Saturday, September 26, 2020

NEW: Ballot Harvest October Surprise For AZ? Ruth-less Supreme Court Considers TWO Arizona Election Law Cases On Tuesday

As the nation prepares for the burial of Supreme Court Justice Ruth Bader Ginsburg and the nomination of her replacement, the remaining eight Justices are set to consider not one, but two, Arizona election law cases on Tuesday. Depending on what the Court decides this week, Arizona could be in for an "October surprise".

The Ruth-less Court is not hearing oral argument on the cases, but deciding - behind closed doors - whether or not to accept the cases for decision. Besides the Arizona impacts, both potentially could impact election laws across the country.

In the more widely-watched case, Arizona's so-called "ballot harvesting" law is at issue. The Ninth Circuit found that the Arizona Legislature had discriminatory intent in passing the law that prohibits people and groups from collecting and turning in voters' early ballots. (There are limited exceptions for family members, care givers and others.) The Ninth Circuit granted a stay on its decision as both Attorney General Mark Brnovich and the Republican National Committee appealed, so the prohibition remains in place pending "final disposition". (The Stay Order is re-published below.)

It is very possible that the Supreme Court will accept the case. However, IF the Supreme Court denies certiorari shortly after the conference, that would end the stay and remove the ban from the books. In this election - where more than 3/4 of Arizonans will get (requested) early ballots in the mail in just two weeks - that could scramble everyone's GOTEV* efforts.

The other case the Court will be conferencing about on Tuesday is about this year's election, but would only impact future situations. Arizona Governor Doug Ducey was sued for not calling for an earlier special election to fill Senator John McCain's seat after his passing in 2018. The Legislature had passed a law which permitted Ducey to appoint first Jon Kyl and then Martha McSally to the seat. The Special Election is being held this November 3, more than two years after McCain's passing.

The constitutionality of the statute was at issue in the Tedards case, and the plaintiff sought to move up the special election. The plaintiff lost at both the District Court and 9th Circuit levels, and it would be a surprise if the Supreme Court decides to hear this case.

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*"Get Out The Early Vote"

Friday, September 18, 2020

NEW: U.S. Senate Moves To Confirm Tucson Judge, In Topsy-Turvy Battle

UPDATE 9/23, 1:45pm: Judge John Hinderaker was CONFIRMED by the U.S. Senate this afternoon, on a 70-27 vote. As expected, the vote was topsy-turvy, with almost all of the opposition to President Trump's nomination coming from Republican Senators. Both of Arizona's Senators voted "aye". (See below for statement.) 

This is a developing story and will be updated as warranted.

(UPDATE 9/23, 11am: This morning's cloture vote confirms the topsy-turvy nature of the Hinderaker nomination. Republicans cast 22 of the 26 votes against moving forward on the nomination, and Democrats' votes contstituted 42 of the 71 aye votes.)

UPDATE, 9/23, 9:35am: The Senate voted 71-26 to close debate on the Hinderaker nomination. The vote to confirm him will take place this afternoon.


President Donald Trump's nomination of Tucson Judge John Hinderaker to the District Court bench heads to the Senate floor on Monday after topsy-turvy behind-the-scenes maneuvering.

The Pima County Superior Court jurist was nominated for the lifetime position nearly one year ago. It has been stalled since March, after the Senate Judiciary Committee recommended his confirmation on a 16-6 vote. However, the six "no" votes all came from Republican Senators, apparently led by Missouri Senator Josh Hawley and concerns regarding the Second Amendment. Yesterday, Senate Majority Leader Mitch McConnell filed the cloture motion to move it to the floor.

Sen. Kyrsten Sinema (D-AZ) tells Arizona's Law that she is "pleased" to see the nomination moving to the  vote next week. “Judge Hinderaker brings to the bench a wealth of legal knowledge, decades of litigation experience, and a stellar reputation for integrity and fairness. I’m pleased the White House worked with me to advance his nomination.”

If Hinderaker is confirmed next week, it will mean that Arizona's District Court bench will be at full strength for the first time in recent memory. Arizona's Senators did introduce a bill to increase the size of the Arizona bench, but it has not moved forward.

(thanks to Judicial Nominations Blog for the heads-up)

"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. 

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Tuesday, September 8, 2020

BREAKING: Kanye Loses Arizona Supreme Court Appeal, Off the Ballot In Key Swing State

Sidestepping the issue of Kanye West's registration as a Republican in Wyoming, the Arizona Supreme Court nonetheless kept him off of Arizona's November 3 ballot. They instead based today's decision on the fact that the rapper/celebrity had not filed the legally-required Statement of Interest before collecting signatures to be placed on the ballot. That statute was recently enacted by the State Legislature.

The court challenge to West's last minute effort to get on the Arizona ballot was primarily based on the fact that both West and his slate of electors (for the Electoral College) were registered as Republican, and that he could thus not get on the ballot by collecting signatures as an independent candidate. The issue of the Statement of Interest became an after-thought, and the trial court judge did not address that requirement in his ruling last week.


<developing story, check back for more details>

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"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 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, September 3, 2020

BREAKING: Kanye West Will NOT Appear On Arizona's Presidential Election Ballots In November, Judge Rules Today (READ Pleadings)

Musician/celebrity Kanye West cannot appear on Arizona's ballot for President in November, a judge ruled this afternoon.

Maricopa County Superior Court Judge Scott McCoy heard oral argument, questioned the attorneys for both sides, and determined that because West is registered as a Republican, he cannot petition to be on the ballot and avoid the usual party primary system.

Kanye West has filed to run for President on the November 3 ballot in several states, running on the (newly-formed-yet-ubiquitous) "Birthday Party". He has made some references to still being supportive of Republican President Donald Trump, and many of the vendors and attorneys assisting him in various states have ties to the Republican Party. Here in Arizona, attorney Tim LaSota represents West; he has been counsel for the Republican party and many Republican candidates and groups.

The challenge to West is based on the surprising facts that both West and his slate of Arizona electors (for the electoral college) were registered Republicans. (After the case was filed on Monday, the electors re-registered as independents on Tuesday.) West is attempting to qualify for the Arizona ballot under a procedure for "any qualified elector who is not a registered member of a political party that is recognized". (A.R.S. 16-341(A). (The reason it limits persons from recognized parties is because those persons already have the opportunity to run in the Republican - or, Democratic - primary election.)

Plaintiff's counsel Joseph Roth and Josh Bendor (from the Arizona law firm of Osborn Maledon) told McCoy that Arizona's ballot access laws properly are designed to "avoid this kind of late stage chaos" and that allowing him on the ballot at this point would be "confusing to voters, unfair to voters."

Timothy Berg (from Fennemore Craig), representing the slate of West electors, countered that the term "qualified elector" in the statute only applies to Arizona residents and not to Presidential candidates from other states. 
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*"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 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, September 1, 2020

BREAKING: Unconstitutional! AZ Supreme Court Says State Can't Change Threatening Behavior To a Felony Just Because Man Is Member Of Street Gang (READ Opinion)

 The Arizona Supreme Court today determined that an Arizona law that makes it a felony for an individual to engage in threatening or intimidating behavior simply because the person is a member of a criminal street gang. Threatening/intimidating is normally a misdemeanor.

The Court did not consider the First Amendment aspects of belonging to a group. Rather, the Justices unanimously found that such an automatic bump from misdemeanor to felony violates the defendant's constitutional due process rights.

The Opinion vacates the Court of Appeals decision, but affirms the Maricopa County Superior Court Judge's decision. The case involved two incidents in 2017 where Christopher Arevalo threatened convenience store employees by pretending he had a gun, and threatened police officers one month later. The Maricopa County Attorney's Office prosecuted him for felonies, but did not allege that there was a connection between the threats and his gang affiliation.

Justice John R. Lopez IV wrote for the Court, and determined that "(w)e cannot, and will not, rewrite the statute to save it." He provided a clear example for why Arizona's statute violates due process.

We hold that § 13-1202(B)(2) violates Scales’ due process standard because it enhances criminal penalties based solely on gang status without a sufficient nexus between gang membership and the underlying crime of threatening or intimidating. Indeed, it permits sentencing enhancement based on gang status even if the crime is wholly unrelated to a defendant's gang membership. An example is illustrative. Assume a teenager is, unbeknownst to his mother, a gang member. In the midst of a domestic disturbance, he threatens to strike his mother and is subsequently charged with threatening or intimidating. Under the State’s argument and the court of appeals’ reasoning, the defendant would be subject to a (B)(2) sentencing enhancement for gang membership even though his mother was unaware of his affiliation, he never invoked it to bolster his threat, and the crime was altogether unrelated to his gang activity. And even if the mother knew of her son’s gang membership, the State would not have to prove that knowledge or otherwise relate his membership to the offense to invoke (B)(2)’s enhancement. By its terms, § 13-1202(B)(2) permits sentencing enhancement absent any nexus between gang membership and the crime.

The Court also considered what it calls an "expansive definition" of "criminal street gang." 

Justice Clint Bolick, joined by retired Justice John Pelander (sitting in because Justice Bill Montgomery had to recuse himself), took the opporunity to write about trying to get rid of the prevalent judicial presumption that statutes are constitutional.

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"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 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, August 25, 2020

BREAKING: AZ Supreme Court Won't Take 130 Bar Owners' Lawsuit Against Ducey/Christ; Challenge Moves To Superior Court For Injunction Request

The Arizona Supreme Court declined to hear a challenge from dozens of Arizona    *
*"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 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, August 20, 2020

BREAKING: Arizona Supreme Court Keeps “Stop Surprise Billing and Protect Patients Act" OFF Ballot, "Smart and Safe Arizona" ON

 The Arizona Supreme Court this afternoon ruled that the “Stop Surprise Billing and Protect Patients Act" will be kept off the November 3 ballot, affirming the trial court's ruling invalidating 28,000 signatures when the persons who gathered those signatures failed to show up for the trial.

Yesterday, the Court determined that the Invest In Ed ballot initiative would be placed on the ballot, and the court has challenges to the other two ballot measures to rule on.

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*"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 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, August 19, 2020

BREAKING: Supreme Court Reverses, Invest In Ed Initiative Back On The Ballot (READ Decision)

 In a major decision, the Arizona Supreme Court has reinstated the Invest In Ed ballot initiative that will place a surcharge on higher income earners to help fund education. The decision reverses the Superior Court opinion that removed the measure on the basis that the 100-word description was not comprehensive enough. 

"The Court unanimously finds that the 100-word description did not create a significant danger of confusion or unfairness and reverses the trial court ruling." 

The Justices did agree with Judge Christopher Coury that the incentives that the petition circulating company paid individuals who collected many of the signatures "did not warrant the invalidation" of the petition signatures, although recent statutes prohibit initiative circulators from paying by the signature.

Today's decision on the 100-word description will bode well for the other three ballot measures - all of which are currently in front of the Supreme Court on similar challenges.

A more complete Opinion will likely be published in the next couple of months.
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​*"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 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, August 7, 2020

NEW: Close the Pandora's Box You Opened In the 2018 Invest In Ed Case, Arizona Supreme Court Told (In Molera v. Invest In Ed, Part Deux); READ Today's Briefs

The Arizona Supreme Court should close the Pandora's Box it opened in the 2018 battle over Invest In Ed. That's what the proponents told the Justices today in their Opening Brief. For their part, the opponents of the measure also appealed in an effort to have the Supreme Court declare the incentives offered to the paid petition circulators violated Arizona law.

Superior Court Judge Christopher Coury decided that this year's model of the Invest In Ed ballot measure should be thrown out because the required 100-word summary did not properly describe all of the provisions of the measure designed to raise monies for education salaries by surcharging taxable income over $250,000.

Coury's opinion points out five provisions in the measure's language that he believed should have also been included in the 100-word summary. As today's Brief points out, it required 127 words for him to describe those provisions. Proponents suggest that if the Supreme Court affirms the lower court, it will effectively eliminate Arizonans' constitutional right to propose and pass laws through ballot measures. 

 "The result, if not overturned, would be an unconstitutional and untenable new standard under A.R.S. § 19-102(A): (1) an initiative’s “principal provisions” are whatever a challenger can imagine, (2) initiative proponents must limit themselves to simple laws able to be fully described in 100 words or less, and (3) even then, proponents’descriptions must use language preferred by their opponents in a quintessential example of compelled speech. It is an impossible standard to meet, and conflicts with article IV, pt. 1, § 1 of the Arizona Constitution (“Article IV”) and the First Amendment."

The contents of the 100-word summary became the focus of all of the challenges to ballot measures this year, following the Supreme Court's decision removing Invest In Ed from the 2018 ballot. In that case, the Court found that the summary improperly described how much individuals' taxes would go up. 

The opponents, supported by the Arizona Chamber of Commerce and others, focus their attention on limiting how future ballot measure campaigns can pay their circulators. In 2014, the Arizona Legislature began restricting how circulators could be paid for gathering petition signatures - only for ballot measures, not for candidates - and then came up with a law that prohibits paying them per signature.

Their appeal here is challenging creative promotions offered by the petition circulating company. The Supreme Court's ruling on this may end up setting some parameters on what is an acceptable way to incentivize circulators without running afoul of the law.


Thursday, August 6, 2020

BREAKING: PLEASE Keep Gyms Closed "In the Midst of the Unprecedented COVID-19 Pandemic"! Governor Ducey Appeals To A Higher Court (READ pleadings)

Don't let gyms reopen next week! That is the Arizona Governor Doug Ducey's battle cry in today's appeal to both the Arizona Court of Appeals and the Superior Court Judge who ruled against him on Tuesday.

Finding that the Governor's Executive Orders re-closing gyms in June, and keeping them closed for the foreseeable future, Judge Timothy Thomason found that Ducey had violated the fitness centers' right to procedural due process (although complying with substantive due process). He said that they must have a "prompt opportunity to file for reopening" by next Tuesday.

Ducey asked Thomason to put that ruling on hold while he takes the issue to the Arizona Court of Appeals. The Special Action was filed either late yesterday or early today. As put in that pleading, the Governor "seeks immediate, emergency relief to avoid the harmful public-health consequences of reopening gyms—against the advice of medical experts—in the midst of the unprecedented COVID-19 pandemic."*

Ducey's Communications Director, Patrick Ptak, tells Arizona's Law that "as we continue to work with these industries on when and how these reopenings should occur, our top priority will remain to protect and defend public health."

In the suits brought by both Mountainside Fitness and eOS Fitness, Judge Thomason had suggested in early July that the Governor and the Department of Health Services needed to come up with some process for the gyms to show that they were ready to safely reopen. He was not impressed with AZDHS's clever process, quietly posting an "attestation" form for gyms to complete. That form would not permit them to reopen so long as the Governor kept a "mandatory" closure in place. And, that is exactly what Ducey did in his July 23 Executive Order.

Thomason held a hearing on Monday, and issued his stern 24-page decision the following day.

(As a side note, Mountainside and eOS had appealed the judge's earlier ruling, so the Court of Appeals now effectively has a both-sides-of-the-coin appeal.)

Given that, it is questionable whether Judge Thomason will grant Ducey a stay pending the appeal.

(UPDATED, 8/7/20, to include response from Governor's Office.)

*It could be noted that this dire warning to the Court came while the Governor was in Washington exchanging praise with President Donald Trump over Arizona's handling of the pandemic.

NEW: Ballot Harvest October Surprise For AZ? Ruth-less Supreme Court Considers TWO Arizona Election Law Cases On Tuesday

As the nation prepares for the burial of Supreme Court Justice Ruth Bader Ginsburg and the nomination of her replacement, the remaining eigh...