The Arizona Libertarian Party and co-plaintiff Warren Severin were represented by attorney David Euchner.
Arizona State University was represented by Carrie Brennan of the Attorney General’s office.
Commission on Presidential Debates was represented by Glen Hallman of the firm of Gallagher & Kennedy, physically in court, as well as Lewis Loss, General Counsel for the CPD by phone.
The judge started by ruling that the service was sufficient for purpose of notice of this hearing. Then, each side was given 30 minutes to argue the issue.
Euchner reserved 15 minutes of his argument for rebuttal, and argued the case based on the violation of Arizona’s Constitution, Art. 9, Sec. 7, which prohibit gifts to private entities. He presented additional arguments based on the 1st Amendment, the 14th Amendment equal protection clause, and case law which was on point.
Carrie Brennan argued the doctrine of laches (that the delay in bringing this suit worked an unfairness against the defendants). She further argued that the funding was provided by private parties, that there is great value to the University in hosting this, and that case law provides that such expenditures are allowed as long as they are not excessive or unreasonable.
Finally, she stated that there is an adequate remedy for any violations of the constitutional gift clause, therefore injunction is not appropriate.
Glen Hallman argued that Libertarians are not a special protected class, thus only a rational basis test applies to the equal protection argument, and using that test, the Libertarians were not discriminated against.
Lewis Loss argued that the CPD is non-partisan, and that Bush & Kerry would not proceed if Badnarik were admitted to the debate.
Euchner then rebutted, arguing that nobody remembers the location of the debates, and thus there is no value to the University in this expenditure, in other words, it is a gift to these two parties. As an example, Euchner argued that the only way debates are even remembered for any time is if they are parodied, such as on Saturday Night Live, and the rerun repeatedly. Further, even with a rational basis test on the equal protection clause, the judge should find for the Libertarians, because the discrimination is so blatant.
At the conclusion of the arguement, the judge issued his ruling from the bench:
1. No restraining order, because of the doctrine of laches, and that there appears to be sufficient public purpose for this debate.
2. The Plaintiffs may continue to pursue damages for any violations of the constitutional provisions.
In summary, we couldn’t stop the debates or get Badnarik in, but we may still be able to hold them accountable through damages.