Arizona Attorney General Advises Judge To Recognize Legislature’s Power To Issue Subpoenas

Arizona capitol

A Maricopa County judge has received an amicus curiae brief from Attorney General Mark Brnovich with an analysis of the legal dispute between two state senators and the Maricopa County Board of Supervisors (BOS) over legislative subpoenas issued in connection to the 2020 General Election.

“Transparency and accountability are the hallmarks of good public administration, especially during times like this,” Brnovich told Arizona Daily Independent after filing the brief. “All Arizonans deserve to have confidence in the integrity of our elections.”

According to the brief, Judge Timothy Thomason’s analysis of the merits of dueling lawsuits about the subpoenas “should recognize the long-established, necessary, and broad power of the Legislature to issue subpoenas in furtherance of legislative functions,” regardless of the ultimate outcome.

Senate President Karen Fann and Senate Judiciary Committee Chairman Eddie Farnsworth issued two subpoenas on Dec. 15, demanding the Maricopa County board turn-over records, documents, and software related to the election. The subpoenas also demand the county’s voter registration records, ballots, and equipment, including tabulator machines, computers, and memory cards.

Read more by Terri Jo Neff >>

The deadline for the county’s compliance was Dec. 18. But instead of providing any of the items, the BOS hired private counsel to assist the Maricopa County Attorney’s Office in challenging the subpoenas through a lawsuit which calls for the “unlawful” subpoenas to be quashed.

Fann and Farnworth have countersued and on Tuesday asked Thomason for expeditated consideration of their request for a court order requiring county officials to immediately comply with the subpoenas. The judge has scheduled a status conference for Jan. 4.

And that is where Brnovich’s amicus brief comes in, with its conclusion that the Arizona Legislature has broad, not narrow, authority to issue and enforce legislative subpoenas.

“Among the grounds the County asserts are that the subpoenas are legally invalid and violate the separation of powers,” the brief states. “The purpose of this amicus brief is to provide additional legal background and the perspective of the Attorney General to the Court on the proper legal framework for analyzing those assertions.”

In addition, the brief concludes that while the Legislature’s power to issue and enforce subpoenas “is not unlimited,” the Court should take a deferential approach when considering the validity of the subpoena.

“One limitation is found in the allowable scope of legislative subpoenas—the information sought through legislative subpoena must be for legislative purposes,” the brief states. “But the U.S. Supreme Court has taken a broad view of legislative purpose. If there is a conceivable, legitimate legislative purpose for the subpoena, courts should presume that is the purpose for the subpoena when determining its validity.”

In addition, the amicus brief contends that the legislature has exercised its constitutional authority by enacting election laws, and thus has the right to ensure whether government officials are faithfully administering those laws.

“The Arizona Legislature has broad power to issue subpoenas regarding election administration in connection with the 2020 general election, both to review how the County discharged its duties during that election and to craft future election legislation” it states. “Any argument by the County otherwise should fail.”

One argument put forth by Maricopa County officials involves the separation of powers, an argument the Attorney General’s brief rejects.

“Separation of powers prevents one branch of government from usurping powers of another coordinate branch of government or delegating power to another coordinate branch,” it states. “Separation of powers does not, however, insulate a subordinate division of government (like the County), which derives its powers from the Legislature, from oversight in the administration of something as fundamental to American democracy as elections.”

Upon filing the brief on Wednesday, Brnovich noted it “details why the Arizona Legislature has constitutional authority to investigate the County’s administration of elections.” However, the brief does not address whether the two disputed subpoenas contain deficient language which make them unlawful or invalid regardless of the authority of the legislature to issue subpoenas.