Cochise County Supervisors Peggy Judd and Tom Crosby’s attempts to see two felony charges for allegedly delaying the canvass of the 2022 election dismissed or returned to the grand jury failed, a judge ruled Tuesday, pushing the case closer to trial.
Maricopa County Superior Court judge Geoffrey Fish rejected claims of legislative immunity, and ruled the Cochise County Board of Supervisors, “or any other county board of supervisors, does not have the authority to delay the canvass with the single exception being where returns from a polling place are found to be missing, a situation not found here.”
“Canvassing the vote is not a discretionary function,” Fish wrote.
Crosby and Judd both face two class five felonies for conspiracy and interference with an election officer after the two delayed certifying the 2022 election until ordered by the court.
Crosby moved to dismiss the charges as a matter of law after arguing the decision to delay the election canvass vote was covered by legislative immunity. But Fish found the canvass is not a legislative act, but a nondiscretionary administrative duty required by law.
He concluded Crosby’s reasoning for delay, an attempt to set up a hearing on the legitimacy of tabulation machines with the Secretary of State and his subject matter experts, to be “secondary and not relevant to the requirement the vote be canvassed and transmitted.”
Fish further addressed Crosby’s additional challenges to the definition of “any election” in the criminal statute, a claim that the charging statute should be void for vagueness and an alleged lack of interference with the statewide canvass.
He concluded prior case law supported a definition of “election” to include canvassing of the votes and found the statute gives election officials notice of what is criminal conduct. And he added that in this case, the supervisors had “specific notice” and were “warned by multiple parties, including the county attorney, the local elections officials and state election officials that a failure to canvass the votes by the deadline would not only be a violation of their responsibilities but would violate the law.”
Whether the supervisors’ actions materially interfered with the canvass is to be left up to the jury, Fish ruled.
In Judd’s motion to dismiss, her attorney, Kurt Altman, contended the grand jury lacked the statutory authority to investigate and charge the Cochise County supervisors, warranting the dismissal of the two felony charges.
But the Attorney General’s Office claimed the case fit squarely under a provision in statute allowing the grand jury to take up “any form of intentional, knowing or corrupt misconduct involving any person compensated by public funds.”
Fish found there was “no question both defendants are compensated by public funds'' and the allegations from the state that Crosby and Judd “knowingly acted to interfere with an election officer in the discharge of duties and knowingly conspired to do so could constitute ‘misconduct.’”
The supervisors motions to remand the proceedings to the grand jury failed, too. Crosby claimed the state failed to provide the grand jury with the full and applicable law, advanced improper evidence that should have been protected by legislative privilege and claimed Cochise County Attorney Brian McIntyre presented privileged and misleading testimony.
Fish found attorneys for the state read the proper statutes to the grand jury. And he rejected the claim that certain evidence should have been protected by legislative privilege as the canvass is a “ministerial duty” and because Crosby “voluntarily presented his own evidence to support his testimony, which included attorney letters, Cochise County meeting minutes and other communications.”
Fish further found McIntyre’s testimony was not misleading and did not rely on information guarded by attorney/client privilege given the statements McIntyre referenced were made during open board meetings and work sessions.
Judd, meanwhile, asked for remand based on an alleged failure to properly instruct the grand jury on Fifth Amendment Rights.
The state advised Judd that she had a “constitutional right to refuse to answer any question if a truthful answer to the question would tend to incriminate you.”
Altman claimed the advisory was improper as “the State left the impression that if Defendant would answer questions truthfully, they would tend to incriminate her.”
But Fish noted Judd invoked the Fifth on “mundane questions,” indicating a “blanket invocation, as was her right, and therefore the grand jurors were not left with certain questions answered while others were not.”
He rejected her legislative privilege claim on the same grounds and rejected a similar claim of misleading testimony by McIntyre.
Crosby’s attorney, Dennis Wilenchik, said he was going to attempt to file a special action with the Arizona Supreme Court to challenge the superior court’s ruling in hopes of avoiding “the need for a costly and wasteful trial in the interim.”
“ If we have to try this case I am still confident a jury would acquit Mr. Crosby, and Ms. Judd as well, because there is no conspiracy to commit any crime, there was no intent to commit any crime,” Wilenchik said in a written statement, “ This is nothing but another political witch hunt of our current Attorney General trying to settle political scores, and wasting the taxpayer dollars doing so using the court system and its processes, and we will not give up until justice is done and our client acquitted.”
In a written statement, Mayes said, “ This is a serious case, and the charges have merit. Today's ruling by the court supports that. While the defendants are innocent until proven guilty, as are all defendants in our criminal justice system, my office is prepared to move forward with this case and pursue justice for the people of Arizona.”
Altman did not respond to a request for comment.
The case now heads to trial, with a complex case management conference set for June 26.
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