By Howard Fischer
Capitol Media Services
PHOENIX -- An Arizona judge has ordered two Cochise County supervisors to pay more than $34,000 in legal fees in their losing bid to keep from certifying the results of the 2022 general election.
But whether Peggy Judd and Tom Crosby have to pay it out of their own pockets or can get county taxpayers to pick up the tab remains unclear.
In a new order, Pima County Superior Court Judge Casey McGinley said it was necessary for then-Secretary of State Katie Hobbs and the Arizona Alliance of Retired Americans to go to court to force the board to perform its duties after Judd and Crosby refused.
McGinley agreed and, in a Dec. 1 order, concluded the board had a "non-discretionary duty to canvass'' the vote.'' And, following that order, the board -- or at least two of its members -- showed up at a meeting to comply.
But that, the judge said in his new order, didn't end the matter.
He cited a state law which requires courts to award fees and other expenses to anyone who successfully sues of public officer "to perform an act imposed by law as a duty to the officer,'' a procedure known as seeking a writ of mandamus.
And McGinley said that the Secretary of State's Office and AARA, a local affiliate of an organization founded by the AFL-CIO made up of retired trade union members, were the successful parties.
The judge also rejected various arguments presented by attorneys representing Crosby and Judd, including the claim that county the taxpayers may bear the burden of those fees.
Still, McGinley did not give the lawyers everything they sought.
The attorneys for AARA got $21,530 of the more than $33,000 they claimed. And lawyers for Adrian Fontes, who is now secretary of state, were awarded $12,525, about $4,000 less than requested.
There also was another approximately $2,100 in costs.
Of note is that McGinley said Ann English, the lone Democrat on the three-member board, is not liable for any of the costs.
"She did not oppose the relief sought by plaintiffs, and in fact joined in the request that the court issue the writ of mandamus,'' the judge wrote.
Crosby told Capitol Media Services Thursday that he did nothing wrong.
He said that all McGinley told him to do was "canvass'' the vote, not to approve it.
"Canvass can be a verb or noun,'' Crosby said.
"If it's a verb, the way he used it ... it means check and inspect the results,'' he said. "I already had.''
And Crosby said that inspection led him to believe that people who had spoken to the board that led him to believe that the machines had not been properly accredited.
"The allegation that I defied a judge's order is true,'' he said.
Judd said she would have no response.
McGinley's order came after Judd and Crosby, the two Republican supervisors, balked at completing the canvass after the November general election amid what they said were questions about whether the machines used to tabulate the ballots had been properly certified. That refusal despite repeated assurances by state Elections Director Kori Lorick that the machines met all legal standards.
But even if there were issues, McGinley said in his December order, that was not an excuse to ignore the clear language of the statutes.
"Whatever challenge or concern that the board or its members or the public may have about the certification or licensure of the tabulating equipment is not contemplated'' by the law, the judge said.
The judge also rejected a request by Crosby to give the board another day, until its regular scheduled meeting, to comply.
Judd said after the December ruling that she was not happy being forced by McGinley to approve the certification.
"We have an obligation to ensure that our elections are fair and good,'' she said. But Judd acknowledged the validity of the court order which is why she agreed to be one of the votes to eventually certify the results.
"I am a rule-of-law person,'' she said. And Judd said that order, coupled with "my own health and situations going on in our life'' means "I must follow what the judge did today.''
Still, Judd made clear that she believes that, despite what McGinley ruled, her own reading of the election statutes convinces her that she was correct in saying that the results cannot be certified until all the questions about their accuracy had been answered.
With Judd and English in attendance, the results were certified. Crosby did not show up.
The judge's December decision to force a formal canvass came after Lorick said that the state, facing its own deadline to formalize the results, would go ahead and certify the returns without the approximately 47,000 from Cochise County residents if the supervisors did not act by the date of the state canvass.
Had that happened it would have changed the results of several elections, including the race for state schools chief and for the new representatives from Congressional District 6.
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