request are likely to be located on systems where they are subject to potential deletion, including on a scheduled basis, please take steps to prevent that deletion, including, as appropriate, by instituting a litigation hold on those records.
Conclusion
If you have any questions regarding how to construe this request for records or believe that further discussions regarding search and processing would facilitate a more efficient production of records of interest to American Oversight, please do not hesitate to contact American Oversight to discuss this request. American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and your agency can decrease the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in an electronic format by email. Alternatively, please provide responsive material in native format or in PDF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis.
We share a common mission to promote transparency in government. American Oversight looks forward to working with your agency on this request. If you do not
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understand any part of this request, please contact Khahilia Shaw at [email protected] or 202.539.6507.
Sincerely,
/s/ Khahilia Shaw Khahilia Shaw on behalf of American Oversight
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April 6, 2021
VIA EMAIL
Senator Warren Petersen Arizona State Capitol Complex 1700 W Washington Street Phoenix, AZ 85007 [email protected]
Re: Public Records Request
Dear Senator Petersen:
Pursuant to the Arizona Public Records Law, A.R.S. §§ 39-121 et seq., American Oversight makes the following request for records.
On February 23, 2021, Maricopa County announced the results of an independent audit into its November 3 elections results, confirming that ballots were tabulated accurately and that voting equipment and software were secure.1 Nevertheless, the Arizona State Senate has pursued an additional audit and recount, including the hand tabulation of more than two million votes. On March 31, 2021, Senate President Karen Fann announced that the audit team would be led by the firm Cyber Ninjas,2 whose founder has repeatedly circulated baseless accusations of widespread fraud in the 2020 elections.3
American Oversight seeks records with the potential to shed light on the Senate’s planned audit and recount of Maricopa County’s election results, including whether or to what extent partisan political interests informed the selection of auditors. As explained more fully below, prompt disclosure of these records is crucial to meaningfully inform the public about the details of the audit process before the auditors have begun contacting voters and reviewing ballots.
Requested Records
American Oversight requests that your office promptly produce the following records:
1 Jen Fifield, Maricopa County’s 2020 Election Votes Were Counted Correctly, More County Audits Show, Ariz. Republic (updated Feb. 23, 2021, 5:48 PM), https://www.azcentral.com/story/news/politics/elections/2021/02/23/maricopa- countys-election-audits-show-2020-votes-counted-correctly/4550644001/. 2 Jeremy Duda, Arizona Senate Hires a ‘Stop the Steal’ Advocate to Lead 2020 Election Audit, AZ Mirror (updated Apr. 1, 2021, 10:18 AM), https://www.azmirror.com/2021/03/31/arizona-senate-hires-a-stop-the-steal- advocate-to-lead-2020-election-audit/. 3 Id.
1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org
All electronic communications (including emails, email attachments, text messages, messages on messaging platforms, such as Slack, GChat or Google Hangouts, Lync, Skype, or WhatsApp) between (A) Senator Warren Petersen, anyone communicating on their behalf, such as a scheduler or assistant, or anyone serving as their Chief of Staff, and (B) any of the individuals or entities listed below:
Specified Entities: 1. Maricopa County Board of Supervisors Chairman, Jack Sellers 2. Board Vice Chairman, Bill Gates 3. Supervisor Clint Hickman 4. Supervisor Steve Chucri 5. Supervisor Steve Gallardo 6. Tom Liddy 7. Steve Tully 8. Maricopa County Elections Director, Scott Jarrett 9. Maricopa County Elections Director, Reynaldo Venezuela 10. Anyone communicating from an email address ending in @eac.gov
Please provide all responsive records from November 3, 2020, through the date the search is conducted.
“Prompt” disclosure of these records is crucial to meaningfully inform the public on the details and scope of the audit process while the public still has an opportunity to affect the conduct of the process. The public has a legitimate interest in the manner in which the audit is conducted, as Cyber Ninjas itself has proposed to contact voters either by phone or in person to question their voting histories,4 a step that has been described as “harassment and intimidation” of voters.5 Further, the current audit—the second of its kind—raises potential questions concerning the integrity of certain state government officials, including the extent to which these actors seek to undermine public confidence in the electoral process.
Disclosure of the requested records is only meaningful if it occurs sufficiently promptly to inform the public about the process while there is still time for them to petition their government to alter the process. The Statement of Work executed by Cyber Ninjas contemplates that the auditors will be contacting individual voters to ask about their voting histories in the first phase of the audit process. That phase is expected to be completed within 20 days, after which
4 Statement of Work between Cyber Ninjas Inc. and Arizona State Senate, Mar. 31, 2021, https://www.documentcloud.org/documents/20536503-cyber-ninjas-sow- executed-33121. 5 Bob Christie, County Board to Senate: Find Another Spot to Recount Ballots, AP, Apr. 2, 2021, https://apnews.com/article/joe-biden-arizona-phoenix-elections-voting- 23a34828e8dadd190fe2f02555559b30.
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point the auditors will begin reviewing paper ballots.6 Disclosure of records after Cyber Ninjas has already begun handling ballots and contacting voters would be too late to prevent any potential harms resulting from those processes.
Statement of Noncommercial Purpose
This request is made for noncommercial purposes. American Oversight seeks records regarding the Arizona State Senate’s planned audit of Maricopa County’s 2020 election results. Records with the potential to shed light on this matter would contribute significantly to public understanding of operations of the government, including whether or to what extent partisan political considerations influenced the senate’s decision to pursue an additional audit, or guided the selection of the auditing team.7
Because American Oversight is a 501(c)(3) nonprofit, this request is not in American Oversight’s financial interest and is not made for a commercial purpose. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.8
Because this request is made for noncommercial purposes, American Oversight requests that any fees charged in connection with processing this request be limited to copying and postage charges, if applicable.9 Please notify American Oversight of any anticipated fees or costs in excess of $100 prior to incurring such costs or fees.
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following guidance regarding the scope of the records sought and the search and processing of records:
§ Please search all locations and systems likely to have responsive records, regardless of format, medium, or physical characteristics. For instance, if the request seeks “communications,” please search all locations likely to contain
6 See supra, note 4. 7 See supra, notes 1 & 2. 8 American Oversight currently has approximately 15,680 page likes on Facebook and 106,100 followers on Twitter. American Oversight, Facebook, https://www.facebook.com/weareoversight/ (last visited Apr. 5, 2021); American Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited Apr. 5, 2021). 9 A.R.S. § 39-121.01(D)(1); see also Hanania v. City of Tucson,128 Ariz. 135, 624 P.2d 332 (Ct. App. 1980). Furthermore, because this request is for noncommercial purposes, additional fees provided for under A.R.S. § 39-121.03(A) are not applicable and should not be assessed.
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communications, including relevant hard-copy files, correspondence files, appropriate locations on hard drives and shared drives, emails, text messages or other direct messaging systems (such as iMessage, WhatsApp, Signal, or Twitter direct messages), voicemail messages, instant messaging systems such as Lync or ICQ, and shared messages systems such as Slack.
§ In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions.
§ Our request for records includes any attachments to those records or other materials enclosed with those records when they were previously transmitted. To the extent that an email is responsive to our request, our request includes all prior messages sent or received in that email chain, as well as any attachments to the email.
§ Please search all relevant records or systems containing records regarding agency business. Do not exclude records regarding agency business contained in files, email accounts, or devices in the personal custody of your officials, such as personal email accounts or text messages.
§ If any records are withheld in full or in part, pursuant to A.R.S. § 39- 121.01(D)(2), please provide an index of records or categories of records that have been withheld and the reasons the records or categories of records have been withheld.
§ In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If a request is denied in whole, please state specifically why it is not reasonable to segregate portions of the record for release.
§ Please take appropriate steps to ensure that records responsive to this request are not deleted by the agency before the completion of processing for this request. If records potentially responsive to this request are likely to be located on systems where they are subject to potential deletion, including on a scheduled basis, please take steps to prevent that deletion, including, as appropriate, by instituting a litigation hold on those records.
Conclusion
If you have any questions regarding how to construe this request for records or believe that further discussions regarding search and processing would facilitate a more efficient production of records of interest to American Oversight, please do not hesitate to contact American Oversight to discuss this request. American Oversight welcomes
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an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and your agency can decrease the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in an electronic format by email. Alternatively, please provide responsive material in native format or in PDF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis.
We share a common mission to promote transparency in government. American Oversight looks forward to working with your agency on this request. If you do not understand any part of this request, please contact Khahilia Shaw at [email protected] or 202.539.6507.
Sincerely,
/s/ Khahilia Shaw Khahilia Shaw on behalf of American Oversight
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April 9, 2021
VIA EMAIL
Cyber Ninjas Attn: Doug Logan 5077 Fruitville Road #109-421 Sarasota, FL 34232 [email protected] [email protected] [email protected]
Re: Public Records Request
To Whom It May Concern:
The Arizona Public Records Law, A.R.S. §§ 39-121 et seq., applies to any public organization or agency “supported in whole or in part by monies from this state or any political subdivision of this state, or expending monies provided by this state or any political subdivision of this state.” A.R.S. § 41-151.18. Arizona Senate President Karen Fann recently announced that the Senate had retained your company, Cyber Ninjas, to conduct an audit of the November 2020 election results from Maricopa County.1 The work performed pursuant to that contract is therefore subject to the provisions of the Arizona Public Records Law, which requires you to promptly produce records to any member of the public who requests access to them. See A.R.S. § 39-121.01(E).
American Oversight seeks records with the potential to shed light on Cyber Ninjas’ role in the Senate’s planned audit of Maricopa County’s election results, including regarding the anticipated or actual costs of the audit, the direct canvassing of voters or handling of confidential voter information, and other relevant communications. As explained more fully below, prompt disclosure of these records is crucial to meaningfully inform the public about the details of the audit process before the auditors begin contacting voters and reviewing ballots.
Requested Records
American Oversight requests that Cyber Ninjas promptly produce the following records:
1 Bob Christie, CEO of Firm Eyeing Ballots Appeared to Make Political Posts, AP, Mar. 31, 2021, https://apnews.com/article/joe-biden-arizona-elections-phoenix- dcb5478736188723b405a26e5b7031fc.
1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org
1. Complete copies (including any attachments) of any contract, sub-contract, amendment, memorandum of understanding, or other written agreement in possession of Cyber Ninjas related to the planning, preparation, or execution of the audit, including but not limited to: leases for spaces used to recount ballots; contracts with third-party security or transportation; vendor contracts; or contracts with any formal or informal advisors, consultants, or counsel.
2. Any project plans or other documents detailing the steps or procedures to be followed in each phase of the audit, including but not limited to: plans for the accessing, storing, and handling of confidential voter information, voting equipment, or voting software; methodology for comparing the expected and final results; or other privacy or security protocols.
3. Records sufficient to show a breakdown of the projected costs of Cyber Ninjas’ involvement in the Senate’s audit of Maricopa County’s November 3, 2020 election results, including any cost estimates submitted to the Senate during the procurement process, justifications for the specified $150,000 value of the contract,2 or other documents reflecting the budget for the audit.
4. Records sufficient to identify the precincts to be included in the “Registration and Votes Cast Phase” of the audit and the underlying justification for the selection of those precincts.
5. Any scripts or other guidelines or protocols for contacting individual voters by phone, in person or electronically.
Please provide all responsive records from February 1, 2021, through the date the search is conducted.
“Prompt” disclosure of these records is crucial to meaningfully inform the public on the details and scope of the audit process while the public still has an opportunity to affect how the process is conducted. The public has a legitimate interest in the manner in which the audit is conducted, as Cyber Ninjas itself has proposed to contact voters either by phone or in person to question their voting histories,3 a step that has been described as “harassment and intimidation” of voters.4
2 Statement of Work between Cyber Ninjas Inc. and Arizona State Senate, Mar. 31, 2021, https://www.documentcloud.org/documents/20536503-cyber-ninjas-sow- executed-33121. 3 Id. 4 Bob Christie, County Board to Senate: Find Another Spot to Recount Ballots, AP, Apr. 2, 2021, https://apnews.com/article/joe-biden-arizona-phoenix-elections-voting- 23a34828e8dadd190fe2f02555559b30.
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Disclosure of the requested records is only meaningful if it occurs sufficiently promptly to inform the public about the process while there is still time for them to petition their government to alter the process. The Statement of Work executed by Cyber Ninjas contemplates that the auditors will be contacting individual voters to ask about their voting histories in the first phase of the audit process. That phase is expected to be completed within 20 days, after which point the auditors will begin reviewing paper ballots.5 Disclosure of records after Cyber Ninjas has already begun handling ballots and contacting voters would be too late to prevent any potential harms resulting from those processes.
Statement of Noncommercial Purpose
This request is made for noncommercial purposes. American Oversight seeks records regarding the Arizona State Senate’s planned audit of Maricopa County’s 2020 election results. Records with the potential to shed light on this matter would contribute significantly to public understanding of operations of the government, including the costs to taxpayers of a second audit into the November 3, 2020 election results, the measures being taken to protect confidential voter information, and the extent to which voters may be contacted by phone or in person.
Because American Oversight is a 501(c)(3) nonprofit, this request is not in American Oversight’s financial interest and is not made for a commercial purpose. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.6
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following guidance regarding the scope of the records sought and the search and processing of records:
Please search all locations and systems likely to have responsive records, regardless of format, medium, or physical characteristics. For instance, if the request seeks “communications,” please search all locations likely to contain communications, including relevant hard-copy files, correspondence files, appropriate locations on hard drives and shared drives, emails, text messages or other direct messaging systems (such as iMessage, WhatsApp, Signal, or
5 See supra, note 2. 6 American Oversight currently has approximately 15,500 page likes on Facebook and 106,200 followers on Twitter. American Oversight, Facebook, https://www.facebook.com/weareoversight/ (last visited Apr. 8, 2021); American Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited Apr. 8, 2021).
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Twitter direct messages), voicemail messages, instant messaging systems such as Lync or ICQ, and shared messages systems such as Slack.
In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions.
Our request for records includes any attachments to those records or other materials enclosed with those records when they were previously transmitted. To the extent that an email is responsive to our request, our request includes all prior messages sent or received in that email chain, as well as any attachments to the email.
Please search all relevant records or systems containing records regarding government business. Do not exclude records regarding government business contained in files, email accounts, or devices in the personal custody of your officials, such as personal email accounts or text messages.
If any records are withheld in full or in part, pursuant to A.R.S. § 39- 121.01(D)(2), please provide an index of records or categories of records that have been withheld and the reasons the records or categories of records have been withheld.
In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If a request is denied in whole, please state specifically why it is not reasonable to segregate portions of the record for release.
Please take appropriate steps to ensure that records responsive to this request are not deleted by your organization before the completion of processing for this request. If records potentially responsive to this request are likely to be located on systems where they are subject to potential deletion, including on a scheduled basis, please take steps to prevent that deletion, including, as appropriate, by instituting a litigation hold on those records.
Conclusion
If you have any questions regarding how to construe this request for records or believe that further discussions regarding search and processing would facilitate a more efficient production of records of interest to American Oversight, please do not hesitate to contact American Oversight to discuss this request. American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and your organization can decrease the likelihood of costly and time-consuming litigation in the future.
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April 30, 2021 VIA EMAIL
Norm Moore Senate Public Records Attorney 400 W Congress, Ste. 201 Tucson, AZ 85701 [email protected]
Re: Public Records Request
Dear Senate Public Records Attorney:
Pursuant to the Arizona Public Records Law, A.R.S. §§ 39-121 et seq., American Oversight makes the following request for records.
On February 23, 2021, Maricopa County announced the results of an independent audit into its November 3 elections results, confirming that ballots were tabulated accurately and that voting equipment and software were secure.1 Nevertheless, the Arizona State Senate has pursued an additional audit and recount, including the hand tabulation of more than two million votes. On March 31, 2021, Senate President Karen Fann announced that the audit team would be led by the firm Cyber Ninjas,2 whose founder has repeatedly circulated baseless accusations of widespread fraud in the 2020 elections.3 While the announcement claimed that “Senate leadership expects this audit to be done in a transparent manner with the cooperation of Maricopa County,”4 the public does not yet have access to basic information about the conduct of the audit.5
1 Jen Fifield, Maricopa County’s 2020 Election Votes Were Counted Correctly, More County Audits Show, Ariz. Republic (updated Feb. 23, 2021, 5:48 PM), https://www.azcentral.com/story/news/politics/elections/2021/02/23/maricopa- countys-election-audits-show-2020-votes-counted-correctly/4550644001/. 2 Jeremy Duda, Arizona Senate Hires a ‘Stop the Steal’ Advocate to Lead 2020 Election Audit, AZ Mirror (updated Apr. 1, 2021, 10:18 AM), https://www.azmirror.com/2021/03/31/arizona-senate-hires-a-stop-the-steal- advocate-to-lead-2020-election-audit/. 3 Id. 4 AZSenateRepublicans (@AZSenateGOP), Twitter (Mar. 31, 2021, 2:07 PM), https://twitter.com/AZSenateGOP/status/1377321595518083074/photo/1. 5 Jerod MacDonald-Evoy, Judge Rejects Call for Secret Election Audit Hearing from Auditors, Senate Republicans, AZ Mirror (Apr. 28, 2021, 8:24 AM), https://www.azmirror.com/2021/04/27/judge-rejects-call-for-secret-election-audit- hearing-from-auditors-senate-republicans/?eType=EmailBlastContent&eId=19cfc01a- a092-4be0-abd6-4a95d066663f.
1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org
Cyber Ninjas has attempted to keep procedural documents regarding protecting voter privacy out of public view even as the hand counting of ballots is already in process.6
American Oversight seeks records with the potential to shed light on the Senate’s audit of Maricopa County’s election results, including plans to protect the security of confidential voter information, paper ballots, and election equipment. As explained more fully below, prompt disclosure of these records is crucial to meaningfully inform the public about the details of the audit process before the auditors have finished reviewing ballots and handling election equipment.
Requested Records
American Oversight requests that your office promptly produce the following records:
1. Complete copies (including any attachments) of any contract, sub-contract, amendment, memorandum of understanding, or other written agreement related to the execution of the audit of the 2020 election results being conducted by Cyber Ninjas, including the lease for use of the Veterans Memorial Coliseum; any contracts with third-party security and transportation; and any agreements regarding the recruitment and training of volunteers to assist in the audit.
2. Project plans or other documents detailing the steps or procedures to be followed in “Vote Count & Tally Phase” and “Electronic Voting System Phase” of the audit,7 including plans for the accessing, storing, and handling of physical ballots, confidential voter information, voting equipment, and voting software.
3. Records provided to the Senate sufficient to show a breakdown of the projected costs of the audit, including justifications for the specified $150,000 value of the contract,8 or other documents reflecting the budget for the audit.
4. Records identifying the precincts to be canvassed in the “Registration and Votes Cast Phase”9 of the audit and any justification for the selection of those precincts.
6 Jeremy Duda, Cyber Ninjas Releases Its Election Audit Policies After Court Order, AZ Mirror (updated Apr. 29, 2021, 2:41 PM), https://www.azmirror.com/2021/04/29/cyber-ninjas-releases-its-election-audit- policies-after-court-order/. 7 Statement of Work between Cyber Ninjas Inc. and Arizona State Senate, Mar. 31, 2021, https://www.documentcloud.org/documents/20536503-cyber-ninjas-sow- executed-33121. 8 Id. 9 Id.
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5. Scripts or other guidelines or protocols to be used by the auditors for contacting individual voters by phone, in person or electronically during the “Registration and Votes Cast Phase”10 of the audit.
Please provide all responsive records from February 1, 2021, through the date the search is conducted.
“Prompt” disclosure of these records is crucial to meaningfully inform the public on the details and scope of the audit process while the public still has an opportunity to affect the conduct of the process. The public has a legitimate interest in the manner in which the audit is conducted, as serious concerns exist with regard to protecting voter privacy, including the physical security of the facility where votes are being counted and the mishandling of paper ballots.11 Further, the current audit—the second of its kind—raises potential questions concerning the integrity of certain state government officials, including the extent to which these actors seek to undermine public confidence in the electoral process. Former Arizona Secretary of State Ken Bennett, who is acting as liaison between Cyber Ninjas and the Senate, encouraged the public to fund12 the audit’s estimated $2.8 million goal through a site which explicitly labels the operation as “the most in-depth Election Fraud Audit that has ever been performed.”13
Disclosure of the requested records is only meaningful if it occurs sufficiently promptly to inform the public about the process while there is still time for them to petition their government to alter the process. Under the direction of Cyber Ninjas, more than 100,000 paper ballots have already been counted.14 Disclosure of records after the recount has been completed would be too late to prevent any potential harms resulting from those processes.
Statement of Noncommercial Purpose
10 Id. 11 Andrew Oxford, Privacy of Voters Worries Judge as Arizona Senate's Count of November Ballots Continues, AZ Central (Apr. 27, 202, updated 6:22 PM MST), https://www.azcentral.com/story/news/politics/elections/2021/04/27/arizona-audit- judge-concerned-voter-protections-during-recount/4855290001/. 12 Rosalind S. Helderman & Josh Dawsey, As Trump Seizes on Arizona Ballot Audit, Election Officials Fear Partisan Vote Counts Could be the Norm in Future Elections, Wash. Post (Apr. 29, 2021, 3:05 PM EDT), https://www.washingtonpost.com/politics/trump- arizona-recount/2021/04/29/bcd8d832-a798-11eb-bca5-048b2759a489_story.html. 13 About the Audit, The America Project, (last visited Apr. 29, 2021), https://fundtheaudit.com/maricopa/. 14 Maria Polleetta & Piper Hansen, Here's What Happened at the Arizona Election Audit of Maricopa County Ballots, AZ Central (Apr. 28, 2021, updated Apr. 29, 2021, 8:05 AM MST), https://www.azcentral.com/story/news/politics/arizona/2021/04/28/arizona- election-audit-what-happened-ballot-counting-april-28/4876185001/.
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This request is made for noncommercial purposes. American Oversight seeks records regarding the Arizona State Senate’s audit of Maricopa County’s 2020 election results. Records with the potential to shed light on this matter would contribute significantly to public understanding of operations of the government, including how the Senate’s chosen contractors plan to protect the privacy of voters and maintain the security of confidential voter files and election infrastructure.15
Because American Oversight is a 501(c)(3) nonprofit, this request is not in American Oversight’s financial interest and is not made for a commercial purpose. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.16
Because this request is made for noncommercial purposes, American Oversight requests that any fees charged in connection with processing this request be limited to copying and postage charges, if applicable.17 Please notify American Oversight of any anticipated fees or costs in excess of $100 prior to incurring such costs or fees.
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following guidance regarding the scope of the records sought and the search and processing of records:
§ Please search all locations and systems likely to have responsive records, regardless of format, medium, or physical characteristics. For instance, if the request seeks “communications,” please search all locations likely to contain communications, including relevant hard-copy files, correspondence files, appropriate locations on hard drives and shared drives, emails, text messages or other direct messaging systems (such as iMessage, WhatsApp, Signal, or Twitter direct messages), voicemail messages, instant messaging systems such as Lync or ICQ, and shared messages systems such as Slack.
15 See supra, notes 5 & 6. 16 American Oversight currently has approximately 15,690 page likes on Facebook and 106,200 followers on Twitter. American Oversight, Facebook, https://www.facebook.com/weareoversight/ (last visited Apr. 30, 2021); American Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited Apr. 30, 2021). 17 A.R.S. § 39-121.01(D)(1); see also Hanania v. City of Tucson,128 Ariz. 135, 624 P.2d 332 (Ct. App. 1980). Furthermore, because this request is for noncommercial purposes, additional fees provided for under A.R.S. § 39-121.03(A) are not applicable and should not be assessed.
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§ In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions.
§ Our request for records includes any attachments to those records or other materials enclosed with those records when they were previously transmitted. To the extent that an email is responsive to our request, our request includes all prior messages sent or received in that email chain, as well as any attachments to the email.
§ Please search all relevant records or systems containing records regarding agency business. Do not exclude records regarding agency business contained in files, email accounts, or devices in the personal custody of your officials, such as personal email accounts or text messages.
§ If any records are withheld in full or in part, pursuant to A.R.S. § 39- 121.01(D)(2), please provide an index of records or categories of records that have been withheld and the reasons the records or categories of records have been withheld.
§ In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If a request is denied in whole, please state specifically why it is not reasonable to segregate portions of the record for release.
§ Please take appropriate steps to ensure that records responsive to this request are not deleted by the agency before the completion of processing for this request. If records potentially responsive to this request are likely to be located on systems where they are subject to potential deletion, including on a scheduled basis, please take steps to prevent that deletion, including, as appropriate, by instituting a litigation hold on those records.
Conclusion
If you have any questions regarding how to construe this request for records or believe that further discussions regarding search and processing would facilitate a more efficient production of records of interest to American Oversight, please do not hesitate to contact American Oversight to discuss this request. American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and your agency can decrease the likelihood of costly and time-consuming litigation in the future.
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Where possible, please provide responsive material in an electronic format by email. Alternatively, please provide responsive material in native format or in PDF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis.
We share a common mission to promote transparency in government. American Oversight looks forward to working with your agency on this request. If you do not understand any part of this request, please contact Khahilia Shaw at [email protected] or 202.539.6507.
Sincerely,
/s/ Khahilia Shaw Khahilia Shaw on behalf of American Oversight
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Wednesday, May 5, 2021 at 16:08:31 Eastern Daylight Time
Subject: RE: New Public Records Request Date: Tuesday, May 4, 2021 at 9:28:10 PM Eastern Daylight Time From: Norm Moore To: Sara Creighton
EXTERNAL SENDER
Sara Creighton,
There are no more responsive documents to provide at this me because the Senate doesn’t have custody, control or possession of any of the records requested.
If you have any more ques ons or need further clarifica on please contact me at your earliest convenience.
Sincerely,
Norm Moore Arizona State Senate Public Records A orney [email protected]
From: Sara Creighton
Mr. Moore,
Thank you so much for your quick response with that document. As you indicated, that document appears to be responsive to part 1 of the records requested in request AZ-SEN-21-0609, which we submi ed last Friday. Can you confirm whether you are s ll searching for any other records responsive to that request, or if this one document is the only document the Senate has access to that is responsive to that request?
I am taking your other ques ons about the Fann and Petersen requests back to our team, and we will follow up as soon as we can.
Thank you, Sara Creighton
Page 1 of 5 From: Norm Moore
EXTERNAL SENDER
Khahilia Shaw,
I am receipt in your latest public records request of today. A ached to this email is a copy of the lease that the Arizona State Senate entered into with the Arizona Exposi on and State Fair regarding the lease of the Arizona Veterans Memorial Coliseum as requested in paragraph 1. of Requested Records. However, I do need to request some clarifica on regarding the previous public records requests par cularly regarding Senator Eddie Farnsworth and President Karen Fann.
On April 9, you sent revised search terms regarding the 5 public records requests regarding former Senator Eddie Farnsworth. A number of search terms in those lists included wildcards. Following the receipt of your April 9 email, I sent you a follow-up email on April 13 explaining that wildcards can’t be used in our system and asked how you would like to proceed. Also, in that email I also inquired whether you were seeking communica ons in which former Senator Farnsworth either sent an email or responded to an email or if you were seeking all communica ons involving those search terms even if former Senator Eddie Farnsworth didn’t read or respond to those emails. Since I haven’t received a response to those ques ons those requests have not yet been processed.
Last Friday, on April 23, I sent an email acknowledging receipt of the public records request regarding President Fann. In that email I indicated that I needed public records request 0472 because that specific request couldn’t be located in the President’s Office. Also, in that email I requested clarifica on if you were asking for all email communica ons sent to President Fann or her staff even if the email was never read or if you were interested in the emails in which President Fann or her staff either authored or responded to emails from the individuals and en es included in the search terms. Addi onally, I requested search terms to be provided for request 0476 since there were general descrip ons of what communica ons you are seeking but no specific search terms provided for conduc ng a search. I haven’t received any responses to those ques ons so that request has also has not processed. Once I receive responses regarding the revised search terms for former Senator Farnsworth do you want me to use those revised search terms also for President Fann and her Administra ve Assistants? Please advise.
I am in the process of checking with Senator Petersen’s office for public records requests that your email of today indicated were sent to Senator Petersen. If those requests are the same as for President Fann and former Senator Eddie Farnsworth do you want me to use the revised search terms when I receive them from you? Please advise.
Page 2 of 5
If there are responsive documents regarding any of the other items in your request I will send them to you.
In the mean me, if you have any ques ons or need further clarifica on please contact me.
Sincerely,
Norm Moore Arizona State Senate Public Records A orney [email protected]
From: AO Records
Mr. Moore,
Thank you for following up on this; we really appreciate your flexibility in working with us on these requests. Attached to this email you will find a new request that we are submitting to you as the Senate Public Records Attorney seeking a much narrower set of specific documents related to the audit. We hope the narrow scope of this request will allow you to easily identify the responsive documents without requiring a time consuming electronic search. Because this request is more targeted and should take significantly less time to respond to, we would like to prioritize this request over completing the search and production for the remaining Fann, Petersen, and Farnsworth requests. We recognize this may delay your response on those earlier requests.
In light of the targeted nature of today’s request, we would appreciate receipt of responsive records by Friday, May 7.
Please let me know if you have any questions or if you’d like to discuss.
Thank you,
Khahilia Shaw Counsel American Oversight [email protected] | 202.539.6507 | she/her www.americanoversight.org | @weareoversight
From: Norm Moore
EXTERNAL SENDER
Page 3 of 5 Khahilia Shaw,
I apologize that you didn’t receive confirma on earlier regarding the public records requests that were sent to President of the Arizona Senate Karen Fann on April 6, 2021. I am acknowledging the receipt of four of the public records requests as follows: 0465, 0468, 0476 and 0480. Could you please resend the request with your internal number 0472?
In your email of earlier today, you requested an es mate of how long a search for records might take. As you are aware, given the subject ma er of these records requests, the vast number of individuals and en es that are included as search terms and that the requests also includes 3 staff members (her 2 Administra ve Assistants and her Chief of Staff) in addi on to President Fann, I would an cipate a vast number of results to be produced. As you know, the results generated from a search have to be reviewed and then poten ally redacted. However, it is likely that in these par cular requests many of these documents will be subject to legisla ve privilege, a orney-client privilege or both and therefore won’t be released but it will s ll take a long me to review them. Un l such me that I have some idea of the actual number of results that are generated from an electronic search of emails I won’t be able to provide an es mate of how long it will take. I do have some ques ons below about the requests and the answer to those ques ons can either reduce or increase the amount of records to be produced.
I do have some ques ons regarding all of the requests in general and then some ques ons regarding specific requests. Regarding email communica ons are you asking for all email communica ons sent to President Fann or her staff even if the email was never read or are you interested in those emails in which President Fann or her staff either authored or responded to from the individuals or en es included in the search terms? Please advise. In request 0476 there are general descrip ons of what communica ons you are seeking but no specific search terms provided for conduc ng a search? Please advise. I may have some other ques ons regarding 0472 a er I have had the opportunity to read and review the request.
Regarding request 0465, you have already received the signed Master Service Agreement (MSA) and the signed Statement of Work (SOW) between the State Senate and Cyber Ninjas and the other proposals (not technically bids) from 3 other en es as requested. The Arizona Legislature is not subject to the Arizona Procurement Code in Title 41, Chapter 23, Arizona Revised Statutes so there are not specific requirements for solicita on of bids, evalua on of bids or statement of rejec on made to any bidders. Are there specific terms you want to be used for the descrip on of what you are seeking in paragraph 2.? Please advise.
If you have any ques ons or need further clarifica on please contact me at your earliest convenience.
Sincerely,
Norm Moore Arizona State Senate Public Records A orney [email protected]
Sent from my iPhone
Begin forwarded message:
Page 4 of 5 From: Khahilia Shaw
Good afternoon,
We are following up on the five Arizona Public Records requests listed below, which we submitted to your office on April 6. We would appreciate confirmation of receipt of these requests, as well as estimates on how long a search for records might take.
1. AZ-SEN-21-0465 (Contracts) 2. AZ-SEN-21-0468 (General Communications) 3. AZ-SEN-21-0472 (Communications with Contractors) 4. AZ-SEN-21-0476 (Communications with Specified Law Firms) 5. AZ-SEN-21-0480 (Communications with Maricopa County)
Thank you,
Khahilia Shaw Counsel American Oversight [email protected] | 202.539.6507 | she/her www.americanoversight.org | @weareoversight
From: Sarah Wishingrad
Dear Public Records Officer:
Please find a ached a request for records under Arizona’s Public Records Law.
Sincerely,
Sarah Wishingrad Pronouns: she/her Paralegal American Oversight [email protected] www.americanoversight.org | @weareoversight
PRR: AZ-SEN-21-0465
Page 5 of 5
May 10, 2021 VIA EMAIL
Senate President Karen Fann Arizona State Capitol Complex 1700 W. Washington Street Phoenix, AZ 85007 [email protected]
Senator Warren Petersen Arizona State Capitol Complex 1700 W. Washington Street Phoenix, AZ 85007 [email protected]
Norm Moore Senate Public Records Attorney 400 W. Congress, Ste. 201 Tucson, AZ 85701 [email protected]
Re: Public Records Request
Dear Senate President Fann, Senator Petersen, and Public Records Attorney Moore:
As you know, American Oversight has made several public records requests over the past month of you, other members (and former members) of the Arizona Senate, and the Arizona Senate more generally. We write today to clarify and supplement our prior requests, and to confirm the position that you have taken regarding the public’s ability to access records reflecting what is happening at Veterans Memorial Coliseum.
The ongoing controversy related to the Arizona Senate’s “audit” of the 2020 General Election results in Maricopa County has its origins in legislative subpoenas Senate President Fann and Senator Petersen issued. The legality of those subpoenas was litigated before Judge Timothy Thomason, who ultimately ruled that the subpoenas were issued for a valid legislative purpose.1 On March 31, 2021, Senate President Fann announced that the audit team would be led by the firm Cyber Ninjas, whose founder has repeatedly circulated baseless accusations of widespread fraud in the 2020
1 Jeremy Duda, Judge Sides with Senate, Says Maricopa Must Turn over Election Materials for Audit, AZ Mirror, Feb. 26, 2021, 2:38 PM), https://www.azmirror.com/2021/02/26/judge-sides-with-senate-says-maricopa-must- turn-over-election-materials-for-audit/.
elections.2 The Arizona Senate then executed an agreement with Cyber Ninjas to perform the “audit”—and thus perform the public function of the “audit” itself—and committed $150,000 in public funds to pay Cyber Ninjas for its work.3 The Arizona Senate also retained former Arizona Secretary of State Ken Bennett to serve as the Senate’s representative and “liaison” to Cyber Ninjas and the “audit,” which is also plainly a public function.
While your announcement claimed that “Senate leadership expects this audit to be done in a transparent manner with the cooperation of Maricopa County,”4 the public does not yet have access to basic information about the conduct of the audit.5 Cyber Ninjas has also attempted to keep procedural documents regarding protecting voter privacy out of public view, even as the hand counting of ballots is already in process.6 Additionally, from prior correspondence with the Arizona Senate’s public records attorney, Mr. Norm Moore, we understand that the Arizona Senate takes the position that documents and communications related to the conduct of the audit that are not in your physical possession but are held instead by Cyber Ninjas and/or Mr. Bennett are not public records (or are not within your custody, possession, or control) despite the fact that both Cyber Ninjas and Mr. Bennett are (a) serving as your contractors, (b) performing legislative and public functions, and (c) being paid with public funds.
Requested Records
To clarify our prior requests, and pursuant to Arizona’s Public Records Law, American Oversight seeks the following public records that have the potential to shed light on the Senate’s “audit” of Maricopa County’s election results. Prompt disclosure of these records is crucial to meaningfully inform the public about the details of the audit process before the auditors have finished reviewing ballots and handling election equipment. These requests are directed to Senate President Fann, Senator Petersen, and the Arizona Senate as a branch of the State, and your response must include documents in the physical possession of your agents and contractors, including Cyber Ninjas and Mr. Bennett, over whom you exercise control by agreement or contract:
2 Jeremy Duda, Arizona Senate Hires a ‘Stop the Steal’ Advocate to Lead 2020 Election Audit, AZ Mirror (Apr. 1, 2021, 10:18 AM), https://www.azmirror.com/2021/03/31/arizona-senate-hires-a-stop-the-steal- advocate-to-lead-2020-election-audit/. 3 Id. 4 AZSenateRepublicans (@AZSenateGOP), Twitter (Mar. 31, 2021, 2:07 PM), https://twitter.com/AZSenateGOP/status/1377321595518083074/photo/1. 5 Jerod MacDonald-Evoy, Judge Rejects Call for Secret Election Audit Hearing from Auditors, Senate Republicans, AZ Mirror (Apr. 28, 2021, 8:24 AM), https://www.azmirror.com/2021/04/27/judge-rejects-call-for-secret-election-audit- hearing-from-auditors-senate-republicans/?eType=EmailBlastContent&eId=19cfc01a- a092-4be0-abd6-4a95d066663f. 6 Jeremy Duda, Cyber Ninjas Releases Its Election Audit Policies After Court Order, AZ Mirror (Apr. 29, 2021, 2:41 PM), https://www.azmirror.com/2021/04/29/cyber- ninjas-releases-its-election-audit-policies-after-court-order/.
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1. All communications (including emails, email attachments, text messages, messages on messaging platforms (such as Slack, GChat or Google Hangouts, Lync, Skype, or WhatsApp)) exchanged between former Secretary of State Ken Bennett and any party engaged in the planning, preparation, or execution of the audit of the November 2020 Maricopa County election results being conducted by Cyber Ninjas and its subcontractors, including but not limited to: Doug Logan or anyone communicating on behalf of Cyber Ninjas, Wake Technology Services, Digital Discovery, CyFIR, former state legislative candidate Liz Harris,7 or any other individual or entity engaged in work on the audit.
2. Complete copies (including any attachments) of any contract, sub-contract, amendment, memorandum of understanding, or other written agreement related to the planning, preparation, or execution of the audit of the November 2020 Maricopa County election results being conducted by Cyber Ninjas and its subcontractors. Responsive documents to this portion of this request this request would include, but not be limited to, any leases for space to conduct the audit, including any lease agreement following the expiration of the existing lease agreement with the Veterans Memorial Coliseum on May 14, 2021; any contracts, or other formal or informal agreements, with third-party security, transportation, or lodging vendors or volunteers; any formal or informal agreements with third parties regarding the tabulation and aggregation of audit data; any formal or informal agreements with consultants, advisors, or counsel; and any formal or informal agreements regarding the recruitment and training of employees, contractors, or volunteers to participate in any phase of the audit.
3. All records reflecting the projected or actual costs of the audit, including but not limited to: records referencing the $150,000 value of the contract with the Arizona Senate;8 records reflecting estimated costs or the budget for the audit, including any expenses beyond the specified $150,000; records reflecting the collection of external funding for the audit, such as agreements with fundraisers, any policies regarding external revenue collection, and all records of external financial or in-kind resource contributions; and copies of all invoices, requests for reimbursement, and payments made relating to the planning, preparation, or execution of the audit or associated litigation.
7 Andrew Oxford, Auditors Won’t Knock on Voters’ Doors in Arizona Election Review, Senate President Tells DOJ, AZ Central (May 7, 2021, 5:39 PM), https://www.azcentral.com/story/news/politics/arizona/2021/05/07/arizona-audit- plan-visit-voters-homes-dropped-fann-tells-doj/4996668001/ (explaining that Ms. Farris may either be directly involved in the audit or conducting similar work to the audit). 8 Statement of Work between Cyber Ninjas Inc. and Arizona State Senate, Mar. 31, 2021, https://www.documentcloud.org/documents/20536503-cyber-ninjas- sow-executed-33121.
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4. Any project plans or other documents detailing the steps or procedures to be followed in each phase of the audit,9 including those following the expiration of the existing agreement with the Veterans Memorial Coliseum on May 14, 2021. Responsive documents to this portion of the request would include, but not be limited to, any projected timelines for the completion of the audit; organizational charts or other documents memorializing chains of custody; plans for the accessing, storage, and handling of physical ballots, confidential voter information, voting equipment, and voting software; explanations or analyses of investigative techniques, including but not limited to ultraviolet inspection, kinematic artifact detection, or analysis of paper fibers;10 and procedures for the tabulation and aggregation of audit data.
5. Records relating to or referencing the “Registration and Votes Cast Phase”11 of the audit, including records relating to work planned or completed in the “Registration and Votes Cast Phase,” including but not limited to: records identifying the precincts to be canvassed and any justification for the selection of those precincts; logs or other records identifying those voters canvassed or selected for canvassing; any scripts or other guidelines, procedures, or protocols to be used by the auditors for contacting individual voters by phone, in person, or electronically; or agreements with any party regarding the recruitment and training of individuals to conduct canvassing.
The start date for these records is February 1, 2021.
Please consider this a standing request, the response to which should be updated promptly each time new information is added to any responsive records or new responsive records are created. See W. Valley View, Inc. v. Maricopa Cty. Sheriff's Off., 216 Ariz. 225, 228 (App. 2007).
“Prompt” disclosure of these records is crucial to meaningfully inform the public on the details and scope of the audit process while the public still has an opportunity to affect the conduct of the process. The public has a legitimate interest in the manner in which the audit is conducted, as serious concerns exist with regard to protecting voter privacy, including the physical security of the facility where votes are being counted and the mishandling of paper ballots.12 Further, the current audit—the second of its kind— raises potential questions concerning the integrity of certain state government officials, including the extent to which these actors seek to undermine public confidence in the
9 Id. 10 Jeremy Duda, Governor Sidesteps Questions on Audit Amid Mounting Issues, AZ Mirror (May 7, 2021, 7:44 AM), https://www.azmirror.com/blog/governor-sidesteps- questions-on-audit-amid-mounting-issues/. 11 See Oxford supra, note 7. 12 Andrew Oxford, Privacy of Voters Worries Judge as Arizona Senate's Count of November Ballots Continues, AZ Cent. (Apr. 27, 2021, 6:22 PM), https://www.azcentral.com/story/news/politics/elections/2021/04/27/arizona-audit- judge-concerned-voter-protections-during-recount/4855290001/.
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electoral process. Mr. Bennett, the former Arizona Secretary of State acting as liaison between Cyber Ninjas and the Senate, encouraged the public to fund the audit’s estimated $2.8 million goal through a website which explicitly labels the operation as “the most in-depth Election Fraud Audit that has ever been performed.”13
Disclosure of the requested records is most meaningful if it occurs sufficiently promptly to inform the public about the process while there is still time for them to petition their government to alter the process. Under the direction of Cyber Ninjas, more than 200,000 paper ballots have already been counted.14 Furthermore, the Senate’s lease on the Veterans Memorial Coliseum will expire on May 14, 2021,15 raising further concerns about the security of ballots and equipment after the Senate is required to vacate the facility. Disclosure of records after the recount has been completed would be too late to prevent any potential harms resulting from those processes. And in any event, we believe that all of the records requested above were already requested in our prior requests.
Please promptly notify us if you are taking the position that responsive records are either not public records or are not in your possession, custody, or control because they are in the physical possession of Cyber Ninjas and/or Mr. Bennett. Mr. Moore’s prior correspondence implies this, but we wish to be sure of your position.
Statement of Noncommercial Purpose
This request is made for noncommercial purposes. American Oversight seeks records regarding the Arizona State Senate’s audit of Maricopa County’s 2020 election results. Records with the potential to shed light on this matter would contribute significantly to public understanding of operations of the government, including how the Senate’s
13 About the Audit, The America Project, (last visited May 10, 2021), https://fundtheaudit.com/maricopa/; see Rosalind S. Helderman & Josh Dawsey, As Trump Seizes on Arizona Ballot Audit, Election Officials Fear Partisan Vote Counts Could be the Norm in Future Elections, Wash. Post (Apr. 29, 2021, 3:05 PM), https://www.washingtonpost.com/politics/trump-arizona- recount/2021/04/29/bcd8d832-a798-11eb-bca5-048b2759a489_story.html. 14 Andrew Oxford, Extending Arizona Ballot Recount Past May 14 Is ‘Not Feasible,’ State Fair Officials Say, AZ Central (May 5, 2021, 12:48 PM), https://www.azcentral.com/story/news/politics/arizona/2021/05/05/arizona-audit- fair-official-says-extending-recount-not-feasible/4960234001/. 15 Brahm Resnik, Bamboo Ballots, Death Threats and An Ultimatum: What’s Next for Arizona GOP’s Election Audit? 12 News (May 9, 2021, 4:12 PM), https://www.12news.com/article/news/politics/bamboo-ballots-death-threats-and-an- ultimatum-whats-next-for-arizona-gops-election-audit/75-0d06c079-89ad-439a-9d82- c55d8656e97c.
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chosen contractors are protecting the privacy of voters and maintaining the security of confidential voter files and election infrastructure.16
Because American Oversight is a 501(c)(3) nonprofit, this request is not in American Oversight’s financial interest and is not made for a commercial purpose. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter.17
Because this request is made for noncommercial purposes, American Oversight requests that any fees charged in connection with processing this request be limited to copying and postage charges, if applicable.18 Please notify American Oversight of any anticipated fees or costs in excess of $100 prior to incurring such costs or fees.
Guidance Regarding the Search & Processing of Requested Records
In connection with its request for records, American Oversight provides the following guidance regarding the scope of the records sought and the search and processing of records:
§ Please search all locations and systems likely to have responsive records, regardless of format, medium, or physical characteristics. For instance, if the request seeks “communications,” please search all locations likely to contain communications, including relevant hard-copy files, correspondence files, appropriate locations on hard drives and shared drives, emails, text messages or other direct messaging systems (such as iMessage, WhatsApp, Signal, or Twitter direct messages), voicemail messages, instant messaging systems such as Lync or ICQ, and shared messages systems such as Slack.
§ In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages, and
16 See supra, notes 5 & 6. 17 American Oversight currently has approximately 15,690 page likes on Facebook and 106,200 followers on Twitter. American Oversight, Facebook, https://www.facebook.com/weareoversight/ (last visited May 10, 2021); American Oversight (@weareoversight), Twitter, https://twitter.com/weareoversight (last visited May 10, 2021). 18 A.R.S. § 39-121.01(D)(1); see also Hanania v. City of Tucson,128 Ariz. 135, 624 P.2d 332 (Ct. App. 1980). Furthermore, because this request is for noncommercial purposes, additional fees provided for under A.R.S. § 39-121.03(A) are not applicable and should not be assessed.
6 AZ-SEN-21-0640
transcripts, notes, or minutes of any meetings, telephone conversations, or discussions.
§ Our request for records includes any attachments to those records or other materials enclosed with those records when they were previously transmitted. To the extent that an email is responsive to our request, our request includes all prior messages sent or received in that email chain, as well as any attachments to the email.
§ Please search all relevant records or systems containing records regarding agency business. Do not exclude records regarding agency business contained in files, email accounts, or devices in the personal custody of your officials, such as personal email accounts or text messages.
§ If any records are withheld in full or in part, pursuant to A.R.S. § 39- 121.01(D)(2), please provide an index of records or categories of records that have been withheld and the reasons the records or categories of records have been withheld.
§ In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If a request is denied in whole, please state specifically why it is not reasonable to segregate portions of the record for release.
§ Please take appropriate steps to ensure that records responsive to this request are not deleted by the agency before the completion of processing for this request. If records potentially responsive to this request are likely to be located on systems where they are subject to potential deletion, including on a scheduled basis, please take steps to prevent that deletion, including, as appropriate, by instituting a litigation hold on those records.
Conclusion
If you have any questions regarding how to construe this request for records or believe that further discussions regarding search and processing would facilitate a more efficient production of records of interest to American Oversight, please do not hesitate to contact American Oversight to discuss this request. American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, American Oversight and your agency can decrease the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in an electronic format by email. Alternatively, please provide responsive material in native format or in PDF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on a rolling basis.
7 AZ-SEN-21-0640
We share a common mission to promote transparency in government. American Oversight looks forward to working with your agency on this request. If you do not understand any part of this request, please contact Khahilia Shaw at [email protected] or 202.539.6507.
Sincerely,
/s/ Khahilia Shaw Khahilia Shaw on behalf of American Oversight
8 AZ-SEN-21-0640
Norm Moore
‐External Sender‐
Khahilia Shaw,
I am in receipt of your latest Public Records Request in which you state on page 2 is “to clarify our prior requests” and seeks a variety of public records in five enumerated paragraphs. Also, I did receive notification late last evening from Roopali Desai that the firm of Coppersmith Brockelman PLC has been retained by American Oversight. I was in email communication with Roopali Desai earlier this afternoon and did inform her that I was in the middle of a response to you and that I would copy her on the email. Additionally, we are currently scheduled to have a discussion about these requests this coming Monday, May 18 at 1:00 p.m.
My response today to the five enumerated paragraphs requesting a variety of records includes attached documents in the possession of the Arizona State Senate and is as follows:
1. If this portion of the request is seeking communications originally authored by Ken Bennett or sent as a response by him to an email that he received from someone outside the State Senate that is “any party” engaged in the planning, preparation or execution of the audit, President Fann or Senator Petersen would only have possession of any of those communications if they were copied on such a communication. Are you seeking those communications from President Fann or Senator Petersen or communications sent by Ken Bennett to any one else included in this paragraph in which the Senate does not have possession, custody or control? Please advise.
2. The Senate does not have in its possession, custody or control any contract, sub‐contract, amendment, memorandum or understanding, or other written agreement between Cyber Ninjas and any of it subcontractors. Additionally, the Senate has no other agreements with third‐party security, transportation or lodging vendors or volunteers or any other third party regarding the audit except for the agreement with Cyber Ninjas and the Arizona Exposition and State Fair for the use of space at its facilities and you already have received a copy of those documents. An amendment to the agreement between the Arizona State Senate (“Contractor”) and the Arizona Exposition and State Fair (“Board”) which was executed two days ago is attached.
1
3. The executed Master Service Agreement (MSA) and the Statement of Work (SOW) between the Arizona State Senate and Cyber Ninjas doesn’t include specific funding for a particular part of the audit but it did require a specific amount to be paid within a certain number of days from the execution of the agreement. The amount of that payment and when it was paid by the Senate is attached. The Arizona State Senate doesn’t have any agreements with fundraisers nor any records of external financial or in‐kind resource contributions nor has the Senate received any donations from individuals or entities that have been deposited into the Senate’s general fund.
4. Again, other than the agreement (MSA and the SOW) between the Senate and Cyber Ninjas which I sent previously and a copy of the settlement agreement which is my understanding you already possess, any other documents related to project plans or other documents detailing steps or procedures to be followed include an attached letter from Jordan Wolff, from Wilenchik and Bartness, Attorneys at Law, on behalf of Cyber Ninjas to legal counsel, Josh Bendor, for Secretary of State Hobbs, a letter from Joe LaRue of the Maricopa County Attorney’s Office to Kory Langhofer, counsel representing the Senate, regarding routers and a letter from President Fann to the Jack Sellers, Chairman of the Maricopa County Board of Supervisors requesting the presence of county officials or employees at a hearing next Tuesday, May 18 at 1:00 p.m. in Senate Hearing Room 109 to discuss three specific issues.
5. The Senate does not possess any records relating to or referencing the “Registration and Votes Cast Phase” other than what may be referred to in the MSA and SOW and the attached letter that President Fann sent to the Department of Justice.
If you have any questions or need further clarification please contact me at your earliest convenience.
I look forward to your response.
Sincerely,
Norm Moore Arizona State Senate Public Records Attorney [email protected]
From: Khahilia Shaw
Good Afternoon,
Please see the attached letter regarding our recent Public Records Requests.
Thank you,
Khahilia Shaw Counsel
2 American Oversight [email protected] | 202.539.6507 | she/her www.americanoversight.org | @weareoversight
3
Roopali H. Desai [email protected] PH. (602) 381-5478 FAX (602) 224-6020
2800 North Central Avenue, Suite 1900 Phoenix, AZ 85004 CBLAWYERS.COM
May 21, 2021
Via Email Only
Mr. Norm Moore Arizona State Senate Public Records Attorney [email protected]
Re: American Oversight Public Records Requests dated April 6, 2021
Dear Norm:
American Oversight sent public records requests to President Fann dated April 6, 2021. To date, American Oversight has not received any records responsive to requests 0468, 0472, 0476, and 0480. I write to follow up on those requests.
On April 23, 2021, you acknowledged receipt of requests 0465, 0468, 0476, and 0480, and requested search terms for request 0476. You also sought clarification regarding whether American Oversight was “asking for all email communications sent to President Fann or her staff even if the email was never read or if [American Oversight is] interested in the emails in which President Fann or her staff either authored or responded to emails from the individuals and entities included in the search terms.” And you requested that request 0472 be resent because it “couldn’t be located in the President’s Office.”
On April 30, 2021, you informed American Oversight that request 0476 had not been processed because you had not received responses to your questions. We disagree that American Oversight is required to provide search terms or narrow its records requests in order for a request to be processed.
But even if your request for clarification and search terms justified a halt to the processing of request 0476, there is no justification for the denial of records in response to requests 0468, 0472, and 0480. This is especially true given that the Senate, President Fann, and/or Senator Petersen have collected and produced email communications with Ken Bennett and others involved in the Senate’s “audit” in response to other public records requests. See, e.g., https://twitter.com/nickmartin/status/1395424503333720067?s=20. Moreover, Senator Fann has admitted that she has communications with Ken Bennett, and such records are clearly responsive to American Oversight’s requests. See Fann Response to DOJ, dated May 7, 2021 (“I am in regular communication with Secretary Bennett and remain fully apprised of all material developments in the audit.”).
In the interest of avoiding further litigation, and without waiving any claims regarding the prompt and adequate production of records under Arizona’s Public Records Law, American Oversight seeks immediate production of records responsive to requests 0468, 0472, and 0476. To the extent you have not been able to locate request 0472, it is enclosed here. When processing such requests, you may apply the following prioritizing instructions:
{00551288.2 } Mr. Norm Moore May 21, 2021 Page 2
• With respect to its requests for email communications, American Oversight does not seek unopened (and never read) emails to President Fann.
• American Oversight also does not seek mass emails, or form or template emails.
• As specified in the April 6, 2021 requests, the date range to be searched is November 3, 2021 to the present.
• With respect to requests 0468, 0472, and 0476, we provide the following search terms:
o Bennett o Logan o Pulitzer o Kolodin o Wilenchik o Bobb o Cyber Ninjas o Wake o CyFIR o Harris o Audit o @cyberninjas.com o @azgop.com o [email protected] o Julie Fisher o fundtheaudit.com o Kelli Ward o Piton o gop.com
* * *
Please confirm no later than 5:00 p.m. on May 24, 2021 that Senator Fann will immediately begin production of records responsive to requests 0468, 0472, and 0476 on a rolling basis. If we do not receive confirmation, American Openings will seek judicial relief given that more than six weeks have passed and Senator Fann has failed to produce records responsive to these requests.
Sincerely,
Roopali H. Desai
RHD:slm Enclosure cc: Kory Langhofer Tom Basile
{00551288.2 }
From: Norm Moore To: Sheri McAlister Cc: Roopali Desai; Kory Langhofer; Thomas Basile Subject: RE: American Oversight Public Records Requests Date: Monday, May 24, 2021 12:34:25 PM
-External Sender- Roopali Desai,
I am writing to confirm receipt of your letter attached to the email sent by Sheri McAlister on Friday afternoon May 21, 2021 regarding American Oversight Public Records Requests dated April 6, 2021. Additionally, I am confirming that production of responsive documents of President Fann will begin later today on a rolling basis. Unless otherwise directed, the documents will be attached in pdf files in the email communications to American Oversight.
If you have any questions or need further clarification please contact me at your earliest convenience.
Sincerely,
Norm Moore Arizona State Senate Public Records Attorney [email protected]
From: Sheri McAlister
Good afternoon.
Please see the attached correspondence from Roopali Desai.
A hard copy will not be mailed.
Thank you.
Sheri McAlister Legal Assistant to Keith Beauchamp | Roopali Desai | Andy Gaona
Coppersmith Brockelman PLC Direct Dial: (602) 381-5493
2800 North Central Avenue, Suite 1900 Phoenix, AZ 85004 cblawyers.com | Facebook | LinkedIn
From: Norm Moore To: Roopali Desai Cc: Wendy Baldo; Greg Jernigan; Kory Langhofer; Thomas Basile Subject: RE: American Oversight Public Records Requests Date: Thursday, June 3, 2021 9:07:44 PM Attachments: image001.png
-External Sender- Roopali,
The next production of documents should be tomorrow mid to late afternoon and is approximately 500 pages of documents. This set of documents will be responsive to the revised search terms contained in your letter of May 21, 2021 regarding American Oversight Records Requests of 0468, 0472 and 0476 related to President Fann’s communications except the production of documents will not include her text messages which may be responsive. It is anticipated that production of those documents will begin in the near future.
I sent some responsive documents to American Oversight on 4 different dates in April (7, 20, 21 and 30) that pertain to the substance of request 0465. The responsive documents that I sent at that time included the signed Master Service Agreement (MSA) and the Statement of Work (SOW) between Cyber Ninjas and the Arizona Senate (those documents were sent to both Sara Creighton and Khahilia Shaw on two different dates). Additionally, the responsive documents included 3 different proposals for the audit that were submitted to the Senate as well as the original agreement between the Arizona State Senate and the Arizona Exposition and State Fair for the use of the Arizona Veterans Memorial Coliseum. The amendment to that agreement between the Arizona State Senate and the Arizona Exposition and State Fair will be part of the documents produced tomorrow. The other items requested in request 0465 relate to agreements that Cyber Ninjas has with subcontractors and others. Those records pertain to the pending litigation and are not going to be produced and released by the Senate pending the final outcome of the litigation.
American Oversight did request an index of records or categories of records that have been withheld pursuant to section 39-121.01, subsection D, paragraph 2. A careful reading of the language of section 39-121.01 subsection D, paragraph 2 together with the internal reference of the definition of “agency” in section 41-1001, A.R.S. clearly exempts the Legislature from the provisions of that paragraph. An index of records or categories or records that are responsive but are being withheld isn’t required by law. An index isn’t being provided in this case but the I will furnish that the responsive documents that are being withheld are either subject to legislative privilege or attorney- client privilege.
If you have any questions or need further clarification please contact me at your earliest convenience.
Sincerely,
Norm
Norm Moore Arizona State Senate Public Records Attorney [email protected]
From: Roopali Desai
Hi Norm,
I am writing to follow up on your email below. Thank you for confirming that production of responsive documents of President Fann will be made on a rolling basis. I understand that a small production was made on the date of your email, May 24. However, no further records have been produced since then.
Can you please let us know when you plan to make the next and subsequent productions? If you cannot provide a production schedule, can you at least tell us when American Oversight can expect the next production and how many more productions you expect to make over what period of time?
Finally, can you please confirm that the Senate is not withholding any responsive records? If records are withheld, we request that a log be provided. I am glad to discuss this with you further if necessary so that we can work with you on the most efficient way to identify withheld records. Thank you.
Regards, Roopali
Roopali H. Desai
Coppersmith Brockelman PLC Office: 602.381.5478 | Fax: 602.224.6020
2800 N. Central Ave., Ste. 1900, Phoenix, AZ 85004 cblawyers.com | Facebook | LinkedIn
From: Norm Moore
-External Sender-
Roopali Desai,
I am writing to confirm receipt of your letter attached to the email sent by Sheri McAlister on Friday afternoon May 21, 2021 regarding American Oversight Public Records Requests dated April 6, 2021. Additionally, I am confirming that production of responsive documents of President Fann will begin later today on a rolling basis. Unless otherwise directed, the documents will be attached in pdf files in the email communications to American Oversight.
If you have any questions or need further clarification please contact me at your earliest convenience.
Sincerely,
Norm Moore Arizona State Senate Public Records Attorney [email protected]
From: Sheri McAlister
Good afternoon.
Please see the attached correspondence from Roopali Desai.
A hard copy will not be mailed.
Thank you.
Sheri McAlister Legal Assistant to Keith Beauchamp | Roopali Desai | Andy Gaona
Coppersmith Brockelman PLC Direct Dial: (602) 381-5493
2800 North Central Avenue, Suite 1900 Phoenix, AZ 85004 cblawyers.com | Facebook | LinkedIn
From: Chris Kleminich To: [email protected] Cc: Roopali Desai; Kory Langhofer; Thomas Basile; Norm Moore Subject: Responsive documents related to Public Records Requests of Arizona Senate President Fann Date: Friday, June 4, 2021 12:00:28 PM
-External Sender- To Whom It May Concern:
This email is in response to American Oversight’s Public Records Requests (0468, 0472, 0476) made to Senate President Karen Fann - with revised search terms contained in Ms. Roopali Desai’s letter of May 21, 2021 - regarding the planning and execution of the audit of the 2020 general election results in Maricopa County.
The responsive documents cover the time period of 11/3/20 to 5/22/21 and contain a total of 507 pages of electronic communications. Because of the large PDF file size, I have uploaded it to be accessible for viewing and downloading at the following link: https://statecraftlaw.box.com/s/z5ob3acrn8odsw6tzi3wk2irt4kcaqa2
If you have any questions or need further clarification, please contact myself or Mr. Moore at your earliest convenience.
Sincerely,
Chris Kleminich Arizona State Senate | Rules Attorney 602-926-5721 | [email protected]
From: Thomas Basile To: Andy Gaona Cc: Roopali Desai; Keith Beauchamp; Kory Langhofer Subject: Re: Additional Production/Search Term Questions Date: Thursday, June 17, 2021 12:39:32 PM Attachments: image001.png image002.png
-External Sender- Andy,
Our responses to each of your five points/questions are below in blue.
****
First, as it relates to the search parameters and approach outlined below in the context of the requests that have been made to the Senate itself, American Oversight generally agrees (subject to the limitations discussed further below). We have some proposed revisions to the search terms (with deletions indicated in strikethrough and additions in red):
@cyberninjas.com @donaldtrump.com
AZ congressional delegation Kelli Ward Sidney Powell Patrick Byrne Lin Wood Christina Bobb Jack Sellers Bill Gates Clint Hickman Steve Churcri Steve Gallardo Stephen Richer Liz Harris Phil Waldron Russ Ramsland Jovan Hutton Pulitzer Bobby Piton Cleta Mitchell Jenna Ellis Mark Meadows Doug Logan Mike Flynn Corey Lewandowski Benny Smith Amy Kremer Ron Watkins Seth Keshel Shiva Ayyadurai
This doubles the number of individuals included in the search, without providing email addresses or search terms. In order for us to review whether your proposed additions are reasonably tailored to the objective and not unduly burdensome, we’ll need to reduce your proposal to actual search terms (email addresses or keywords) and run them through the system; please let us know what specific search terms you propose. And depending on the number of “hits” on your proposed search terms, the Senate may revise or narrow the terms as necessary to ensure the searches are not overly broad.
To be clear, however, American Oversight’s agreement to this procedure and these revised search terms does not constitute a withdrawal of any of American Oversight’s public records requests, including those directed specifically to President Fann or Senator Petersen.
The objective here is to identify terms that yield a reasonable ratio of responsive records to non- responsive records—not to withdraw any records request or redefine responsiveness. I don’t believe we’ve ever suggested otherwise.
Second, as it relates to American Oversight’s requests to Senator Petersen (Nos. AZ-SEN-21-0466, AZ-SEN-21-0469, AZ-SEN-21-0473, AZ-SEN-21-0477, and AZ-SEN-21-0481), we’ve not received any documents to date from Senator Petersen. Does the Senate and/or Senator Petersen intend to respond to those requests? If so, when can we expect to receive responsive documents?
Petersen’s documents will be included in the Senate’s searches; his responsive, non-privileged records will be produced in due course. To the extent American Oversight wants to expedite the review and production process, its agreement on search terms would be helpful because (in order to avoid redundancies and inefficiencies) portions of the searches, review, and production are on hold until the Senate can finalize search terms.
Third, as it relates to American Oversight’s requests to President Fann, a reminder that those requests should be construed as standing requests. Does President Fann and/or the Senate intend to update its production? If so, when can we expect to receive responsive documents?
Yes, we read and understood your request. As to timing, the response is the same. We are attempting to prioritize first round reviews of the remaining custodians by finalizing search terms.
Fourth, we were told that you and the Senate were in the process of reviewing additional documents or communications received from Ken Bennett, including text messages. We thought those additional documents were to be uploaded at the end of last week, but none were. When can we expect an additional production of Bennett documents?
Ken’s responsive and non-privileged records have already been produced.
Finally, you told me Monday that Randy Pullen’s documents and communications were in the process of review and that you anticipated producing them sometime this week. Is that still the plan, and can you provide any more specifics about precisely when they’ll be produced?
We still anticipate producing them today or tomorrow.
Thomas Basile STATECRAFT PLLC 649 North Fourth Avenue, First Floor Phoenix, Arizona 85003 Desk: (602) 382-4066 Cell: (617) 458-6453
This transmission may be protected by the attorney-client privilege or the attorney work product doctrine. If you are not the intended recipient, please delete all copies of the transmission and advise the sender immediately.
From: Andy Gaona
Tom:
Thanks for your email. Below, I address the question you raise, and raise several related issues about the Senate’s ongoing document production to American Oversight.
First, as it relates to the search parameters and approach outlined below in the context of the requests that have been made to the Senate itself, American Oversight generally agrees (subject to the limitations discussed further below). We have some proposed revisions to the search terms (with deletions indicated in strikethrough and additions in red):
@cyberninjas.com @donaldtrump.com
AZ congressional delegation Kelli Ward Sidney Powell Patrick Byrne Lin Wood Christina Bobb Jack Sellers Bill Gates Clint Hickman Steve Churcri Steve Gallardo Stephen Richer Liz Harris Phil Waldron Russ Ramsland Jovan Hutton Pulitzer Bobby Piton Cleta Mitchell Jenna Ellis Mark Meadows Doug Logan Mike Flynn Corey Lewandowski Benny Smith Amy Kremer Ron Watkins Seth Keshel Shiva Ayyadurai
To be clear, however, American Oversight’s agreement to this procedure and these revised search terms does not constitute a withdrawal of any of American Oversight’s public records requests, including those directed specifically to President Fann or Senator Petersen.
Second, as it relates to American Oversight’s requests to Senator Petersen (Nos. AZ-SEN-21-0466, AZ-SEN-21-0469, AZ-SEN-21-0473, AZ-SEN-21-0477, and AZ-SEN-21-0481), we’ve not received any documents to date from Senator Petersen. Does the Senate and/or Senator Petersen intend to respond to those requests? If so, when can we expect to receive responsive documents?
Third, as it relates to American Oversight’s requests to President Fann, a reminder that those requests should be construed as standing requests. Does President Fann and/or the Senate intend to update its production? If so, when can we expect to receive responsive documents?
Fourth, we were told that you and the Senate were in the process of reviewing additional documents or communications received from Ken Bennett, including text messages. We thought those additional documents were to be uploaded at the end of last week, but none were. When can we expect an additional production of Bennett documents?
Finally, you told me Monday that Randy Pullen’s documents and communications were in the process of review and that you anticipated producing them sometime this week. Is that still the plan, and can you provide any more specifics about precisely when they’ll be produced?
Thanks,
Andy Gaona 602.381.5486 [email protected]
From: Thomas Basile
-External Sender-
Hi Andy,
As discussed, the Senate is attempting to settle on an agreed-upon set of search parameters that would satisfy the public records requests of both American Oversight and various media outlets that also have submitted requests, so that it can avoid duplicative or iterative document searches and reviews.
An initial search of the terms “audit” or “recount” across all Senate emails between November 3, 2020 and June 9, 2021 yielded an unmanageable number of documents (in the hundreds of thousands). A significant majority of received emails containing these terms were substantively identical form letters that constituents had sent to their senators.
In an effort to pare back the universe of documents to a more manageable number, we are tentatively proposing the following parameters to govern the Senate’s searches and review of documents on its internal system:
1. All senators’ sent emails containing the term “audit” or “recount” between November 3, 2020 and the present;
2. All senators’ sent and received emails involving any of the following parties between November 3, 2020 and the present: a. A communicant using the domain name “@cyberninjas.com” b. A communicant using the domain name “@donaldtrump.com” c. Any of the following individuals: i. Any member of the Arizona congressional delegation ii. Kelli Ward iii. Jack Sellers iv. Bill Gates v. Clint Hickman vi. Steve Chucri vii. Steve Gallardo viii. Stephen Richer ix. Sidney Powell x. Patrick Byrne xi. Lin Wood xii. Christina Bobb
Separately, the Senate will produce invoices, payment records, etc. in connection with the audit.
As noted, these parameters have not yet been finalized but any thoughts/reactions you can share would be useful as we try to get everyone on the same page.
Thanks
--Tom
Thomas Basile STATECRAFT PLLC 649 North Fourth Avenue, First Floor Phoenix, Arizona 85003 Desk: (602) 382-4066 Cell: (617) 458-6453
This transmission may be protected by the attorney-client privilege or the attorney work product doctrine. If you are not the intended recipient, please delete all copies of the transmission and advise the sender immediately.
From: Andy Gaona
Hi, Kory:
I got your voicemail late yesterday about search terms and tried you right back. Let me know if you have a few minutes today when we can chat about whatever questions you have.
Relatedly, do you know when we can expect the next batch of responsive documents to be uploaded to the Reading Room?
Thanks,
Andy Gaona ______Coppersmith Brockelman PLC Office: 602.381.5486 | Fax: 602.224.6020
2800 N. Central Ave., Ste. 1900, Phoenix, AZ 85004 cblawyers.com | Facebook | LinkedIn
This message and any of the attached documents contain information from the law firm of Coppersmith Brockelman PLC and may be confidential and/or privileged. If you are not the intended recipient, you may not read, copy, distribute or use this information and no privilege has been waived by your inadvertent receipt. If you have received this transmission in error, please notify the sender by reply e-mail and then delete this message. Thank you.