Monday, April 5, 2021

BREAKING: AZ AG Brnovich Seeks Injunction Against Biden Administration/American Rescue Plan Provision (READ Motion)

UPDATE, 4/8 at 2:30pm: The AG's office informed the court this afternoon that they have, in fact, completed service of the Complaint upon Janet Yellen/Treasury Department and the U.S. Department of Justice. (Side note: can you imagine how much certified mail those agencies have to sign for each and every day?)

This paves the way for Judge Diane Humetewa to set a hearing on the injunction requested on Monday.

ORIGINAL ARTICLE:
Arizona Attorney General Mark Brnovich filed for an injunction this afternoon to knock out a provision of the American Rescue Plan which would prevent states from cutting taxes with Covid-19 relief funds received from the federal government. Calling the no-offset provision "patently unconstitutional", Arizona is asking federal judge Diane Humetewa to stop the feds from any plans to enforce it.

Today's pleading states that Arizona stands to receive approximately $4.7 billion of the $270B pot of funds. While noting that Arizona state government was hit hard by the pandemic, the AG wants the court to grant the injunction so that Governor Doug Ducey can pursue his $600M in permanent income tax cuts or the Legislature can confidently vote on measures that would offset the revenues raised by the voter-passed Invest In Ed proposition.

The federal law does have some ambiguity, which has been exemplified by conflicting interpretations by Sen. Joe Manchin (D-WV) and Treasury Secretary Janet Yellen. The motion for injunction focuses on the words "directly or indirectly" in the following section of the law: 
A State or territory shall not use the funds provided under this section or transferred pursuant to section 603(c)(4) to either directly or indirectly offset a reduction in the net tax revenue of such State or territory resulting from a change in law, regulation, or administrative interpretation during the covered period that reduces any tax (by providing for a reduction in a rate, a rebate, a deduction, a credit, or otherwise) or delays the imposition of any tax or tax increase. (emphasis added)
The lawsuit was filed two weeks ago, and there is no indication on the docket that the federal government has been served yet. Briefly, the case was assigned to District Court Judge Susan Brnovich - the AG's spouse.

The Motion also comes on the same day that (AG) Brnovich went on Fox News to invite Vice President Kamala Harris to tour the U.S./Mexico border with him.
 "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, March 31, 2021

READ OPINION: AZ Supreme Court Explains Why It Knocked Initiative Off Last Year's Ballot

 

 "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.

Friday, March 26, 2021

NOW THAT'S WHAT I CALL A CONFLICT: Judge Brnovich Briefly Assigned To Hubby's New Suit Against Biden Administration (ARIZONA'S LEGAL SHORTS)

Arizona Attorney General Mark Brnovich yesterday sued the Biden Administration over the COVID-19 Rescue Package signed into law earlier this month. After asking for it to be re-assigned to a District Court Judge yesterday, Brnovich briefly had Judge Susan Brnovich on the case this morning.

(photo: Gage Skidmore)

Within hours of the random assignment, Judge Brnovich recused herself and the case was reassigned to Judge Diane Humetewa.

Brnovich (the AG) is challenging what they call a "plainly unconstitutional" provision of the new law that restricts a state's right to cut taxes if they accept COVID-19 relief funds provided in the package. As the action notes, there appears to be a difference between Congress's legislative intent (broad) and the more narrow prohibition which the Treasury Department seems poised to interpret/enforce.

Brnovich (the judge) was nominated to the lifetime position by former President Donald Trump - the first of five he nominated. Judge Humetewa was nominated by former President Barack Obama.

 "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, March 17, 2021

NEW, BILTMORE GOLF COURSE WARS CONTINUE: Anti-SLAPP shot scores, Jerry Colangelo in penalty box and fined* (READ Decision)

As Jerry Colangelo - the godfather of Phoenix sports - is accompanying GCU to the NCAA men's basketball tournament this weekend, his company owning the Biltmore golf courses was slammed yesterday for bullying homeowners.

JDM Golf, which Colangelo owns with developers David Eaton and Mel Shultz, counter-sued the homeowners who are opposed to the expansion of non-golf activities permitted on the courses. Superior Court Judge Daniel Martin signed a judgment (below) dismissing the counterclaim and sanctioning JDM for $75,000 of attorneys' fees and penalties.

Colangelo's company - partly represented by well-known Phoenix attorney Leo Beus - claimed the owners of some of the multi-million dollar homes had defamed the company, invasion of privacy, breach of contract (and other claims). The HOA and neighbors moved to dismiss the counterclaim, saying (in part) that it violated Arizona's anti-SLAPP law. 

In that law, "SLAPP" stands for "Strategic lawsuits against public participation". Judge Martin was persuaded that the homeowners' actions opposing the golf course expansion by setting up websites, posting signs and filing this lawsuit were all part of petitioning the city of Phoenix.

Judge Martin agreed, and found that the counterclaim was filed for the "improper purpose" of trying to discourage such public participation. He dismissed the counterclaim with prejudice, awarded $62,598 in attorneys' fees and $12,520 in sanctions.

Jason Morris, one of the attorneys representing the neighbors, explains it to Arizona's Law this way:

 “The court recognized JDM Golf’s multi-count counterclaim against the homeowners for exactly what it is: an oppressive and meritless attempt to harass and intimidate Arizona citizens in order to discourage them from exercising their constitutional right to participate in civic engagement. Arizona’s anti-SLAPP statute exists to prevent precisely this kind of strategic suit by deep-pocketed special interests seeking to chill public debate. We appreciate the court dismissing JDM’s counterclaim and handing down a sizable financial penalty to dissuade JDM from attempting this kind of abusive action again in the future.”

The battle on the original lawsuit by the neighbors continues. And, JDM's proposal will be in front of the Phoenix Board of Adjustment tomorrow (Thursday).

* In addition to the Suns and the Diamondbacks, Colangelo was also instrumental in getting the NHL's now-Phoenix Coyotes to join the Canadian snowbirds who make the permanent move to the desert. 

"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, March 16, 2021

WATCH: New Videos Showing Jacob "QAnon Shaman" Chansley Entering Capitol, Helped Convince Judge To Keep Him Detained

 Last week, U.S. District Court Judge Royce Lamberth refused to release Mesa's Jacob Chansley from jail pending trial for his involvement in the January 6 insurrection at the U.S. Capitol. In part, he relied on unreleased videos of his actions referenced by prosecutors.

Yesterday, Lamberth ordered the clerk to make those videos available on the court's website. Here are those videos, showing Chansley (aka Jake Angeli, aka QAnon Shaman) on the scaffolding outside the building and entering the building as fellow rioters broke through the windows next to him.

The videos show the anger and the mob mentality, but were mainly used to show that Chansley was not "invited in" thinking that he was just going to observe Congress as they debated whether Arizona's Electoral College votes should be accepted.

 "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.

Monday, March 15, 2021

BREAKING: AZGOP & Its Attorneys Must Pay Secretary of State's Attorneys Fees For Bringing "Groundless" Election Lawsuit, "Gaslighting"

The Arizona GOP and its attorneys must repay taxpayers more than $18,000 for attorneys' fees incurred in defending one of the several post-election lawsuits. Superior Court Judge John Hannah issued the 10-page minute entry this morning explaining why he found that the case - which was challenging Maricopa County's legal decision to audit 2% of vote centers rather than 2% of precincts - was groundless.

AZGOP attorney Jack Wilenchik had warned the judge that granting the fees would show more bias and that he should not dream of treading into dangerous First Amendment territory by imposing fees.

Hannah's minute entry, handed down slightly more than two months after briefing was completed, blasts the AZ GOP's counsel, noting that the lawsuit was filed late and that it named the wrong defendants (among other issues). Even so, counsel came up with reasons to justify the errors that the judge did not believe. "When a litigant resorts to that kind of sophistry, instead of simply admitting it made a mistake, it invites inquiry into its motives."

Hannah goes on to suggest that Wilenchik was trying to gaslight him. "The plaintiff is not characterizing either its litigation posture or the Court’s inquiry honestly. The Court’s questions addressed the plaintiff’s own arguments. For the plaintiff to suggest otherwise is gaslighting. It evinces a lack of good faith."

Finally, he blasts the AZGOP for abusing it "privileged position" in the election process. "Arizona law gives political parties a privileged position in the electoral process on which our self-government depends. The public has a right to expect the Arizona Republican Party to conduct itself respectfully when it participates in that process. It has failed to do so in this case."

UPDATE, 3pm: Arizona Mirror is reporting that the AZGOP and its counsel is planning to appeal today's decision. (Commentary: As someone currently involved in such an appeal of an A.R.S. 12-349 fee award, the AZGOP has a tough row to hoe ahead of it and is risking additional sanctions.)

Read the scathing decision below.

 "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, March 9, 2021

MAD DOG BAD, POLICE DOG GOOD: Murphy and His Officer Receive Qualified Immunity Against Excessive Force Claim (READ 9th Circuit Opinion)

A Gilbert police dog and his officer should receive qualified immunity from an excessive force claim, after biting a recalcitrant drunk driver. That was the opinion of 9th Circuit judges this week.

Murphy (a Dutch Shepherd who has since retired*) was ordered to bite Scott Hernandez only after the intoxicated driver failed to immediately pull over, had resisted getting out of his car and officers had gradually (tugging, pepper spraying, etc) escalated their efforts. Murphy did not try to pull Hernandez out of the car, and the driver continued to resist even after Murphy had held on to his arm for 50 seconds before releasing (upon command).

The 9th Circuit panel unanimously affirmed Judge Susan Brnovich's decision granting Murphy's officer qualified immunity. The 15-page opinion details the interaction that led to Hernandez's excessive force claim against the town of Gilbert and Officer Gilbert**, and then analyzes how the plaintiff could be successful: "To defeat qualified immunity, Hernandez must show that the state of the law as of May 5, 2016, gave a reasonable officer “fair warning” that using a police dog on a noncompliant suspect, who had resisted lesser methods of force to complete his arrest, was unconstitutional."

Although Judge Richard Tallman - writing for a panel which included Bridget Bade of Arizona - searched hard for a case "on all fours", the facts in this case were slightly different from previous 9th Circuit decisions. They found that the officers had been reasonable, given Hernandez's repeated refusals to comply. 

Not only did Tallman drop in the "on all fours" legal term, but without comment noted that the chain of events had begun with Hernandez sharing too many drinks at the local saloon. It is unlikely that Hernandez could imagine ending up in front of the 9th Circuit when he was with his friends at the (now closed) Mad Dog Saloon.

Good dog, Murphy.

*We have not yet received confirmation that the retirement was not related to this relatively benign incident. 

**Really, Officer Steve Gilbert is (still) part of Gilbert Police Department's K-9 Unit.

"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.

Arizona Should Prioritize People with Disabilities for COVID Vaccines - Like Other States (GUEST COLUMN)

 (This Guest Column is contributed by Kara Karlson, disability advocate and election law attorney.)


Arizona has administered over 2 million COVID-19 vaccines.  This is a huge milestone and great news.  Unfortunately, despite promises from state leaders that the most vulnerable would be prioritized, pleas from multiple disability advocacy organizations have so far fallen on deaf ears.  The failure to vaccinate our most vulnerable should (and can) be rectified immediately.  It is the morally right thing to do, it saves taxpayer dollars, and would be simple to administer. 

 

COVID-19 Disproportionately Affects People with Disabilities

 

COVID-19 poses a disproportionate burden on people with intellectual and developmental disabilities.  People with disabilities may be more likely to be infected with COVID-19 because many require care from people outside the home, use mass transit, or work jobs without a telework option.  We know that children (0-17 years old) with intellectual and developmental disabilities (“I/DD”) are significantly more likely to be diagnosed with COVID-19 than other children.


 People with intellectual and developmental disabilities are also much more likely to suffer adverse outcomes than people without disabilities.  Evidence early in the pandemic indicated that people with intellectual and developmental disabilities were two to three times more likely to die from COVID-19.  This early finding has been repeatedly confirmed by independent research.  Arizona recently prioritized vaccination for people with Down’s Syndrome, who are ten times more likely to die from COVID-19.  This is a step in the right direction, but it leaves many others in the disabled community unprotected.

 

The increased risk of death is most marked in children with intellectual and developmental disabilities, who are ten times more likely to die from COVID-19 than other children.  The increased likelihood of death for children, who can’t yet get vaccinated, makes it very important that their caretakers are prioritized.  Despite the clear and urgent need to prioritize people with I/DD, they are not currently a priority for state health officials. 

 

Savings to the State

 

In addition to being the right thing to do for people with disabilities, it is also the right thing to do for Arizona’s taxpayers.  Care for people who are hospitalized with COVID-19 is costly, and often includes long-term ICU care.  This care is more expensive if complicated by other health conditions that many people with I/DD have.  On the other hand, COVID-19 vaccines cost between $10 and $30 per dose.  A growing number of other states have recognized the value of prioritizing people with I/DD for COVID-19 vaccines, and Arizona should join their ranks. 

 

Verifying Eligibility

 

A simple way to verify eligibility for vaccination would be to allow people 16 years of age and older (or caregivers to younger DDD members) use their Division of Developmental Disabilities (“DDD”) insurance card to be vaccinated. 


To be a DDD member, a person must be diagnosed with at least one of the following disabilities:  cerebral palsy, epilepsy, autism, or intellectual disabilities.  In addition to the diagnosis, a member must have “significant limitations in daily life skills” such as an inability to communicate, requiring significant help with bathing, and needing daily supervision for their safety.  DDD members are significantly more likely to have multiple comorbidities that make them more susceptible to severe COVID-19. 

 

The state vaccine portal already requires anyone who is registering for an appointment to provide their insurance information.  DDD Members have unique Member IDs, and the group name “AZDDD” on their insurance card immediately identifies them as a DDD Member.  The state portal should recognize DDD Members and allow them to make an appointment for a COVID-19 vaccination.  Alternatively, the member could show their insurance card at the vaccination site.    

 

Call to Action

 

Under the current vaccination schedule, thousands of Arizona’s most vulnerable people remain susceptible to a virus that could kill them or add health complications to a population already coping with significant, chronic health conditions.  The new age-based approach taken by the state in some ways exacerbates this disparity.  There is no scientifically-based reason a healthy middle-aged person should qualify for vaccination before a person with severe developmental disabilities.  Given the increased risk of hospitalization and death DDD Members face as a result of their disabilities—and the fact that the infrastructure exists to allow the state to reserve these vaccines for those who qualify—there is no excuse to not prioritize DDD members for COVID-19 vaccines. 

 

If you want to help make a difference for people with I/DD, please join the Momvocate community.  We need everyone involved, and contacting their government health and elected officials, to make a difference.  


(Kara is the mother of two vivacious daughters, disability advocate and member of the Arizona Developmental Disabilities Advisory Council, election law attorney, and Arizona Pioneer descendant. Arizona's Politics and Arizona's Law publish guest commentaries from time to time. If you have something on your mind that would be of interest to our readership, please inquire within. Better yet, send an email to "Paul.Weich.AZlaw @ gmail.com".)

"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: Shooter Can't Butt In As AZ Supreme Court Considers Whether Mesnard Had Legislative Immunity In Discussing Sexual Harassment Investigation

Former Arizona Rep. Don Shooter tried to supplement his counsel's arguments to the Arizona Supreme Court, but was rebuffed. The brief interaction occurred after the Justices grilled both sides about whether former House Speaker J.D. Mesnard had immunity while expelling Shooter for sexual harassment charges.

Shooter claims that Mesnard defamed him and lost his legislative immunity when he edited and released the investigative report in 2018, and when he then issued a press release explaining his actions to expel. Mesnard's counsel told the Justices that "he was Speaker and he was doing something that is immediate" and therefore the absolute immunity should apply to both the report and the release.

The one thing that both attorneys seemed to agree on, albeit for different reasons, is that Mesnard did not get special immunity coverage because of his role as Speaker. Several of the Justices pressed the idea, and Justice Bill Montgomery finally told a very hesitant Stephen Tully (representing the Mesnards) that "these aren't gotcha questions".

Philip Byler represented Shooter and tried to emphasize that Mesnard was "making it up (as he goes along) and that's why he should not be having immunity." Justices seemed equally frustrated with many of his responses, and Byler closed by warning the Court that "the facts of this case are pretty ugly - do you want that absolutely immune?"

Justice Ann Timmer repeatedly asked why the press release should not be covered by the Arizona Constitution's immunity provisions, and mused whether Shooter's position would force Arizonans to watching hours of ACTV (Arizona Capitol Television) to know what their lawmakers were doing.

Chief Justice Robert Brutinel thanked the attorneys at the close of arguments. Shooter then started speaking up, although it was not audible on the livestream. Brutinel shut him down, saying "I'm sorry, Mr. Shooter, we are not going to hear from you, sir." (Shooter can be seen moving down to the front row during Tully's arguments, above.)

Shooter is primarily represented by Tom Horne, a former Arizona Attorney General. Tully also presently represents state Senate Republicans in the November election audit wars with Maricopa County.

The video from the oral arguments can be watched here.

There was no decision below on whether Mesnard actually defamed Shooter in his characterization of the report. This appeal is strictly on the immunity issue. The decision will be made by five of Arizona's seven Justices, as both Andrew Gould and James Beene did not participate.

"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 AG Brnovich Seeks Injunction Against Biden Administration/American Rescue Plan Provision (READ Motion)

UPDATE, 4/8 at 2:30pm: The AG's office informed the court this afternoon that they have, in fact, completed service of the Complaint upo...