Wednesday Writs: The Mess is Growing, So Here Are Links Edition
I’m currently trying to write up the convoluted nonsense of currently-under-indictment Texas AG Ken Paxton’s “Lawsuit”, the latest attempt to try and judicially overturn the 2020 presidential election. It’s turned into it’s own beast, so I’ll be posting that separately. In the meantime, please enjoy Wednesday Writs: Links Edition (thanks Andy Donaldson for the assist.)
With all the big headlines out of Texas and Pennsylvania, you may have missed the news that Arizona wasn’t going any better in court for Team Trump:
The Arizona Supreme Court on Tuesday affirmed President-elect Joe Biden’s victory in Arizona, upholding a lower court’s finding that there was no misconduct, fraud or illegal voting in the general election. The ruling came hours before the so-called “safe harbor” cutoff, a federal deadline by which states must resolve election-related disputes in state courts to guarantee Congress will count their electors’ votes.
Arizona Republican Party Chair Kelli Ward had initially filed the challenge in Maricopa County Superior Court, seeking to have a judge void Biden’s 10,457-vote win in Arizona. In her claim, she questioned the signature verification process used by Maricopa County to authenticate mail-in ballots, as well as the duplication process election officials used to count ballots that tabulation machines couldn’t read.
Ward brought the election contest under a state law that allows voters to dispute certified results if they suspect misconduct, illegal votes or an inaccurate count. But, over a day and a half of testimony and oral arguments, her team failed to prove anything beyond a handful of garden variety mistakes, Superior Court Judge Randall Warner said.
In an order issued Tuesday after Ward appealed to the Arizona Supreme Court, Chief Justice Robert Brutinel agreed. The court agreed Ward’s challenge had failed to “present any evidence of ‘misconduct,’ ‘illegal votes’ or that the Biden Electors ‘did not in fact receive the highest number of votes for office,'” he wrote — “let alone establish any degree of fraud or a sufficient error rate that would undermine the certainty of the election results.”
“Elections will not be held invalid for mere irregularities unless it can be shown that the result has been affected by such irregularity,” he wrote. “The validity of an election is not voided by honest mistakes or omissions unless they affect the result, or at least render it uncertain.
Noting the decision was unanimous, he concluded: “It is ordered affirming the trial court decision and confirming the election of the Biden Electors.” Those 11 electors are scheduled to cast their presidential votes Monday.
For a recap on Kelli Ward, and how my friend Andrew Donaldson warned this would happen when she was put in charge of the Arizona GOP, read this piece.
Meanwhile, SCOTUS was busy with other business, like referring the California Covid-19 restrictions on houses of worships back to lower court for review:
Emphasizing that COVID-19 cases in California are “spiking” and that indoor activities are especially risky for the spread of the virus, the state concedes that the church has “a powerful interest in worshipping in the place and manner of” its choosing. But it stresses that this case is different from the New York challenges because California “applies the same restrictions to indoor worship as to comparable secular activities involving large groups gathering in close proximity indoors for prolonged periods.” For instance, in its most restrictive zones, the state prohibits indoor gatherings at movie theaters, restaurants, museums and other large spaces, as well as worship services. The state suggested that before the Supreme Court rules on the church’s request, it should allow the lower court to “promptly evaluate” the church’s arguments in light of last week’s decision in the New York case and “the current factual and legal circumstances in California.”
The justices did exactly that on Thursday morning, with a brief two-sentence order. There were no public dissents from the ruling. The justices have two other pending requests for relief from COVID-related restrictions, involving houses of worship in New Jersey and a Christian school in Kentucky.
Meanwhile, over in the Fourth Circuit, the nitty gritty of how immigration cases are being handled, specifically the duty immigration judges have to develop a record for pro se asylum applicants, was before a three judge panel:
It’s an issue other federal appeals courts have explored, and now the Fourth Circuit has a chance to chime in.
“The immigration judge has a duty to develop the record. In practical terms, it means when a pro se applicant testifies about the nature or fear of their persecution, the immigration judge needs to come in and ask questions – who are you afraid of? Who is going to hurt you?” argued attorney Susan Baker Manning with the Washington-based firm Morgan Lewis. “This is deposition 101.”
U.S. Circuit Judge Diana Gribbon Motz, a Bill Clinton appointee, said she understood the argument but wasn’t exactly sure what the three-judge panel could order the lower court to do if they sided with asylum seeker Miguel Arevalo-Quintero and remanded the case.
“Do we give the pro se person more benefit than if they have a lawyer?” she asked, opining that she’d seen more bad immigration lawyers than qualified ones during her decades as a judge.
She added that giving pro se filers an added benefit “seems, on the whole, bad for applicants.”
This question of equity between asylum seekers with or without representation was a sticking point throughout the hearing.
Writing that his “pants are charred” from the volume of his lies, the Ohio Supreme Court disbarred a Columbus lawyer Wednesday for practicing law while suspended for having a sexual affair with a court-appointed client.
Jason Sarver’s law license was revoked by the court in a unanimous ruling, with Justice Patrick Fischer writing that Sarver manipulated vulnerable clients and violated their trust “to pursue his own objectives.”
Sarver was convicted of misdemeanor charges and received a suspended 180-day jail sentence in Hocking County in 2016 related to engaging in sex with a woman he was appointed to represent in court. He originally was charged with sexual battery, but maintained the affair was consensual.
The Ohio Supreme Court suspended him for two years, with 18 months stayed, on Nov. 28, 2018, for violating lawyer conduct rules by engaging in a sexual affair with a client.
The Board of Professional Conduct subsequently found that Sarver improperly practiced law while suspended by handling a wrongful-death traffic crash case in Cuyahoga County and failing to notify parties he could not practice law.
You know what you were thinking to yourself. “Self, what I really want is some hot Foreign Sovereign Immunities Act and stolen Nazi art action…”
In the Supreme Court Monday, the German government, backed by the Trump administration, argued that foreign governments and their agencies are shielded from lawsuits under the Foreign Sovereign Immunities Act.
But Leiber’s lawyer, Nicholas O’Donnell, contended that this suit and others like it are specific exceptions under the law because, as he put it, “The Nazi government set out explicitly to destroy the German Jewish people by taking their property. And Congress has specifically identified the Nazis’ looting of art from the Jewish people as genocidal.” This is not a human rights case, he maintained, but a property rights case.
But justices both liberal and conservative, justices who are Jewish and those who are not, seemed doubtful.
Wouldn’t your reading amount to “a radical departure” in the way the law is interpreted, asked Justice Clarence Thomas.
Justice Stephen Breyer said that O’Donnell’s argument seemed to have “no limit.”
“Terrible things happen in this world,” he noted, adding that the list of terribles “goes on and on.” And if we can bring court cases in the U.S. for those things, “can these other countries do the same and accuse us?” he said, citing the “Japanese internment, which involved 30,000 people in World War II.” Breyer said that’s why, in his view, commissions set up to deal with these kinds of questions may work better.
Self representation, always a classic:
Former Portsmouth city councilman Michael Mearan is now submitting filings for himself in the case accusing him of sex trafficking, court records say.
Mearan, who was indicted in October, faces 18 counts spanning human trafficking, racketeering and compelling and promoting prostitution. The charges surround alleged criminal activity that occurred between 2003 and 2018.
As his own attorney, Mearan would be in a position to cross-examine his alleged victims.
“It’s been said in the past that a lawyer who represents himself has a fool for a client,” Ohio Attorney General Dave Yost told The Enquirer Wednesday. “A trial, in this case, will afford a real-world test of that old saying.”
Mearan was the focus of an Enquirer investigative report in March 2019 into sex trafficking in the small city 100 miles east of Cincinnati along the Ohio River. He has consistently denied the allegations.
Profiles in Elite Strike Force Lawyering: Jenna Ellis
Jenna Ellis broke into the legal profession in 2012 as a deputy district attorney in Weld County, Colorado, a largely rural area that would soon make headlines for a failed attempt to secede from the rest of the state because some residents resented the growing dominance of more liberal communities to the south, like Denver. Ellis prosecuted crimes like theft and assault, felonies of a different magnitude from the claims of sweeping fraud and criminal conspiracy she makes today as a top lawyer to President Donald Trump.
It was not long before she parlayed her law degree and experience as a prosecutor into jobs that thrust her beyond her corner of the state. She took a position with James Dobson, the evangelical heavyweight, joined the faculty at Colorado Christian University and started appearing on Denver radio as a legal commentator.
By late 2018, regular viewers of cable news would come to know Ellis as a “constitutional law attorney” — her preferred title — who aggressively came to Trump’s defense as he faced investigation and impeachment.
But a review of her professional history, as well as interviews with more than a half-dozen lawyers who have worked with her, show that Ellis, 36, is not the seasoned constitutional law expert she plays on TV…