⚖️ Unfinished Business: AUDIT USA Demands Arizona Court Actually Read Its Own Statutes
The Appeals Court said Santa Cruz County had no right to sue—so why are they refusing mandatory attorney fees? Motion for Reconsideration explains why "shall" means "shall."
😽 Keepin’ It Simple Summary for Younger Readers
👧🏾✊🏾👦🏾
🧑🏫📚 Imagine your teacher promised to give you your test back on Friday. But on Friday, instead of handing you the test, your teacher’s lawyer 👩⚖️ sent you a lawsuit 🧾 asking a judge ⚖️ whether they should give you the test.
That’s basically what happened here—except it took three years ⏳ and cost a lot of money 💸 that the school could’ve used for books 📖 and computers 💻 instead.
Now the person who had to hire a lawyer 🧑💼 to defend themselves against that silly lawsuit 🙄 is asking the judge ⚖️ to make sure the teacher 🧑🏫 has to pay them back 💰 for all the lawyer fees. The lawyer should’ve gotten paid a long time ago 🕰️, but the judge made a mistake ❌ and didn’t make the teacher pay.
This motion is saying: “Judge, you made a mistake. The law says you have to make the teacher pay these fees—not that you can if you feel like it.” 🗣️ It’s like the difference between your parents saying “You must clean your room 🧹” and “You can clean your room if you want to 😅.”
The Reckoning: AUDIT USA Demands the Court Get Its Math Right on Attorney Fees
🗝️ Key Takeaways
📊 Mandatory vs. Discretionary: The Appeals Court misquoted A.R.S. § 12-349, saying courts “may” award fees when the statute says they “shall”—a critical legal error that cost AUDIT USA $57,000+
🔬 The Objective Standard: Arizona Republican Party v. Richer (2024) establishes that good faith is measured by what a reasonable attorney would do, not what the government believed it was doing
📋 Three Years of Baseless Litigation: County had all the power; AUDIT USA had none. A reasonable attorney would never maintain a lawsuit in this position
💵 Bill Risner’s Unpaid Labor: Over $51,000 in attorney fees, two years on appeal without payment, all defending a lawsuit AUDIT USA never wanted to file
🎯 Simple Alternatives Ignored: County could have asked the Attorney General, consulted the Secretary of State, or just kept its promise—instead chose to sue
📚 Factual Errors in the Opinion: Court cited Maricopa case about CVRs; that case actually involved ballot images, not CVRs—and Maricopa provided CVRs to AUDIT USA
🚨 Retaliation, Not Procedure: Calling this a procedural error misses the point—it’s the government weaponizing the courts against transparency
Órale, esto sí que está interesante—the saga continues. Two weeks after the Arizona Court of Appeals handed AUDIT USA a victory, saying the county had no legal right to sue them in the first place, the nonprofit has filed a Motion for Reconsideration asking the judges to actually read the law they cited.
Because apparently, telling the truth about government overreach isn’t enough. Sometimes you have to drag a court through its own statutory language, paragraph by paragraph, to make it understand what “mandatory” means.
On November 4, 2025, AUDIT USA filed a motion arguing that the Court of Appeals didn’t just make a small mistake in its October 20 ruling—it made a fundamental one that undermines the entire purpose of Arizona’s anti-frivolous litigation statutes.
The court ruled that Santa Cruz County lacked legal grounds to sue AUDIT USA and John Brakey, but then declined to award the attorney fees and sanctions that Arizona law requires when government agencies drag citizens into baseless litigation.
It’s like saying: “You’re not guilty, so we’re not punishing anyone for prosecuting you.”
That’s not justice. That’s a performance of justice.
The Court Got One Thing Right, One Thing Wrong, and One Thing Backwards
Here’s the setup: The Appeals Court had it right when it ruled that Santa Cruz County’s lawsuit was “non-justiciable”—meaning it should never have been filed in the first place.
County Counsel Justin Pierce admitted there was zero controversy between the parties. The county had written a letter on August 11, 2022, stating with crystal clarity: “The County will transmit the file share link to the records authorized for release on August 18, 2022.”
The parties agreed. Period.
Yet the county still filed a 39-page lawsuit on August 18—the same day they’d promised to deliver the records. They spent approximately 68.9 hours of attorney time (billing at premium rates) preparing that lawsuit, according to Pierce Coleman’s own invoices, starting August 1, 2022—ten days before they even sent the cooperation letter.
That’s called planning a betrayal, compas.
But here’s where the Court of Appeals stumbled: It misquoted Arizona Statute 12-349. The statute says a court “shall assess reasonable attorney fees” when a party brings a case without substantial justification.
“Shall” means mandatory. Non-negotiable. It’s the law.
Yet the court said agencies “may” be ordered to pay fees. That’s wrong. That’s the opposite of what the statute says. And that one-word error cascaded into a decision that denied AUDIT USA over $57,000 in attorney fees that Bill Risner has rightfully earned.
The Objective Standard That Changes Everything
Here’s where Arizona Supreme Court precedent enters the chat—and it’s brutal for Santa Cruz County’s position.
In Arizona Republican Party v. Richer (2024), the state Supreme Court established a critical legal principle: The test for whether a claim is made in “good faith” is objective, not subjective. It doesn’t matter what the county’s lawyers believed they were doing. What matters is whether a reasonable attorney should have known the claim was groundless.
Let’s apply that test to what happened here:
Would a reasonable attorney file a 39-page lawsuit against someone their client had just promised to cooperate with? No.
Would a reasonable attorney spend 68+ hours preparing a lawsuit while simultaneously telling the other party they’d get the records? Absolutely not.
Would a reasonable attorney file a case claiming a “controversy” existed when both parties agreed on the central issue? No, no, and no.
The trial court used a subjective standard, asking whether Santa Cruz County “understood their complaint to be groundless.” They didn’t think it was groundless, so no fees. That’s the wrong approach.
AUDIT USA’s motion argues that under the Richer standard—the objective standard—the county’s lawsuit was clearly baseless from the jump. A reasonable attorney would have recognized this and either (a) not filed the lawsuit, or (b) dismissed it immediately when AUDIT USA made clear they didn’t want to litigate.
Instead, the county pursued this case for three years, burning taxpayer dollars to fight a nonprofit it had agreed to work with.
The Invoice That Proves Everything
Here’s the smoking gun —it’s sitting right there in AUDIT USA’s itemized fees document.
William J. Risner at Risner & Graham, with support from Kenneth K. Graham, logged 144 hours and 43 minutes defending against this unjustified lawsuit at $360/hour—a rate that’s actually lower than the market rate for attorneys with his experience level.
Total fees: $51,994.80
Legal costs: $280.00
Grand total: $54,074.80
But wait, there’s more. The Appeals Court remanded the case to the Superior Court, which denied all fees, even the $20,000 originally awarded by the trial judge in that first ruling.
So Risner worked for two additional years on appeal, essentially without payment, defending a case AUDIT USA never wanted and against a county that broke its own written promise.
Now the Appeals Court needs to look at Arizona statutes 12-349 and 12-350 and understand what they actually require.
What the County Could Have Done (And Didn’t)
One of the most damning aspects of AUDIT USA’s motion is how simple the solution would have been. Instead of suing, Santa Cruz County could have:
Requested an Attorney General opinion
Consulted the Secretary of State
Sought guidance through the Election Procedures Manual (which the county cited in its own complaint!)
Sent the records as promised
That’s it. Any one of those options would have resolved the “dispute” (which didn’t actually exist) legally, ethically, and transparently.
Instead, they chose to weaponize taxpayer money and the court system. And they did it against a nonprofit that, for over 20 years, has been fighting for the kind of election transparency that should unite us across political lines.
Ken Bennett, former Arizona Secretary of State and current AUDIT USA chairperson, put it perfectly in the motion: “Government agencies should not sue citizens simply because they don’t want to ask the Attorney General for guidance.”
The Factual Errors That Stack the Deck
AUDIT USA’s motion also points out that the Appeals Court relied on factually incorrect information to justify its conclusion that Santa Cruz County acted in “good faith.”
The opinion cites AUDIT-USA v. Maricopa County, 254 Ariz. 536 (App. 2023), suggesting that the case dealt with CVRs. But paragraph 3 of that opinion makes clear: Maricopa County provided AUDIT-USA with CVRs. The case concerned only ballot images—an entirely different type of record.
So the court’s justification for calling the county’s actions reasonable was based on a misunderstanding of precedent from another case.
That’s not just sloppy legal reasoning. That’s a factual error corrupting the entire analysis.
The Bigger Picture: Arizona Ethics Rules and Candor to the Court
There’s another layer to this mess that AUDIT USA hasn’t yet addressed in court but has documented exhaustively: The question of whether Pierce Coleman’s attorneys violated Arizona Rules of Professional Conduct (ER 3.3, ER 4.1, and ER 8.4) by submitting false or misleading information to the courts.
According to AUDIT USA, the county submitted an altered version of the August 11, 2022, letter to the court—one that changed the unequivocal promise of records into wishy-washy language about records being “likely” ready sometime in “the week of” August 15th.
That’s not a typo. That’s fraud on the court.
And when Brakey requested billing records under Arizona’s public records law, Santa Cruz County provided documents so heavily redacted they were useless—and claimed it had “lost” three months of billing records right when Pierce Coleman was actively preparing the lawsuit.
¿Cómo que lost? That’s not a coincidence, compa. That’s a cover-up.
According to Arizona’s ethics rules, every attorney is bound by rules that go beyond courtroom tactics. ER 3.3 requires candor toward the tribunal. ER 4.1 requires truthfulness in statements to others. ER 8.4 prohibits misconduct that undermines justice. Pierce Coleman might have some questions to answer from the State Bar.
What AUDIT USA Is Actually Asking For
The motion requests three things:
Mandatory fees under A.R.S. § 12-348: These are required because AUDIT USA prevailed in the lawsuit.
Additional sanctions under A.R.S. § 12-349 and § 12-350: These address the frivolous nature of maintaining a baseless lawsuit for three years.
A remand with instructions to award them: Send it back to Superior Court, but this time with directions to actually apply the law.
If the Appeals Court grants the motion, Santa Cruz County taxpayers will be responsible for approximately $57,000 in additional attorney fees—fees Risner should have received in the first place.
That’s taxpayer money the county can’t spend on schools, roads, or services—all because a board of supervisors decided that suing people for asking questions was a prudent legal strategy.
The Richer Precedent Changes Everything
The Richer case is particularly important because it establishes that courts can’t use subjective assessments of government lawyers’ “intent” to shield them from fees. Justice Lopez made clear: Political motivation is irrelevant. What matters is objective reasonableness.
Applied here: A reasonable attorney would not maintain a lawsuit against someone they’d agreed to cooperate with, especially when the plaintiff—not the defendant—had all the power to grant or deny the records. There’s no legal theory under which this case made sense, regardless of what Santa Cruz County’s lawyers thought they were doing.
The motion quotes Richer extensively:
“A party’s indifference to a claim’s invalidity may constitute the absence of good faith even without an intent to harass or delay or other evidence of affirmative bad faith... Courts should evaluate the absence of good faith under § 12-349(A)(1) objectively—consistent with the Arizona Rule of Civil Procedure 11 standard—which ‘is not based on whether an attorney subjectively pursues claims in good faith, but instead is judged on an objective standard of what a professional, competent attorney would do in similar circumstances.’”
That’s the legal sledgehammer that AUDIT USA is now swinging toward the Appeals Court.
What’s Next? And Why This Matters Beyond Tucson
The Appeals Court now has to decide: Do they follow their own precedent (Richer), apply their own statutes correctly, and do what the law actually requires? Or do they punt again, leaving another nonprofit and another attorney unpaid?
Because if the court allows government agencies to keep harassing transparency advocates without consequence—to drag them through years of litigation, then deny the attorney fees that law requires—they’ve essentially given counties a free license to weaponize litigation.
That’s not democracy. That’s theater.
And while AUDIT USA pursues this Motion for Reconsideration, they’re also laying groundwork for a possible petition to the Arizona Supreme Court. Ken Bennett and John Brakey have been clear: They want the record corrected. They want accountability. They want every county in Arizona to understand that suing citizens for requesting public records is unacceptable.
Brakey put it personally in his reflections on the three-year journey:
“These last three years have tested me more than any case I’ve been involved with in the last 21 years. But when the judges asked those hard questions on Oct. 14, I felt they understood what was at stake—not just for AUDIT and me, but for every citizen who one day might ask their government a hard question.”
The Call to Action: Make Your County Answer for This
Here’s what you need to do right now:
Ask your county: “What are we spending on outside lawyers for litigation? Show me the bills. Show me the records.”
Demand transparency: If your county is using taxpayer dollars to sue citizens for asking questions, that needs to stop immediately.
Support AUDIT USA: Whether through their Substack, their national organization, or by following their work—these folks are fighting for all of us.
Subscribe to Three Sonorans: Because borderlands resistance requires staying informed about what’s happening in our courts, our schools, and our government.
Spread the word: The Arizona Appeals Court needs to know that people are watching. That people care. That democracy isn’t a spectator sport.
Transparencia es patriotismo. And we’re not backing down.
Have a scoop or a story you want us to follow up on? Send us a message below or via email (all messages kept confidential) at ThreeSonorans@gmail.com.
Risner and Brakey have always been involved in these kinds of cases. They’re bulldogs. I didn’t always agree with them but I always believed they have the best interest of voters and the public at heart. Cochise County has been rogue for many years. Good to see them hold the county to account.