Judge tosses Santa Cruz County suit vs. Tucson man who requested election records

When a Tucson man and his organization filed a public records request with Santa Cruz County seeking copies of its cast vote records for the 2022 primary election, the county denied the request.

But they didn’t stop there. Santa Cruz County then sued the man and his group in hopes of preventing them from challenging the decision.

The county’s bold and potentially dangerous precedent setting move was stopped in its tracks on Tuesday, when a judge in Pima County threw out the suit, saying John Brakey and his organization AUDIT USA have the right to oppose the records denial if they choose.

While he insisted he saw no ill intent behind the county’s suit, Judge Casey McGinley of Pima County Superior Court still noted the potentially problematic concept underlying the suit.

“What’s to stop a country from deciding that they’re going to sue a private entity, whether it’s a person or group of people, for fear that one day that person might seek a public records request that they don’t want to provide?” he asked the county’s lawyers, according to an audio recording of the proceedings provided by Brakey.

“I think we can all imagine very nefarious scenarios that could result if a county or other government official could file a lawsuit seeking declaratory relief in response to a public records requests,” McGinley said at another point.

The judge noted that there’s a clear procedure for public records requests: A member of the public makes a request, the county decides how to respond, and if the requesting party doesn’t like the response, they can file a request for a special action with the courts in that county.

So far, however, Brakey and AUDIT USA have not sought a special action at Santa Cruz County Superior Court, and therefore there was no legal dispute for the judge to decide, McGinley said.

Brakey’s lawyer, Bill Risner, said his client did not to intend to request a special action in the case, since AUDIT USA has limited resources and is focusing its efforts on getting an appeals court to overturn a decision in a records case it lost in Maricopa County.

McGinley’s ruling on Tuesday did not address the issue of whether Santa Cruz County was correct in denying Brakey’s request for the cast vote records, or CRVs. Still, the county’s lawyer, Christina Estes-Werther, acknowledged that other counties had deemed their CRVs to be public record.

“The county, Santa Cruz, believes they have a target on their back because they (AUDIT USA) are going to see that this is maybe one of the few counties that isn’t disclosing it, and they need this for their organization’s mission,” she said.

As for the question of precedent, Estes-Werther insisted that the county’s lawsuit was a specific response to this particular organization, which she characterized as litigious, and not a threat to other members of the public.

Still, as the judge said, “the ball is squarely in Mr. Brakey and AUDIT USA’s court whether or not they wish to file a special action petition,” and he dismissed the lawsuit in which the county sought to undermine that choice of action.

Santa Cruz County’s suit was filed in Pima County because that’s where Brakey and AUDIT USA are based. On Wednesday, the day after McGinley’s ruling, the county filed a motion at Pima County Superior Court asking him to reconsider.

If Santa Cruz County has reason to fear a challenge from Brakey and his organization, it might be because they previously lost a court case to him and then-named AUDIT AZ in 2014.

In that case, AUDIT AZ filed a special action request in Santa Cruz County Superior Court to compel the county to turn over public documents the group alleged were illegally withheld. After a three-day trial, a judge ruled that the county did not take AUDIT AZ’s records request seriously and ordered them to comply.

When the county stalled, Judge Pro-Tem Kimberly Corsaro ordered Santa Cruz County to pay AUDIT AZ $30,000 in attorney’s fees, $1,744 in costs and $6,000 in expert witness fees.