A judge will hear arguments Wednesday afternoon on why a State Senate committee wants a court order to hold Maricopa County officials in contempt, given that the legislature has had the same power for nearly 100 years.
Judge Randall Warner of the Maricopa County Superior Court was asked Monday by Senate President Karen Fann and Senate Judiciary Committee Chairman Eddie Farnsworth to order Maricopa County’s Board of Supervisors to “comply in full” with two legislative subpoenas related to the 2020 General Election.
County officials announced last week they would not meet a Friday deadline set forth in the subpoenas. The Fann-Farnsworth special action complaint was filed one business day after Maricopa County officials asked another superior court judge to quash the legislative subpoenas for being unlawful.
The complaint seeks expediated handling of the case as Congress meets Jan. 6 to certify the U.S. Electoral College votes.
However, Warner spent most of Monday’s show cause hearing addressing his concern that the judiciary may not have jurisdiction to get involved in the subpoena dispute. One of the issues is that state law provides for the legislature to hold people in contempt to failing to comply with subpoenas.
And that includes the authority to direct the Sergeant-at-Arms to take someone in custody for non-compliance.
Warner also granted permission to three Democratic members of the Senate Judiciary Committee to file an amicus or friend of the court brief. He gave the same option to several of Arizona’s top Republicans, including the 11 people who were chosen as Presidential electors.
News of the competing legal actions has created quite a stir within the legislature, as well as frustration.
Nancy Barto (LD15) called the decision by the Maricopa County Board of Supervisors to challenge the subpoenas “astonishing” and “truly confusing.”
“If you are bewildered by this action, you aren’t alone,” she said, adding that Maricopa County officials cited “privacy” concerns in their legal action but made “no attempt to implement one of many possible privacy accommodations while still complying the subpoena.”
“Getting the truth and ensuring election integrity has been our goal from the outset,” Barto said. “Our caucus is considering next steps and I will continue to keep you informed.”
The dispute over Maricopa County’s refusal to comply with the subpoenas is not the first time a legislative subpoena has been challenged in the courts.
In 1964, the Arizona Supreme Court affirmatively ruled it “is within the powers of legislative committees to conduct investigations” and “to issue subpoenas and to summon witnesses generally and punish them for contempt if they refuse to answer relevant questions or produce records.” (Buell v Superior Court of Maricopa County.)
The supreme court’s opinion cited back to a 1897 U.S. Supreme Court decision. It also noted that Arizona statutes set forth options for legislators when faced with direct contempt of a subpoena.
ARS 41-1153 states the senate or house “may, by resolution entered in the Journal,” charge a witness with contempt who “neglects or refuses to obey a legislative subpoena.” That same witness may then “be arrested by the sergeant-at-arms and brought before the senate or house” under the authority of a duly signed and countersigned resolution.
In addition, ARS 41-1155A(3) states that “refusing to attend, or to be examined as a witness,” by the house, senate, “or a committee” is punishable as contempt. And according to ARS 41-1154, disobeying a legislative subpoena is a Class 2 misdemeanor.