On Wednesday, Maricopa Superior Court Judge Daniel Martin ruled the forensic audit for the 2020 election would continue. As reported on Tuesday by UncoverDC, Judge Martin had allowed the audit to continue overnight while the parties prepared to present today their arguments on the issues of privilege and immunity.
Before the hearing began, another law firm, represented by Jordan C. Wolff, replaced attorney Alexander Kolodin. Wolff allowed attorney Kory Langhofer to do all of the talking on Wednesday. Langhofer, a constitutional lawyer, was Counsel for President Trump's 2016 presidential campaign and transition team. He is the lead counsel for the Arizona State Senate's investigation.
April 28, 2021 Hearing/AZ/Judge Martin
At the conclusion of the hearing, Judge Martin encouraged all parties to try to work through their differences and, by 12 PM MT on Thursday, to provide a "statement of position." He indicated that he might want to "get on the phone with both parties to talk things through and find out what remaining options are" if they cannot reach a compromise.
While Martin denied the motion to grant a Temporary Restraining Order (TRO), he ruled that he would not allow the Exhibit D document comprised of Cyber Ninja's policies and procedures to remain under seal under rule 5.4 (c)(2) of the Arizona Rules of Civil Procedure. Four factors apply, said Judge Martin:
- Cyber Ninjas must show that an overriding interest exists that supports filing the document under seal and overcomes the right of public access to it.
- A substantial probability exists that the persons seeking to file the documents under seal, or another person, would be prejudiced if it is not filed under seal.
- The proposed restriction on public access is no greater than necessary to preserve the confidentiality of the information, subject to the overriding interest and,
- No reasonable, less restrictive alternative exists to preserve the confidentiality of the information subject to the overriding interest.
The court disagreed that the policies and procedures employed by Cyber Ninjas were protected by legislative privilege. He quoted the two sources in the Arizona Constitution—Article 4, Part 2, Sections 6 and 7.
Article 4.2 Sections 6 and 7
The first "does not extend to third parties," explained Judge Martin, and "if anything applies, it is the speech and debate clause in section 7." However, the policies and procedures cannot be "characterized as communication." He added that they are also not an "integral part of the legislative, deliberative process," as argued by Cyber Ninjas' counsel, Kory Longhofer.
The issue of waiver, in this case, was also not "reached" by the court because the policies and procedures were not protected by privilege and, thus, precede the issue of waiver. In anticipation of further possible appellate court review, however, he did clarify that the defendants have already waived their right to assert privilege because of previous litigation "involving matters related to the present audit."
Cyber Ninjas failed to show that there was an overriding interest in protecting their Exhibit D document that supersedes the public's need to know. The plaintiff had argued earlier that Arizona law plainly states that the public, especially because taxpayers are paying for the audit, has a right to all information pertaining to elections and now the audit. The attorney for Plaintiff argued that Cyber Ninjas could not "pick and choose what it wants to share" with the public.
With respect to the TRO, Judge Martin concluded that Plaintiff did not present "a strong likelihood of success based on the merits" nor did it prove irreparable injury if the audit continued. Plaintiffs simply did not meet the burden of proof to merit a TRO, in Martin's opinion. In addition, Plaintiff argued that the election procedures were not being followed. However, the judge noted that many of the cited procedures in the Election Procedures Manual (EPM) do not apply to the audit.
As of today's hearing, the judge seemed to give Cyber Ninjas the benefit of the doubt about the confidentiality and security of the procedures until such time that Exhibit D is made public. Essentially, until those procedures are made public, the plaintiff cannot argue that Cyber Ninjas is conducting a malevolent or irresponsible audit.
Martin recognized the possibility of future appellate review, should Cyber Ninjas continue to press for a court seal of its document. If the parties do not reach an agreement or Cyber Ninjas does not appeal, the document will be read into the record at noon on Thursday and will likely become open to the public. The recording of today's full hearing can be heard here.
