Wednesday, August 14, 2013

READ: Judge Dismisses Arpaio Recall Lawsuit; Declines To Rule On Constitutionality Or Frivolousness Of Suit

Barring a surprise appeal or further litigation, the lawsuit filed against the organizers of the (now-failed) attempt to recall Maricopa County Sheriff Joe Arpaio is dead.  Maricopa County Superior Court Judge Lisa Flores dismissed the case today (minute entry dated Sat. Aug. 10 is posted below), declining to rule on either the constitutionality of starting a recall within the first six months of an elected official's re-election or whether filing the lawsuit was improper enough to warrant sanctions against the plaintiffs and/or their attorneys.

Judge Flores noted that the case became moot once Respect Arizona failed to submit the petition signatures they had collected before the May deadline.  Nevertheless, both parties had told her that they wanted her to make a decision on the constitutionality of the quick recall effort;  David Burnell Smith and Larry Klayman, co-counsel* for Citizens To Protect Fair Election Results, compared the issue to that in Roe v. Wade, a case involving abortion that the U.S. Supreme Court had decided to rule on even though the pregnant woman was no longer pregnant** because it was a situation that could repeat while evading judicial review because of the short window.

Flores decided "that this issue would rise again only in a very limited circumstance", and that even if it did, it should not evade review.  She also decided that the state Legislature is the appropriate body to address this issue, even though the plaintiff's argument is that the Legislature did enact an unconstitutional statute that prompted this case.

The defendants had filed for sanctions against CPFER and/or its attorneys, claiming that the lawsuit was frivolous and solely intended to harass, intimidate and delay the recall effort.  Judge Flores denied that motion because she was dismissing the case for mootness and not on the merits of the arguments.

Burnell Smith told Arizona's Politics that he does agree with the judge's finding of mootness, and that she "right on not awarding attorney fees against the Plaintiffs or their Counsel."

However, Christopher Ford, the attorney for the defendants, "strongly" and "respectfully" disagreed.  He noted that "it is not the Legislature's job to rule on or review the constitutionality of its own legislation. That is the court's job."  Ford also challenged the judge's decision on the public importance of the case, and the possibility that a future case could also evade review:  "They filed the case for political reasons, then dragged it out just long enough for the issue to become moot."

The defendants could conceivably file a separate action pursuing the legal fees and/or sanctions, but given that a lack of funding was a key reason why they failed to gather enough signatures to file, such a move would seem unlikely.

* Larry Klayman, a nationally-known attorney, was the initial attorney for the Arpaio supporters; however, he had to be removed from the case because he did not file the proper documents to be an out-of-state attorney representing clients in an Arizona court.  The State Bar of Arizona was investigating Klayman's actions.

** The Supreme Court's opinion does not make it clear what the outcome of "Roe's" pregnancy was; however, it became known later that she had had the baby, who was eventually adopted.

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