Thursday, June 20, 2024

BREAKING: AZ House Speaker Toma & Senate Pres. Petersen Waived Leg Privilege, Must Sit For Depos In Transgender Sports Case; But, Minor Girls Do, Too

In a twist this afternoon, a judge issued an Order compelling Arizona House Speaker Ben Toma and Senate President Warren Petersen to sit for depositions in the long-running battle about whether an Arizona law can ban transgender girls from playing school sports on girls teams.

The Speaker and President told the Court that if they were to be deposed, that they would also seek to depose the minor girls who brought the lawsuit against State Superintendent of Public Instruction Tom Horne. The Judge agreed to allow the girls to be deposed, with strict limits on what could be asked.

U.S. District Court Judge Jennifer Zipps issued the 14-page ruling this afternoon, finding that Toma and Petersen had waived their legislative privilege after they moved to intervene in the lawsuit.

The limits she put on Toma/Petersen in deposing the girls are that (1) they "shall not question minor Plaintiffs about the legitimacy or the appropriateness of the Plaintiffs’ medical and/or mental health treatment; and (2) they "shall not ask the minor Plaintiffs any questions regarding sexual abuse, assault, or misconduct."

The Judge indicated that Toma/Petersen "may reference the minor Plaintiffs’ medical records and/or letters from mental health providers only to the extent that it is necessary to confirm or clarify the record."

Zipps has ruled the 2022 Arizona law unconstitutional and kept it from going into effect. Horne has unsuccessfully appealed the injunction. The 9th Circuit currently is considering an appeal from the America First Legal Foundation, which is also seeking to intervene in the case. 

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

BREAKING UPDATE: 9th Circuit Wastes No Time In REJECTING Kari Lake/Mark Finchem Call To "Recall Mandate" In Voting Machines Case

 "BREAKING UPDATE: 9th Circuit Wastes No Time In REJECTING Kari Lake/Mark Finchem Call To "Recall Mandate" In Voting Machines Case"

It only took one week for a panel of 9th Circuit judges REJECTED Kari Lake and Mark Finchem's unusual "Motion to Recall Mandate" in their dismissed 2022 case challenging Arizona's use of electronic machines in elections.

In the Motion, Lake and Finchem brought their same batch of purported new evidence that Maricopa County had done things incorrectly and had misled previous courts. It was similar to the claims that the U.S. Supreme Court had quickly rejected earlier this year.

Maricopa County filed a 27-page response that was joined by the Arizona Secretary of State's Office. They asked to be reimbursed for the Response, but the judges rejected the request.

There are still pending appeals by Lake's and Finchem's attorneys challenging the $122,200 in sanctions levied against them.

 

Correction: The article has been corrected to reflect that the request for sanctions was denied by the judges.

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This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

Wednesday, June 19, 2024

Arizona's Law Briefs, Updates and Links (Week of June 17)

6/20, 12:30pm: "BREAKING UPDATE: 9th Circuit Wastes No Time In REJECTING Kari Lake/Mark Finchem Call To "Recall Mandate" In Voting Machines Case"

In just one week, a panel of 9th Circuit judges REJECTED Kari Lake and Mark Finchem's unusual "Motion to Recall Mandate" in their dismissed 2022 case challenging Arizona's use of electronic machines in elections.

 (Article, Order, Response: tinyurl.com/AZlaw1992

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 BREAKING UPDATE: @GovernorHobbs Files Special Action Petition To Defend Work-Around Agency Director Appointments 

MORE, READ Petition: https://tinyurl.com/AZlaw1984

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UPDATE: AZ Supreme Court's Administrator SOFTENS Proposed Bar Complaint Rule Change, But Could Still Limit Public Information About Election-Related Complaints (NEWS ANALYSIS)

https://tinyurl.com/AZlaw1991

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Arizona prisons settle censorship case brought by Prison Legal News

Christina Avery, Arizona Republic

https://tinyurl.com/yeztb4mu

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UPDATE: Supreme Court's Administrator Softens Proposed Bar Complaint Rule Change, But Could Still Limit Public Information About Election-Related Complaints (NEWS ANALYSIS)

The Arizona Courts' Administrative Director who is asking the Supreme Court Justices to make it more difficult for the public to learn about some elections-related State Bar complaints has softened some of his proposed language. Attorneys who filed some of the complaints are not impressed, saying the end result would be the same.

The Arizona Republic reported last week that the Court's Dave Byers filed the Petition in April, and that attorneys representing the newspaper had objected on the grounds that it would make information harder to come by.

Byers yesterday filed a Reply acknowledging that objection - and others - and he changed some of the language in the amendments.

A number of attorneys filed Bar Complaints accusing attorneys for Donald Trump (and others challenging elections results and processes) of ethical violations by bringing cases without substantial justification and misrepresenting facts and evidence (or the lack thereof). Under current rules, the complainants receive updates on the State Bar's investigation that reporters would not otherwise have access to.

The proposed changes would cut the complainants out of the process early on, by saying that they do not have "standing" if the complaint was based on media coverage of the initial case. The Petition notes that there have been "at least 40 elections-related cases submitted since the 2020 election, and that "submissions concerning election-related litigation create a risk of the disciplinary process being weaponized by partisans or the appearance of that occurring."

Byers yesterday removed all references to lack of standing, and changed the hazy word "serious" (misconduct) to "sanctionable" (misconduct). The outcome, however, would be the same. He explains to Arizona's Law "the word 'standing' was confusing people who thought they were being limited, even if they had personal knowledge of ethical misconduct. The change clarifies the issue."

Attorney Dianne Post is one of the attorneys filing several elections-related ethics complaints, and she tells Arizona's Law that Byers' adjustments do not solve the issue.

"Byers comments do not respond to any of our concerns. It is gratuitous name calling from a person with no legitimate legal argument. To suggest that 40 complaints out of more than 2,000 is a flood of complaints is ludicrous. Those who express concerns about weaponizing the bar are the very ones who have been weaponizing the bar. Dave Byers ignores the fact that the complaints about lawyers involved in election law were the very lawyers accused of improperly attempting to weaponize the justice system in Arizona by filing frivolous, fraudulent lawsuits - and often found by the court to have done so. That is what should be most concerning, not legitimate Bar charges, regardless of what they are based upon, that these ethics violations occurred." 

One of the key accusations in several of the elections-related ethics complaints are that the attorneys who filed the dismissed cases (that often result in sanctions) were largely trying to use the court system to bring political talking points to a public square. The rules change could cap public information and create an imbalance in the access to that public square.

Byers answers to the Arizona Supreme Court's Chief Justice - currently Robert Brutinel - and his Petition was presented just one week before those Justices issued an  Opinion reversing sanctions imposed by two lower courts in a post-2020 elections case. The Justices acknowledged that attorneys (and their clients) may file "long-shot" elections cases for political motives, and reduced the likelihood that they would be sanctioned.

Byers' proposed rules change would reduce the likelihood that they would face public reporting of potential ethics investigations.

But Byers tells us that his motivation was different. "It’s being addressed now because I sit on the Bar’s discipline committee and have seen firsthand these types of cases come in, as well as the weaponization of the system. Sen. Kern filed a bill that was attempting to deal with this issue. It failed. I’m trying to get ahead of the next election cycle to bring about fairness and reasonableness to the process."

State Sen. President (and, attorney) Warren Petersen cited Kern's bill in his comment to the Supreme Court supporting the change.

But, Chandler attorney (and Arizona's Law contributor) Tom Ryan sees irony in Byers' and Petersen's weaponization comments. He points to (one of) the Legislature's ballot referral(s), which would give the Arizona Supreme Court Justices life terms:

"The wording of SCR 1044 completely politicizes Arizona’s judicial system.  

         1.      What defines “good behavior”?

         2.      A commission decides whether bad behavior existed.  the commission members are appointed by the chief justice.    

         3.      Once, it is found, how is the removal enforced?  By the Legislature?  By the commission?  By which court?  The Supreme Court?  

         The court system will be much more political than it is now when the chief justice appoints a commission to determine when judges will have to face retention."

(SCR 1044 was initially proposed by a group of Arizona judges frustrated that voters iu 2022 decided not to retain three judges.) 

The Supreme Court Justices are set to consider Byers' Petition in August.

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

Thursday, June 13, 2024

BREAKING: DOJ @CivilRights Division announces results of 3-year investigation into Phoenix PD patterns and practices


This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

SANCTIONS SCOREBOARD UPDATE: BREAKING: Mark Finchem hit with MORE sanctions in failed 2022 Election Contest

For the second time this week, the Court of Appeals has rejected 2022 Election Contest appeals from statewide Republican candidates. Today, they added more sanctions to the totals incurred by Mark Finchem.

In a unanimous Opinion, the judges affirmed the $47,706.50 in sanctions levied by the trial court, and added a (yet-undetermined) portion of Secretary of State Adrian Fontes's attorneys' fees in the groundless appeal.

Judge Samuel Thumma wrote the 11-page opinion for the three judge panel. explaining how the twists and turns of this long case resulted in today's decision. Finchem's prior counsel, Dan McCauley, withdrew part of the way through this (second) appeal, due to his agreement with the State Bar about his violations of ethical rules in the trial court portion.

However, the briefs had already been filed, and neither Finchem nor replacement attorney Dennis Wilenchik sought to amend them. The court today found that Finchem  had waived arguments that they wanted to assert by not mentioning them in the briefs, and had tried to withdraw some of the arguments that were presented in the briefs (at oral argument).

The Opinion is not clear about what portion of the Secretary of State's appellate fees will be awarded, and as to who will be responsible for them. Given the rest of the Opinion, it is possible that McCauley will be held partially responsible, even though he withdrew.

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

Wednesday, June 12, 2024

BREAKING: Will Sen. Bolick Recuse From Vote Tomorrow That Could Protect Supreme Court Justice Bolick?

The Arizona State Senate is planning to vote tomorrow on whether to push a referral to the ballot that would do away with judicial term limits. The Republicans hold a 16-14 edge in the chamber, and one of them is Sen. Bolick.


On the November ballot for retention is Supreme Court Justice Bolick. 

The two are Shawnna and Clint, respectively. Husband and wife.

The ballot referral measure contains an unusual retroactivity clause. If passed, it will undo the results of Justice Bolick's retention vote. That retention vote is generally not an issue, but Bolick's position in the majority in the Opinion that reinstated Arizona's 1864 abortion ban statute made his retention much more contentious.

Beyond the Bolick/Bolick issue, the measure the Senate plans to vote on greatly changes Arizona's highly-praised process for appointing and retaining judges in the more populous counties and the appellate courts.

Changing the process from a straight up and down retention vote every four (Superior) or six (appellate) years to allowing them to continue holding office "during good behavior" is the biggest change.

Here is the Senate's Fact Sheet - which was revised today - summarizing the changes that would be made if the Senate and voters pass it. The House passed it today on a party-line, 31-29, vote.

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

Tuesday, June 11, 2024

CONFIRMED: Kari Lake To Ask (AZ) Supreme Court To Review Election Contest Loss

Update, 6/13: "CONFIRMED: Kari Lake To Ask (AZ) Supreme Court To Review Election Contest Loss"

Kari Lake's attorney confirmed to Arizona's Law that he plans to ask the Arizona Supreme Court to review this week's 2022 Election Contest loss.

"We intend to seek review," Kurt Olsen emailed us. Olsen and co-counsel Bryan Blehm have 30 days (from the June 11 Opinion) to file their Petition for Review. The Arizona Supreme Court has discretion as to whether or not to accept the 

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Original article, 6/11: "BREAKING: Katie Hobbs Still Governor, Kari Lake Loses 2022 Election Contest Appeal"

The Court of Appeals (finally) REJECTED Kari Lake's appeal of her 2022 Election Contest, unanimously affirming the lower court's decisions. Judge Sean Brearcliffe authored the 23-page Opinion, which methodically dispenses of Lake's arguments to grant her relief from Superior Court Judge Peter Thompson's judgment dismissing her contest.

One of the arguments that Lake supporters have frequently used is that Maricopa County Co-Elections Director Scott Jarrett lied about the printer/tabulator issues that impacted some of the 2022 Voting Centers on Election Day. The Court of Appeals analyzed it: "At best, this is a misunderstanding between an attorney and a witness that was ironed-out during a trial."

Lake has been represented in this Election Contest by Kurt Olsen and Bryan Blehm. Both have been the subject of ethics complaints, and the Arizona Supreme Court recently ordered Blehm suspended for two months because of the case. It is unclear (but likely) whether Lake will appeal today's decision, and whether Blehm will be able to be part of such an appeal.


This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

BREAKING: 2 Court Hearings Set On Knocking the Border Crossing HCR2060 Off November Ballot, Beginning Tomorrow

UPDATE, 6/12, 4:30: "UPDATE: 

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Original article, 6/11: "BREAKING: 2 Court Hearings Set On Knocking the Border Crossing HCR2060 Off November Ballot, Beginning Tomorrow"

Tomorrow, two courts will begin hearing lawsuits seeking to throw the border crossing-related HCR 2060 off of Arizona's November ballot. Different civil rights and political groups filed similar lawsuits last week against the Republican-controlled Legislature's move to refer the measure to the ballot. Both allege that the measure violates the Arizona Constitution's single-subject provision.

The case filed by Living United for Change in Arizona and State Rep. Oscar de los Santos will have an initial status conference in front of Judge Katherine Cooper tomorrow. 

Meanwhile, Poder In Action, the Phoenix Legal Action Network and the Florence Immigrant and Refugee Rights Project today filed for a Preliminary Injunction against the ballot referral (below) and have an Order to Show Cause hearing in front of Judge Scott Blaney set for two weeks from tomorrow.

The Motion for the preliminary injunction claims that the measure asks voters to make two very different new crimes - one for illegally entering or staying in the country, and one for selling lethal fetanyl.

But the Legislature’s attempt to impose state law consequences against those who do not enter the country and State through a legal port of entry or who submit false documents or information in applying for employment or public benefits has nothing to do with imposing criminal liability on every adult who commits the “sale of lethal fentanyl.”

The Motion notes that the Legislature tried to head off this single subject issue by adding an affirmative defense if the lethal fentanyl was U.S.-sourced, but that that should not be sufficient. 

In fact, the Motion - filed by attorney Andy Gaona - alleges that HCR 2060 is actually a "chimera"* of four different bills that had been introducted by Republican lawmakers earlier in the session. That is presented as proof that the Legislature violated the single subject rule by "log rolling" (combining disparate items in order to get necessary votes from different lawmakers). The Arizona Supreme Court struck down similar budget-related log rolling in 2022.

Both suits name Arizona and Secretary of State Adrian Fontes (as the officer who accepted the Legislature's ballot referral). House Speaker Ben Toma and Senate President Warren Petersen have intervened and hired outside counsel.

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.


Wednesday, June 5, 2024

BREAKING: AG Mayes BLISTERS "Rogue" County Attorney Rachel Mitchell For Seeking Warrant of Execution In Gunches Case; "Only 1 AG At a Time"

Aaron Gunches has been close to being executed in Arizona in the past. But, whether today's Motion restarting the process for a warrant of execution restarted the countdown clock will depend on the showdown between the Maricopa County Attorney and the Arizona Attorney General.

Maricopa County Attorney Rachel Mitchell - who is seeking re-election and is in a tough primary battle - today filed a Motion with the Arizona Supreme Court. Before she could post her announcement video on X/Twitter, Attorney General Kris Mayes released a statement blistering Mitchell as a "rogue" County Attorney who does not recognize that there is "only one Attorney General at a time." Mayes promised a Motion to Strike Mitchell's effort.

The Arizona statute that will determine whether a gung ho County Attorney can ask the Supreme Court for the warrant of execution is a basic one giving the AG the power to represent the State in all proceedings before the highest court.

Here's the statute: "The department of law shall be composed of the attorney general and the subdivisions of the department created as provided in this article. Unless otherwise provided by law the department shall: 1. Prosecute and defend in the supreme court all proceedings in which this state or an officer of this state in the officer's official capacity is a party."

Mitchell contends that that is not exclusive and that she shares that power, although there is no evidence that any County Attorneys have ever tried to execute a death row prisoner before. "I believe that as an attorney who acts on behalf of the state, I also can appropriately ask the Supreme Court for a death warrant."

But, Mayes is having none of that. "Even though she knows what she is doing has no legal merit, County Attorney Mitchell seeks to circumvent the authority of the Attorney General’s office and to use victims as pawns for her own political gain. I have insisted the independent review be finished in a timely manner so that when a warrant is ultimately issued by my office, victims will have certainty that it will be carried out."

Gunches kidnapped and killed Ted Price in 2002, and pleaded guilty to it in 2007. He sought his own death warrant in 2022, but withdrew it in January 2023. Since then, Attorney General Mayes commissioned an independent death penalty review and last month announced that she would resume seeking warrants of execution late this year.

We are taking the unusual (for us) step of not only publishing the Motion filed today, but also the full statements from Mitchell and Mayes.

This article was reported by AZ Law founder Paul Weich. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

BREAKING: AZ House Speaker Toma & Senate Pres. Petersen Waived Leg Privilege, Must Sit For Depos In Transgender Sports Case; But, Minor Girls Do, Too

In a twist this afternoon, a judge issued an Order compelling Arizona House Speaker Ben Toma and Senate President Warren Petersen to sit for...