BY LINDA BENTLEY | AUGUST 14, 2013
Judge declines to enter judgment in CPFER v. Respect Arizona
The snafu over Klayman’s pro hac vice application became moot along with the constitutionality of A.R.S. § 19-202(A)
PHOENIX – Maricopa County Superior Court Judge Lisa Flores declined to exercise the court’s discretion to enter a declaratory judgment in Citizens to Protect Fair Election Results (CPFER) v. Respect Arizona as to the constitutionality of A.R.S. § 19-202(A), which states: “A recall petition shall not be circulated against any officer until he has held office for six months, except that a petition may be filed against a member of the legislature at any time after five days from the beginning of the first session after his election. The commencement of a subsequent term in the same office does not renew the six month period delaying the circulation of a recall petition.”
The last sentence appears to conflict with the Arizona Constitution, which allows for no such exception.
Back in March, Jeff Lichter, Jim Wise and CPFER filed a complaint in Maricopa County Superior Court against Respect Arizona, its principals, Secretary of State Ken Bennett and various other county officials to contest Respect Arizona’s recall effort against Sheriff Joe Arpaio before six months had passed from the time he was sworn in, as required by the Arizona Constitution.
Attorney David Burnell Smith was representing the plaintiffs as local counsel while Attorney Larry Klayman, founder of Judicial Watch and Freedom Watch, was to appear pro hac vice, whereas an out-of-state lawyer may be admitted to practice in a local jurisdiction for a particular case only.
Klayman’s office prepared the pro hac vice application, which was then sent to Smith’s office with instructions to submit and pay the filing fee to the Arizona State Bar.
The Plaintiffs reviewed the complaint, paid Smith the filing fee and pro hac vice application fee, so Smith could take the appropriate steps to move for Klayman’s pro hac vice entry in the case.
Although Klayman was entered into the case as appearing pro hac vice, it appears Smith neglected to file Klayman’s application with the bar.
Klayman’s pro hac vice status was since withdrawn.
Although Respect Arizona failed to obtain the requisite number of signatures to force a recall, the question raised is constitutional in nature – whether state statute can trump the Arizona Constitution – and still may eventually need to be resolved.
While the Arizona Constitution requires an elected official to be in office for a minimum of six months before he can be recalled, state statute makes an exception for those who have been reelected to the same office.
CPFER asserted state statute cannot change the provisions of the Constitution and would allow those who do not like election results to simply force another election.
And, as Klayman has pointed out, judges as well as every other elected official in Arizona could be affected.
In the interim Flores’ ruling means the snafu over Klayman’s pro hac vice application became moot along with the failed recall attempt of Sheriff Arpaio.
The case was originally assigned to Judge Michael Herrod, who, after two months, announced he might have a potential conflict.
Herrod removed himself from the case on June 16 upon the defendants filing a motion for a change of judge or recusal.
Prior to being appointed to the bench, Herrod was a managing member of a law firm that represented Arpaio in Melendres v. Arpaio, a federal case accusing Maricopa County Sheriff’s Office of using race as a factor in determining whether or not a person is in the country legally.
However, the case was reassigned to Judge Lisa Flores, who, based on her history with Arpaio and MCSO, would appear to be biased against him.
Although Arpaio is not a party to the case, if Herrod recused himself over a potential conflict, it appears Flores would have had a conflict as well, only biased against the sheriff.
Flores was very vocal about her beef with the sheriff’s office back in 2009 after Maricopa County Superior Court Judge Gary Donahoe ordered MCSO Detention Officer Adam Stoddard to apologize or go to jail for contempt over an incident that took place in Flores’ court.
Stoddard was caught removing a confidential document from a defense attorney’s file to have it copied.
Stoddard opted to go to jail rather than apologize.
Following that incident, Flores complained that MCSO was either delivering inmates to court extremely late or not at all.
At the onset of the case, Klayman said he believed the case should still go forward even if the recall effort failed, citing Roe v. Wade.
He pointed out the case was allowed to proceed despite the fact Jane Roe’s appeal would have ordinarily been deemed moot because she had already given birth and she lacked standing to sue as a pregnant woman.
In her minute entry ruling, Flores stated “declaratory judgment actions must be based on actual controversies … Courts will not hear cases that seek declaratory judgments that are advisory or answer moot or abstract questions. Declaratory relief should be based on an existing state of facts, not facts that may or may not arise in the future. An exception is that a court may decide a moot question or abstract proposition if the issue is one of great ‘public importance’ or one that is ‘capable of repetition yet evading review,’” citing Thomas v. City of Phoenix.
Flores said the issue would only arise again in a very limited circumstance – the filing of a recall petition within the first six months of an elected official’s re-election to an office he previously held.
She stated, “In the unlikely event that the situation arises again in the very near future, the issue could be raised in state court and there is no reason to believe it would evade review.”
Respect Arizona sought an award of sanctions and attorney fees against the plaintiffs or their counsel, claiming the complaint was frivolous and an abuse of process.
However, Flores stated the matter was being dismissed for mootness, not based on any finding on the merits of the parties’ arguments.
Based on the briefs filed in the case, Flores did not find the plaintiffs’ claims frivolous or improperly motivated and denied the defendants’ motion for sanctions and attorney fees.