Judge dismisses People’s Defense Initiative’s lawsuit “as a practical matter”

Undecided on imposing sanctions against plaintiffs

Pima County Superior Court Judge Brendan J. Griffin dismissed a special-action lawsuit brought by the People’s Defense Initiative, a grassroots organization that successfully placed Proposition 205, colloquially known as the ‘sanctuary city’ initiative, on the 2019 local elections ballot, against city officials who PDI allege participated in electioneering while on city time or using city resources, in violation of state law.

Judge Griffin said the case “hasn’t been structured” the way it would need to be in order for him to even consider the merits of PDI’s complaint, let alone rule against the defendants and grant the plaintiff’s request for declaratory relief.

The judge said a number of procedural requirements, including an evidentiary hearing, had not been met. “I have no admissible evidence [in front of me],” the judge said.

With the Nov. 5 election eight days away Judge Griffin asked Paul Gattone, a civil rights attorney representing PDI pro bono, “There’s nothing you want from me after the elections?” to which Gattone responded, “Yes, your honor.” Griffin responded that even if he could proceed, “How would it even make a difference?”

PDI filed the lawsuit on Oct. 9 after city officials released a ‘Q&A’ memorandum on Oct. 8 which PDI alleges was the act of electioneering that ultimately pushed them to file the lawsuit. PDI claims the memorandum, “is not worded in a neutral or impartial manner and sets forth several falsities intended to influence readers to vote ‘no’ on Proposition 205.”

Also in their complaint, PDI allege other acts of electioneering including Ward 6 City Council Representative Steve Kozachik’s use of his weekly email newsletter to constituents to speak about the proposition in a manner that “omits details that would lend to support of Proposition of 205 and amplifies details that are designed to attract opposition to Proposition 205.”

Ali J. Farhang, counsel for the defendants, City Attorney Mike Rankin, City Manager Mike Ortega, Tucson Police Department Chief of Police Chris Magnus and Kozachik, argued that PDI could’ve brought the lawsuit as far back as Jan. 16 when the city attorney released a legal memorandum warning the mayor and council of dangers Proposition 205 may present to the city, including the loss of state-shared funding and federal grants, which was ultimately made public and garnered media attention.

In a motion for summary judgment filed with the court, Farhang defended both the Oct. 8 and Jan.16 memos arguing they presented impartial legal opinions that did not constitute electioneering.

The arguments each side presented in their filings were all but declared moot by the judge’s dismissal of the case today.

Farhang asserted the plaintiffs had no standing to bring the lawsuit under the specified statute. And only a county attorney or state attorney general could bring this type of action. “The legislature knew what it was doing in not allowing a private cause of action,” Farhang argued.

Farhang pressed for sanctions to be imposed on PDI, arguing, “This was all manipulated so they could get the best PR.

“I don’t think this complaint was ever meant to be ruled upon,” he said.

Farhang said the suit was brought “without substantial justification” and said “groundless and frivolous are equivalent terms” in his argument for the imposition of sanctions.

“To say that this is a publicity stunt is very offensive,“ Gattone countered, “…there’s nothing frivolous about the lawsuit.”

Judge Griffin declined to rule on the issue of sanctions and granted Gattone until Friday to file a brief arguing why sanctions, likely in the form of attorney’s fees, should not be imposed on the plaintiffs.

“I think it’s important to note that [Judge Griffin] didn’t rule that the city didn’t break [the] law, that this was really about technicalities and about time. We were in an expedited process, the defendants didn’t file [their response] for a week and a half which shortened our time,” Zaira Livier, executive director of PDI, said after the hearing.

“They continue to break law, even while this lawsuit has been going on,” Livier continued, “which is why I think a lawsuit like this was so important.”

“If they were serious about this they should’ve moved forward with [the lawsuit] in January after they met with Rankin, or in July after I wrote a newsletter, but not the week the ballots are dropped,” Kozachik said after the hearing.

-030-