Monday, July 22, 2013

UPDATE: Klayman Out Of Recall Arpaio Constitutionality Case, Judge Deciding Whether To Rule On Merits and/or Sanctions

The Judge deciding whether or not to rule on the merits of the lawsuit filed by friends of Maricopa County Sheriff Joe Arpaio to declare an attempted recall against him as being unconstitutional has agreed to let high-profile attorney Larry Klayman out of the case, after he apparently mislead the court (and his co-counsel) into believing that he had filed paperwork with the Arizona Bar.

Maricopa County Superior Court Judge Lisa Flores signed the Order Rescinding the Pro Hac Vice Admission of Larry Klayman (minute entry below), following the somewhat-surprising acknowledgment that Klayman had NOT in fact filed the application with the State Bar of Arizona necessary for an out-of-state attorney to represent Citizens To Protect Fair Elections in an Arizona Court, and that he had represented to the Court that the application was filed.

The State Bar confirmed to Arizona's Politics that Klayman's actions are being investigated.  The plaintiffs are now being solely represented by former Arizona lawmaker - and current candidate for a District 15 House seat - David Burnell Smith.

Burnell Smith has reversed the strategy that Klayman apparently controlled regarding continuing the legal action even after the recall effort failed to turn in petition signatures at the May 30 deadline.  Klayman told Arizona's Politics and the Court that there still needed to be a ruling on the merits of the case because it was a matter capable of repetition yet avoiding judicial review (much like the issue that led to the Supreme Court's Roe v. Wade ruling in 1973).

The risk for Klayman and Burnell Smith in that strategy was (is) that the recall defendants also have a pending Motion for Sanctions against both the Plaintiffs and their legal counsel.  That may explain why Burnell Smith began asking all of the defendants (including Maricopa County, which would have had to conduct the recall election if the Arpaio opponents had been successful) before the July 11 status conference if they would stipulate to dismiss the entire case.

At the July 11 telephonic status hearing, the Judge did dismiss the County defendants, but listened to Respect Arizona's (the committee that was coordinating the recall effort) counsel, Christopher Ford, use Klayman's rationale to argue for a ruling on the merits.  The Minute Entry (posted below) indicates that Ford offered to forego oral argument on the complaint and the motions, and Burnell Smith then (in a motion filed July 18) withdrew his request for oral argument.

However, Ford tells Arizona's Politics that he does hope that the Judge still plans to rule on the merits;  he was not pleased that Burnell Smith is trying to avoid the Motion for Sanctions:  "Arpaio's yes-men brought this frivolous lawsuit as part of a multiprong effort to thwart Respect Arizona's recall effort, and unfortunately their tactics were successful on the political stage, but now that their legal positions are to withstand court scrutiny, they run for cover.

Judge Flores is now "determin(ing)" whether she wishes to hear oral argument anyway;  alternatively, she could decide to argue on the merits and the sanctions request based on the pleadings, or refuse to rule on the merits and dismiss the remains of the case.

The issue that the Plaintiffs' based their complaint on is that the recall effort violated the Arizona Constitution by filing the recall within six months of the Sheriff being sworn in for his sixth term; the Constitutional provision does not define whether it only applies to the six-month period after an elected official's first term, or whether a new six-month period starts each time the official wins re-election and is sworn in for a subsequent term.  The Arizona statutes do specify that it only applies to the first time the official is elected;  plaintiffs claim that statute is unconstitutional.

July 11 Minute Entry: 

July 15 Minute Entry: 

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