The Daily Agenda: The defense rests
The Daily Agenda: The defense rests
A new guard means new legal takes ... It's Inauguration Day (except public this time) ... And our lawmakers all just learn on the job.
Attorney General Kris Mayes’ refusal to challenge the appellate court ruling upholding lesser restrictions on abortion raises an interesting question: Who will defend the allegedly unconstitutional laws passed by the Republican Legislature in court?
Arizona is undergoing a seismic shift in its balance of power. After more than a decade of Republican governors and attorneys general, both positions are now occupied by Democrats. And with that change, the state’s position on many ongoing and future legal battles is also likely to change.
There are already signs a shift is in the works. In several ongoing legal battles, outside lawyers who have long represented former AG Mark Brnovich’s office are filing notices that they’re no longer part of the legal team. As one lawyer pointed out, it only makes sense for the state to switch lawyers if it’s also switching its legal position. And in her first week on the job, Gov. Katie Hobbs is already pulling the plug on her predecessor’s lawsuit attempting to wrest control of the 60-foot swath of land stretching along the U.S.-Mexico border away from the federal government, Capitol Media Services’ Howard Fischer reports.
The state’s laws are entitled to a defense. But that doesn’t mean the attorney general always does the job. Back in 2010, for example, when Arizona last had a Democratic AG, Terry Goddard initially said he didn’t want to defend the state’s hardline immigration law, SB1070. Then-Gov. Jan Brewer tried to have him thrown off the case and eventually hired outside lawyers to do the job after he bowed out. More recently, Brnovich has declined to defend the state on a handful of issues, including a lawsuit from the Arizona Republican Party challenging the state’s early voting system as unconstitutional.
At the time, then-Secretary of State Katie Hobbs panned Brnovich’s refusal to defend early voting as another political stunt, but Brnovich’s judgment on what wasn’t worthy of defense wasn’t purely partisan: He also refused to defend lawmakers’ attempt to outlaw filming police and refused to defend the state’s “no promo homo” law when it was challenged in court. Brnovich argued that neither law was constitutionally defensible and both decisions were met with praise from liberals.
But with a new Democratic AG in office, Republican lawmakers are already attempting to force the AG to defend all state laws, regardless of whether she thinks they’re legally defensible or not.
Republican Sen. John Kavanagh, who sponsored the police filming law that no lawyer would defend, has already prefiled legislation that would take away the AG’s autonomy to pick and choose which laws she’ll defend. His Senate Bill 1021 states that the AG can only be relieved of their duty if two-thirds of the House and Senate judiciary committees vote to allow them to not defend a law. Of course, that bill doesn’t stand much chance of being signed into law by Hobbs.
But there’s another option. Lawmakers have a right to intervene in lawsuits challenging their laws as unconstitutional, and they’re generally allowed to intervene in other lawsuits if they can prove they have standing, just like any other litigant. And if the AG or governor doesn’t step up to defend Arizona’s laws, a judge might be more amenable to allowing lawmakers to do it instead.
Keen observers of the Legislature have noted that the state Senate recently hired two sought-after employees of Brnovich’s office, former Assistant Chief Deputy Josh Kredit and former Assistant Solicitor General Kate Sawyer. We asked Senate Republican leadership if it was gearing up to be the go-to legal defender of Republican laws, and while Spokeswoman Kim Quintero didn’t exactly say that was the plan, she didn’t rule it out either.
“The Senate has always, and will continue to step in to defend our state’s laws whenever necessary,” she wrote to us. “However, we have an expectation that our Attorney General and Governor will fulfill their duties to uphold and defend the laws of the land. We’ll have to wait and see how this new direction in leadership unfolds to determine what additional work we’ll need to do moving forward.”
Of course, lawsuits are massively expensive. But the Legislature writes the state budget, so lawmakers could write in millions of extra dollars to beef up their legal departments or hire more outside council, should they disagree with the governor or AG’s legal stance.
There’s one more wrinkle in the question of who will step up to defend lawmakers’ potentially unconstitutional bills: With a Democratic governor, most of those fights are going to be retrospective. Until Hobbs leaves the Governor’s Office, constitutionally controversial bills getting signed into law is likely a thing of the past.
Tough crowd: The Arizona Republic editorial board gave new Gov. Katie Hobbs a thorough thrashing on her second full day in office, taking her to task for the dark-money slush fund paying for her inaugural ceremony today. Noting that she “avoided debates” and “provided generalities and bromides in place of policy,” the board called for her to act with transparency by releasing the names of inauguration donors.
“Private donors aren’t shelling out tons of money for the inauguration out of the goodness of their hearts. They’re buying access to the new administration,” the editorial board wrote.
Out with the old: After Hobbs told him to find another job, Heston Silbert, the director of Arizona’s Department of Public Safety, announced he is departing, the Republic’s Perry Vandell reports. Longtime Arizona Department of Transportation Director John Halikowski also announced he would resign. And Department of Corrections Director David Shinn has officially entered forced retirement at Hobbs’ request as of yesterday after announcing his departure last month. Hobbs hasn’t announced replacements for Shinn, Silbert or Halikowski, but named a handful of people as part of her “public safety cabinet” last week. She also announced a handful of new hires yesterday, including her general counsel Bo Dul.
In with the new: Continuing her 100 days of action, Hobbs yesterday ordered the Arizona Department of Administration to develop a plan to expand paid family sick leave for state employees. Meanwhile, ABC15 reporter Jordan Bontke tagged along with a safety-glasses-wearing Hobbs as she helped fix up an Avondale mobile park home. Hobbs said she wants to pass legislation to expand low-interest financing for housing developments and incentivize local municipalities to provide land for affordable housing.
Better luck next time: The U.S. House is still leaderless, adjourning yesterday evening after six rounds of voting failed to net 218 supporters behind one speaker candidate. Arizona Republican Reps. Andy Biggs, Paul Gosar and Eli Crane are leading the charge against frontrunner Kevin McCarthy, while Reps. Juan Ciscomani, Debbie Lesko and David Schweikert are all behind the establishment pick.
2020 never ended: Phoenix’s 15 village planning committees (which are kind of like city councils for places like Ahwatukee that aren’t actually cities) are still meeting virtually nearly three years after the pandemic started and months after the Phoenix City Council resumed in-person meetings — and nobody seems to know why. The Phoenix City Council, which governs the entities, hasn’t authorized the village planning committee meetings to go back to in-person, but members of the planning committees haven’t been able to get a straight answer about why, Paul Maryniak writes in Ahwatukee Foothills News.
Not enough water: As developers prepare to bring nearly 1 million more residents to the Buckeye area, Kathleen Ferris, a former director of the Arizona Department of Water Resources, wrote an op-ed calling on Hobbs to release the results of a long-awaited new groundwater model that may show the area doesn’t have the requisite 100-year assured water supply.
And it’s hazardous anyway: The Arizona Department of Environmental Quality is planning to test more than 1,200 public water systems for hazardous chemicals as the first step in a potential cleanup plan that will probably be hampered by expensive technology and the fact that the federal government hasn’t actually required cleanup, the Republic’s Clara Migoya reports.
Blimps are sneaky: U.S. Customs and Border Protection is reducing its fleet of blimps, including taking down one that has been hovering over Nogales for the last six months. The blimp was put up without stakeholder input, and locals weren’t exactly thrilled to see it. But they had just as little warning that it was leaving, the Nogales International’s Jonathan Clark writes.
An annotated calendar: The Pinal County Board of Supervisors met yesterday to go over the myriad problems in the general election that caused their recount to differ significantly from the canvassed results. If you’re just getting caught up on the issue, check out Rachel’s story in The Guardian for details on what went wrong. As we noted yesterday, Pinal County Attorney Kent Volkmer faced accusations about withholding the information from the courts and candidates, but Volkmer laid out a full calendar of who knew what when and how a “cone of silence” from the courts prevented the county from discussing the problems they were finding with anyone. He said the county wasn’t sure if they were outliers on the recount even because other counties and the state couldn’t share how it was going, either.
How mad are you about this, T.J. Shope?: The widening project for Interstate 10 between Casa Grande and Phoenix won’t be getting a $360 million bump from the feds to match the $400 million in state dollars set for the project, Pinal Central’s Jodie Newell reports. Casa Grande Mayor Craig McFarland said he was told the rejection came because the feds want to see more “intermodal” projects that include other modes of transportations, like bikes and walking paths.
“I responded by saying, 'Are you kidding me? You want us to put a bike path on the interstate? Will that get us the $360 million?'” McFarland said.
It’s gonna be a rough four years: Although some Arizona lawmakers are calling for the Legislature to attempt to overturn the will of voters who elected Hobbs as their next governor, House Speaker Ben Toma isn’t going down that road, he told the Arizona Daily Star’s Tim Steller. The threat of decertifying her election, while unrealistic, is just one of the many problems Hobbs will face as governor, Steller notes, adding that former Gov. Doug Ducey told Hobbs he’s only a phone call away if she needs anything, but that apparently doesn’t apply to freeing up her ability to spend the ARPA funds that he locked in on his way out of office.
One down, too many more to go: The FBI arrested a Texas man for making a variety of threats against elections officials, including Maricopa County Recorder Stephen Richer, whose personal address he posted online.
“Hypothetically, a mass shooting of poll workers and election officials in these highly suspect precincts might be the way to go,” Francis Federick Goltz wrote online.
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