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Sun, Oct. 13

Arizona AG quietly drops lawsuit against backers of Prop 127

Attorney General Mark Brnovich. (Howard Fischer, Capitol Media Services, file photo)

Attorney General Mark Brnovich. (Howard Fischer, Capitol Media Services, file photo)

PHOENIX — Attorney General Mark Brnovich is quietly dropping the defamation lawsuit he filed last fall against backers of the Proposition 127 campaign and the California billionaire who financed it.

Dennis Wilenchik, who represents Brnovich, told Capitol Media Services he still believes that his client could win his claim against members of the Clean Energy for a Healthy Arizona committee and Tom Steyer over the content of TV commercials supporting the ballot measure. Those ads accused the attorney general of being “corrupt” and that he was helping to “rig” the election.

But Wilenchik conceded that even if he won, the victory would be hollow, at least financially.

He pointed out that commercials were running — and the lawsuit was filed — while Brnovich was seeking another four-year term. As it turned out, Brnovich won that race and got to keep his $90,000-a-year salary.

Voters also defeated Proposition 127, the one that the ads accused Brnovich of using his position to defeat because he tweaked the explanation of the measure that voters saw on the ballot. The initiative would have mandated that most Arizona utilities generate at least half their energy from renewable sources, not including nuclear power, by 2030.

“So what is the point of this suit in terms of damages?” Wilenchik said.

“He proved his point,” Wilenchik said. “And his point was that the public went with him on both things.”

So Wilenchik said he advised Brnovich that the lawsuit should be “allowed to die a natural death.”

“And we move on,” he said.

Central to the lawsuit is that the explanations of measures that appear on the ballot, while crafted by the secretary of state, are subject to review and alternations by the attorney general.

In the case of Prop 127 it would have overridden existing Arizona Corporation Commission policy, which sets a 15 percent renewable energy goal by 2025. That policy can be amended based on changing factors, including cost; the initiative had no such escape clause.

Based on that, Brnovich added verbiage to the ballot language to say that the 50 percent mandate, if approved, would come “irrespective of cost to consumers.” That is precisely the argument Arizona Public Service had been making against the measure, with the utility within days then using the explanation in its commercials.

The TV ads financed by the pro-127 organization accused Brnovich of doing the company’s bidding, even superimposing APS logos on his suit jacket similar to the outfit of a NASCAR driver.

And the ad cited the more than $400,000 that Pinnacle West Capital Corp., parent company of APS, gave to the Republican Attorneys General Association, a group that in turn spent more than $1.2 million to win Brnovich another term.

“He rigged official ballot language to help APS block affordable solar,” the commercial said, urging voters to “say no to corruption and higher bills” and telling people to vote against Brnovich and in favor of the initiative.

Wilenchik, in filing suit, called the wording of the commercials “patently false,” with words like “rig” implying that someone illegally and wrongfully interfered with an election.

“Nothing of the sort occurred here,” Wilenchik said. And he said Brnovich did not “manipulate” the ballot language “but rather exercised his duty as Arizona attorney general to assure that the descriptions of ballot measures are fair and accurate and provide necessary and appropriate information to the voting public.”

But it didn’t help Brnovich’s claim of neutrality that Eric Spencer, then the state elections director and a Republican like Brnovich, raised questions about the added language.

In an email to the Attorney General’s Office about the verbiage, Spencer said the new language “is certainly eyebrow-raising because it cites information exogenous to the ballot measure itself.” That term means that the words in the explanation are not taken from the ballot language itself but from outside factors.

“But I’m sure you’ve calculated the legal and political risks of adding that,” Spencer added.

While Wilenchik said he believes the claim had merit, court records show that he never even served a copy of the lawsuit on Steyer or the committee members.

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