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Kavanagh wants AG to defend all laws, after Brnovich wouldn’t defend his

By: - January 18, 2023 4:13 pm

Sen. John Kavanagh, R-Fountain Hills. Photo by Gage Skidmore (modified) | Flickr/CC BY-SA 2.0

After the attorney general last year refused to defend a new law making it a crime to take video of police officers in some situations, the law’s author is back with a proposal that would require the state’s top attorney to defend every law.

State Sen. John Kavanagh, R-Fountain Hills, said it was frustrating that then-Attorney General Mark Brnovich, a fellow Republican, decided not to defend the law he sponsored in 2022 that banned video recording of police officers within eight feet of where “law enforcement activity” is taking place. 

When Brnovich and county prosecutors opted not to defend the law against a federal lawsuit, which legislative attorneys warned last year was likely unconstitutional because the restrictions flew in the face of previous court rulings, a federal judge granted a preliminary injunction and blocked the law from ever going into effect.

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Courts have long ruled that the First Amendment protects not only the publication of videos, but also the act of recording them — particularly videos of public officers in public places. 

The Arizona Mirror was part of a coalition of news organizations that filed a federal lawsuit challenging the constitutionality of the law. 

Kavanagh said it wasn’t right that the attorney general can pick and choose which laws to defend.

“Our lawyer should be our lawyer,” he told the Senate Government Committee on Wednesday.

In response, Kavanagh is pushing Senate Bill 1021, which requires the attorney general to “defend all laws…against all legal challenges.” 

Sen. Priya Sundareshan, D-Tucson, wondered whether the requirement would infringe on the separation of powers, but Kavanagh said he wasn’t concerned with that because the AG is supposed to defend the state.

“Their role is to defend the actions of the legislature,” he said.

Paul Weich, a Valley attorney and part-time journalist who covers politics and legal issues in Arizona, told the Arizona Mirror that Kavanagh’s bill would be bad public policy.

“It’s never a good idea to force an attorney to make an argument for you that they don’t want to make,” he said, adding that doing so could put attorneys in an ethical quandary if they’re required to defend clearly unconstitutional or illegal laws. 

Kavanagh conceded that some laws are simply indefensible, and said that’s why his measure includes a way for the AG to avoid defending a law: He or she can seek permission from the Judiciary committees in both the state Senate and House of Representatives to not defend a statute. If two-thirds majorities of both committees agree, then the AG can stand down.

But the presumption, Kavanagh said, needs to be that the attorney general will defend every law.

SB1021 passed the Government Committee on a 5-2 party-line vote with Republican support and Democratic opposition. It next heads to the floor for consideration by the full Senate.

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Jim Small
Jim Small

Jim Small is a native Arizonan and has covered state government, policy and politics since 2004, with a focus on investigative and in-depth policy reporting, first as a reporter for the Arizona Capitol Times, then as editor of the paper and its prestigious sister publications, the Yellow Sheet Report and Arizona Legislative Report. He has also served as the editor and executive director of the Arizona Center for Investigative Reporting. News organizations and journalists under his leadership have won numerous state, regional and national awards for accountability journalism and probing investigations into state government operations.

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