Arizona AG Drops Defamation Suit Against Clean Energy Group

By Claire Caulfield
Howard Fischer, Capitol Media Services
Published: Monday, February 4, 2019 - 8:26am
Updated: Monday, February 4, 2019 - 12:32pm
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Attorney General Mark Brnovich is quietly dropping the defamation lawsuit he filed last fall against backers of Proposition 127.

The proposition would have required half of Arizona’s energy to come from renewable sources by 2025. Ads run by the Clean Energy for a Healthy Arizona committee accused the attorney general of being "corrupt'' and that he was helping to "rig'' the election.

The ads came after Brnovich added language to the ballot measure saying that the 50 percent mandate, if approved, would come "irrespective of cost to consumers.'' That’s the same argument Arizona Public Service had been making in its commercials against the ballot measure

"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.

Dennis Wilenchik, who represents Brnovich, wrote in the suit that the wording of the commercials were "patently false,'' with words like "rig'' implying that someone illegally and wrongfully interfered with an election.

"Nothing of the sort occurred here,'' Wilenchik told Capitol Media Services. 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.''

The lawsuit was filed while Brnovich was running for re-election.

In November voters reelected Brnovich and defeated Proposition 127.

"So what is the point of this suit in terms of damages?'' Wilenchik said. "He proved his point, 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.''

While Wilenchik said he believes the claim had merit, court records show that he never even served a copy of the lawsuit to Clean Energy for a Healthy Arizona committee members or Tom Steyer, the group’s financial backer.

But it didn't help Brnovich's claim of neutrality that Eric Spencer, then the state elections director and fellow Republican, 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.

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