Arizona Senate President: Courts Can't Force Public Record Laws Against Lawmakers

Jun 21, 2021

By Howard Fischer
Capitol Media Services
PHOENIX -- Senate President Karen Fann is taking the position that Arizona courts cannot force her or any other member of the Arizona Legislature to comply with the state's Public Records Act.


In a new court filing, attorney Kory Langhofer who represents the Prescott Republican and the entire Senate, is asking Maricopa County Superior Court Judge Michael Kemp to throw out a claim by a self-described nonpartisan watchdog group to get access to all documents and materials related to the Senate's audit of the 2020 election results.
Langhofer said the Senate has or will produce documents in its possession. Ditto with those in the possession of Ken Bennett who was tapped by Fann to be her liaison with Cyber Ninjas, the private company hired to conduct the audit.
The only exception, Langhofer said, are those which are protected as privileged or confidential.
He said, though, what American Oversight wants are documents that are in the hands of Cyber Ninjas or other companies it has, in turn, hired as subcontractors.
Langhofer said the Public Records Act does not apply to private companies. And he rejected arguments by attorney Roopali Desai that the records are public because the only reason Cyber Ninjas got the materials in the first place was because they were subpoenaed by the Senate. But Langhofer has a backup legal argument just in case the judge does not read the scope of the Public Records Act as narrowly as he does. He told Kemp he has no jurisdiction in the fight.
The Arizona law spells out that public records and other matters in the custody of any officers "shall be open to inspection by any person at all times during office hours.''
Langhofer concedes that the Senate is a "public body'' and lawmakers are "public officers'' who, in any other circumstance, would be covered by the law.
Only thing is, he said, they are not subject to it.
"The Arizona Constitution entrusts each house of the Legislature plenary power to order its own internal procedures and affairs,'' Langhofer wrote.
More to the point, he said even if there is a question -- a point he is not conceding -- courts are powerless to determine if lawmakers need to comply with the laws they enacted.
"Statutory measures (such as the Public Records Act) necessarily subordinate to this constitutional function,'' Langhofer wrote. "Allegations concerning the legislature's compliance with them present nonjusticiable political questions.''
If the courts agree, that would do more than leave American Oversight without a legal remedy. It also could set the stage for setting a new precedent which could leave all Arizonans powerless to use the Public Records Act to demand everything from legislative documents to letters sent to lawmakers and texts they send and receive.
But Dan Barr, attorney for the First Amendment Coalition, said he believes courts will reject any effort by Fann and her legal adviser to rule that lawmakers need not comply with the Public Records Act. He said they are clearly public officers.
"I don't buy this notion that even though the state legislature, passing the public records law, didn't have the power to bind itself to the law,'' he said. "That's sort of nuts.''
And Barr said that while Langhofer is relying on the constitutional provisions allowing lawmakers to set their own rules, the laws on public records actually predate the 1912 Arizona Constitution.
He also brushed aside claims that courts have no right to tell another co-equal branch of government how they have to behave.
"The (U.S.) Supreme Court decided years ago ... about courts having authority to tell other branches of government what they can and can't do,'' Barr said.
"Courts strike down statutes all the time,'' he said. "Courts rule on actions taken by the governor all the time.''
The lawsuit, filed last month, does not seek access to the ballot themselves.
Maricopa County turned them over under subpoena. And they are not public records.
And Fann already has made public the contract documents between the Senate and Cyber Ninjas.
But the lawsuit says at least part of what is missing are any contracts involving third-party vendors that the Senate directly or indirectly retained through Cyber Ninjas.
Desai also wants any records reflecting the audit's budget and any external funding that may have been received.
Fann has told Capitol Media Services the only thing she knows about is the $150,000 that the Senate has agreed to pay.
That clearly is not covering the cost of the audit which has now been going on for months. And the America Project, started by a millionaire who says the election results were fraudulent, is trying to raise $2.8 million "to support and pay for expenses of the Maricopa Audit.''
It was founded earlier this year by Patrick Byrne, the former CEO of overstock.com. Byrne, in an interview earlier this year with ntd.com, said he was setting up the organization to continue the right over the 2020 election results.
"It was a fraudulent election,'' he told the television network. "It didn't end for us on Jan. 20.''
So far the group, operating a site at "fundtheaudit.com,'' says it has raised more than $1.9 million.
Fann said she has been promised there will be an accounting at the end of the audit. But questions remain as to how much will be made public.
The American Project was set up under a section of the Internal Revenue Code as a "social welfare organization.'' That means it is not legally requires to disclose the names of the people who donate.
Desai said her contention that the records being sought from Cyber Ninjas and the other contractors are public are buttressed by statements made by Fann.
The Senate president has said that the purpose of the audit is not to overturn the election results that showed Joe Biden defeating Donald Trump. Instead, Fann said, senators want to examine how the balloting process was handled, at least in Maricopa county, giving information to senators to decide whether changes need to be made in laws governing the conduct of future elections.
That, Desai said, makes everything the Senate -- and its contractors -- are doing to accomplish that goal a matter of public records.
Langhofer, however, said Kemp has no choice but to dismiss the case.
"When adjudication of a claim will entail incursions into the internal domain of the legislature or executive, respect for those coequal branches necessitates dismissal,'' he said. And Langhofer said if there are questions, then they have to be resolved within the branch of government itself or, ultimately, by the people who elect them.
A hearing on the issue is set for next month.