Appeals Court tosses Santa Cruz County’s appeal in Brakey election records case

The Arizona Court of Appeals in
Tucson upheld a lower court’s ruling to toss out a lawsuit that Santa
Cruz County filed several years ago against a man who requested election
records.

In forming a
decision, a three-judge appeals panel considered two main items: the
county’s appeal after a Pima County Superior Court judge upheld the
dismissal of the county’s lawsuit, and a cross-appeal in which John
Brakey and his nonprofit organization Audit USA requested that the
county cover additional legal fees spent on the case.

The
court’s opinion, authored by Judge Peter Eckerstrom, states that the
county did not bring forward actual controversy or a ripe claim for the
case against Brakey and Audit USA. Under Arizona law, a
case without those elements is deemed non-justiciable, meaning the
matter cannot be decided by a court.

“You have a possibility or a
conceivable controversy in the future. And isn’t that just the classic
nature of things that courts don’t get involved in?” Eckerstrom said,
referring to the county’s suit.

Brakey,
cofounder of the elections watchdog organization Audit USA, filed a
public records request for cast vote records in 2022. At the time,
county officials denied the request and filed a legal complaint against
Brakey, seemingly in hopes of preventing him from challenging their
denial of records.

The
county’s lawsuit, filed in Pima County Superior Court, sought the
judge’s ruling on whether officials were obligated to hand over the
requested records. According to court documents, county officials filed
the complaint because they faced a “recurring dilemma” to either produce
the records and risk violating an Arizona statute, or deny the records
and potentially violate Arizona’s public records laws.

The
panel’s written opinion published this week states that the county’s
reasoning overlooked the actual posture of the case: Since the county
denied Brakey’s request, it did not face sanctions under elections
statute. The county also does not face legal risk under public records
law unless Audit USA were to legally challenge the denial, which it has
not done.

“A public
body’s preemptive lawsuit – triggered by nothing more than a person or
group seeking public records – also arguably runs afoul of Arizona’s
public records laws,” the panel noted in its opinion.

The Board of Supervisors and County Manager Jesus Valdez did not respond to the NI’s request for comment.

Two separate appeals

Santa
Cruz County had initially agreed to provide Audit USA with the
requested records, court documents show. But officials later identified
the documents as “protected from disclosure,” and opted to not supply
them.

Audit USA did
not sue the county for the records, the appeals court noted. Still the
county filed a lawsuit seeking declaratory judgement, or a court’s
ruling on the county’s rights and duties in relation to the matter.

Audit
USA successfully filed for the case to be dismissed, noting it was not
justiciable. The county filed another motion asking the superior court
to reconsider the case, documents show. At one point, Audit USA
submitted a second request with the county for the election records,
which the county used to supplement its court arguments.

But the court denied the county’s motion and affirmed the decision to dismiss the case.

The
county continued its push and filed an appeal in early 2023, records
show. At the time, an appeals panel vacated the dismissal and sent the
case back to Pima County Superior Court for reconsideration, according
to court documents. In September 2024, a superior court judge once again
ruled that the case was not justiciable, and granted Audit USA’s
request for the county to reimburse the organization for $20,000,
reflecting the partial cost incurred in legal fees.

The
county filed a second appeal over that decision – ultimately bringing
the case before Eckerstrom, Judge Sean Brearcliffe and Judge Christopher
Staring.

Arguments

The appeals panel heard oral arguments on Oct. 14.

Justin
Pierce, an attorney representing Santa Cruz County, insisted that the
case did, in fact, pose controversy – a requirement needed for a court
to consider declaratory judgement.

“And
the reason there’s a controversy is we would be saying that in every
case, the county has to wait to be sued,” Pierce said. “(Audit USA’s)
entire focus, on their public website, is ‘We bring Public Records Act
lawsuits against officials and counties who do not provide these exact
records,’ so we don’t have to speculate on that.”

Eckerstrom
questioned Pierce’s argument: “You’re saying that we should rule, as a
matter of law, that anytime someone files public records requests for
you, that in your bag of options… there’s a third option: file a lawsuit
against them or a (declaratory) action in a superior court?”

He
noted that, at a minimum, that approach would impose attorney fees on
people seeking public records. It would also counter public records law
and discourage people from seeking public records.

Bill
Risner, an attorney representing Audit USA, countered Pierce’s notion
that the nonprofit is a litigious entity. He added that the organization
never intended to sue Santa Cruz County over the election records.

“There’s
no reason for filing the case, yet they’ve appealed and they’ve
appealed and they keep going and raising huge expenses,” Risner said.
“So this has been an incredible churning of time and waste of energy and
waste of money.”