The Arizona Senate President and Senate Judiciary Committee Chairman cannot use the court system to hold Maricopa County’s Board of Supervisors in contempt for disregarding two subpoenas, at least not using the statutes cited in their legal filing, a judge ruled Wednesday.
Judge Randall Warner has given President Karen Fann and Chairman Eddie Farnsworth an opportunity to amend their case against the Maricopa County board in a dispute over legislative subpoenas issued Dec. 15 which seek almost every record, document, and piece of equipment related to Maricopa County’s handling of the recent 2020 General Election. The county refused to comply by a Dec. 18 deadline.
Warner’s ruling made it clear that state law authorized Fann and Farnsworth to issue legislative subpoenas. And state law prescribes a manner for the legislature to enforce its subpoenas, the judge ruled.
The problem is Fann and Farnsworth did not follow that enforcement statute when they sought a court order that would have forced Maricopa County to comply with the subpoenas. Instead, the legislators relied on an unrelated statute in hopes Warner would issue a writ of mandamus used to compel county officials under threat of contempt to perform “an act which the law specially imposes as a duty resulting from an office, trust or station.”
But that is where Fann and Farnsworth made their mistake, according to Warner.
“Although Respondents are public officials, they are in this context the subjects of a subpoena and their duty to comply arises from the subpoena, not from their offices,” the judge ruled. “There is no basis in Arizona statute for treating the subject of a subpoena differently because they are a public official, and no basis for using mandamus in lieu of the procedures for enforcing subpoenas that apply to all persons served with a subpoena.
Warner also rejected arguments from the senators that the Arizona Constitution allows individual legislators or legislative leaders to seek judicial enforcement of legislative subpoenas.
The judge dismissed the mandamus action, but his ruling does not void the underlying subpoenas, which Maricopa County officials are challenging in a separate legal case.
And not to be a Scrooge, Warner gave Fann and Farnsworth a pre-holiday token by granting them leave to file an amended complaint which would cite a different subpoena statute, ARS 12-2212.
That statute involves the right of a “public officer” to seek court enforcement of a subpoena that the public officer is authorized to issue. Warner noted in his ruling that Fann and Farnsworth may have “a plausible argument” under that statute, although it could not be considered as part of a special action mandamus filing.
Warner agreed to give the senators until Feb. 1 to file an amended complaint under ARS 12-2212. He would then hear arguments from Maricopa County officials and other interested parties as to whether it is a viable remedy for the legislature.
In the meantime, the legal challenge filed by Maricopa County’s supervisors against what they call “unlawful subpoenas” has been assigned to Judge Timothy Thomason. No hearings have been scheduled yet in that case, and it is possible Thomason and Warner could issue conflicting rulings on the validity and enforcement of the subpoenas.