Thursday, August 15, 2019

NEW: Goodyear Firefighter's Workers' Comp Claim For Leukemia Should Be Re-heard, Says Arizona Supreme Court (READ Opinion)

A Goodyear firefighter  now battling a rare leukemia may continue fighting for his workers' compensation claim, according to a unanimous opinion today from the Arizona Supreme Court. The Justices found that the Administrative Law Judge who had affirmed the denial of the exposure claim had not issued "any findings" to support his decision, and that it must therefore be set aside.

Gilbert Aguirre has been a Goodyear firefighter for 12 years and has responded to fires at meth labs, and others involving jet fuel, paint thinners and other chemicals. In 2015, he was diagnosed with chronic myeloid leukemia - or, CML. He brought the claim that his CML was caused by his workplace exposure to those toxic chemicals.

CopperPoint Insurance denied the claim against the City, and the Industrial Commission of Arizona reviewed the denial. The ICA's Administrative Law Judge heard conflicting testimony from both sides and affirmed the denial without stating his specific reasons for finding that Aguirre had not carried his burden of proof that the toxic chemicals he had encountered caused the CML.

Justice Andrew Gould wrote the opinion for the unanimous court and blasted the terse decision from the ALJ:
Here, because the ALJ made no findings, the award is legally deficient and must be set aside. Although the ALJ generally cited the occupational disease statute, he made none of the findings required under § 23-901.01(B) and (C). Specifically, the award neither resolves the material issue of whether Aguirre “was exposed to a known carcinogen . . . and the carcinogen is reasonably related to” his CML, nor does it resolve the conflicting opinions of Drs. Wilkenfeld and Salganick on this material issue. 
The Court also rejected the City's argument that it had been the firefighters' responsibility to specifically raise the argument that the ALJ decision was deficient. "Here, the ALJ made no material findings at all. Thus, because he failed to fulfill his statutory duty, we cannot, as a practical matter, review his decision on appeal."

The full opinion is below.




"AZ Law" is a new program broadcast on Sun Sounds of Arizona, a non-profit service of Rio Salado Community College, providing audio access to print information to people who cannot read or hold print material due to a disability. 

Our next broadcast installment will be on Sun Sounds of Arizona at 11:00a.m., on Saturday, August 17. You can donate or listen to Sun Sounds here.

Wednesday, August 7, 2019

NEW: AZ Supreme Court Rejects Gang Killer's Argument That Death Penalty Scheme Is Unconstitutional (READ Opinion)

The Arizona Supreme Court today unanimously rejected the appeal of a gang member who killed his (semi-)brother-in-law and the man's girlfriend, then buried the bodies in his mother's backyard. In so doing, the Justices rejected his challenge to Arizona's death penalty scheme, saying that a proper jury instruction narrows an otherwise-vague aggravating factor.

Alan Champagne presented more than two dozen bases for appealing the Maricopa County jury's death sentence, and the Court rejected all of them. Champagne was convicted for the 2011 Phoenix murders of Philmon Tapaha and Brandi Hoffner in his apartment after a night of drinking, and smoking meth. After a week, he then conned the apartment maintenance man to help him build a wooden box (for car parts) and buried the bodies in his mother's backyard. (The house was being foreclosed upon.)

After Hoffner had witnessed the killing of Tapaha, Champagne offered her some meth, prevented her from leaving the bedroom, and then strangled her with an electrical cord. The State presented this to the jury as an aggravating factor in the sentencing.

Champagne argued that the statute's definition was vague, and that only the Legislature/Governor could narrow it. The Supreme Court disagreed:
Section 13-751(F)(6) provides that the trier of fact shall
consider whether “[t]he defendant committed the offense in an especially
heinous, cruel or depraved manner” as an aggravating circumstance in
determining whether to impose a death sentence. This Court has held that
“[t]he (F)(6) aggravator is facially vague but may be remedied with
appropriate narrowing instructions.” And we have approved of “especially cruel” instructions that require the jury to find two essential narrowing factors: “the victim was
conscious during the mental anguish or physical pain” and “the defendant
knew or should have known that the victim would suffer.” 
The Supreme Court's full 36-page Opinion, written by Justice Clint Bolick, is below, and further descriptions of the case can be found in this series of Phoenix New Times articles from 2013.

Tuesday, August 6, 2019

NEW: 9th Circuit Rejects Gov. Ducey Argument, Expedites Appeal Re: Special Election For McCain Senate Seat

The 9th Circuit rejected Doug Ducey's arguments late last week and ordered that the appeal challenging the Arizona Governor's control of the U.S. Senate seat previously held by John McCain be expedited. Nonetheless, oral argument on the demand for a special election will not be held before November.

AZ Law has been reporting on the twists and turns since the case was filed last November - several months after McCain passed away and the Governor had tapped former Senator Jon Kyl to (temporarily) fill the position. The passage of time has not been the friend of the plaintiffs who claim that the Senate succession law - passed by the Arizona Legislature during McCain's battle with glioblastoma - is unconstitutional.

Indeed, Ducey's attorneys explained to the 9th Circuit that expediting the appeal would not save much time and that we are already getting too close to the November 2020 special election to decide who will serve the last two years of McCain's term. After Kyl stepped down in December, Ducey appointed Martha McSally to serve for 2019 and 2020; McSally is running to serve out the following two years.

The Governor's opposition, submitted by the two outside law firms representing his office in this matter, states: "Simply, expediting briefing by approximately one month does not change the practical reality that Appellants are asking this Court to order a special statewide election that might advance the date to select the person to complete Senator McCain’s term by a few months, at most." It also echoes pointed comments from the District Court Judge that Plaintiffs' attorneys created some of the delays. (The Judge took a few months to rule that the new Arizona law did not violate the U.S. Constitution.)

The three-judge panel - two of whom are from Arizona - rejected the Governor's response without explanation. The initial appellate brief will be due on August 28, and the court is looking to set the expedited oral argument in November.




Monday, July 29, 2019

UPDATE: Senate Confirms Michael Liburdi For Arizona U.S. District Court Judgeship

UPDATE, 7/30, 9:15am: The Senate just voted, 53-37, to confirm Liburdi as the newest U.S. District Court Judge for the District of Arizona. Both Arizona Senators - Republican Martha McSally and Democrat Kyrsten Sinema - voted to confirm. 
(Thanks to the Judicial Nominations Blog.)

UPDATE, 4:05pm: The Senate voted 51-37 to invoke cloture on Liburdi's nomination. Both of Arizona's Senators - Republican Martha McSally and Democrat Kyrsten Sinema - voted "aye". (Sinema can be seen on the floor as the vote was announced, in the picture below. The confirmation vote is expected by Wednesday.


The Senate will vote this hour on whether to proceed to a confirmation vote on President Donald Trump's nomination of Michael Liburdi to become a District Court Judge in Phoenix. Today's cloture motion is expected to pass.

AZ Law* has been following the confirmation process since Governor Ducey's former General Counsel was nominated for the lifetime judicial position in January. And, while the six months may seem like a long confirmation period - the Judiciary Committee approved him in March - close watchers of the process indicate that this is not a stretched-out nomination.

Both Arizona Senators have spoken in favor of confirming Liburdi, which makes his confirmation even more likely in the Republican-controlled Senate. However, his previous work on behalf of the Republican party and the Arizona Right to Life PAC (Chairman) may prevent him from getting many Democratic votes.

The final confirmation vote will likely take place tomorrow or Wednesday.


*Through our older sister website, Arizona's Politics.

Wednesday, July 10, 2019

"AZ Law" Installment #4, On-Demand July 8, 2019

In this on-demand installment, hear original reporting, articles about Arizona court cases and a commentary about legal intimidation of aid workers in southern Arizona.

On the audio menu for this post-holiday week are updates on the heavyweight battle between Arizona's Attorney General and the state's universities, Bad Braille, and court action on the special election to replace the late-Sen. McCain. Listen until the end to hear an article on why Arizona can't execute a Mexican immigrant, and a commentary alleging Arizona's new U.S. Attorney with trying to intimidate aid workers on the southern border.

"AZ Law" includes articles and updates about opinions from the Arizona Supreme Court, U.S. District Court, etc. Our next broadcast installment will be on Sun Sounds of Arizona at 11:00a.m., on Saturday, July 20.

More on the cases and legal news can be found at ArizonasLaw.org.

Aired 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. You can donate or listen here.


Have an idea for a report on AZ Law, or suggestions on how to make the program/website better? Please email us at Paul.Weich.AZLaw@gmail.com.

Thursday, June 27, 2019

BREAKING: Judge Dismisses Effort To Accelerate Special Election For Arizona's U.S. Senate Seat (READ decision)

The Special Election to fill the rest of the late-Senator John McCain's 6-year term will not be moved up from next November. A federal judge today dismissed a lawsuit challenging the constitutionality of the Arizona laws that have permitted Governor Doug Ducey to appoint replacements for a period of nearly 2 1/2 years.

An appeal of U.S. District Court Judge Diane Humetewa's decision has, in effect, already been filed. As AZ Law reported last week, plaintiffs appealed the "effective denial" by failing to rule promptly - a theory fiercely contested by Governor Ducey's outside counsel. This week, the Ninth Circuit gave the sides until Monday, July 1, to explain whether an appealable order was in place and whether the appeal should be expedited.

Although plaintiffs' counsel has not yet responded to AZ Law's requests, it would seem likely that today's dismissal be immediately appealed in the already-open matter.

Judge Humetewa scolded plaintiffs' counsel for its efforts to nudge the Court into issuing a ruling. In a footnote, the judge noted that many of the delays in moving the case forward had been because of counsel's earlier scheduling conflicts.

As to the substance, the Judge agreed with the Governor's arguments that the cost of a special election and maximizing voter turnout are important State interests that help justify Arizona's special election statute. She addressed the 27-month period:
"Because Senator McCain died just days before the scheduled 2018 primary election,
over two years will pass before the voters have a chance to fill the seat by election. While this period may not be a short period of time, nothing in the Seventeenth Amendment limits the period of time an appointed senator can be in office. The 27-month period, on its own, is not unreasonable considering case precedent, and does not amount to an unreasonable restriction on Plaintiffs’ right to vote. Because there is no unreasonable restriction on Plaintiffs’ right to vote, Plaintiffs cannot establish a violation of their Constitutional rights and therefore, Count One will be dismissed." 
Chandler attorney Tom Ryan was not involved in the case, but has vocally opposed the law. He tells AZ Law:
The Arizona GOP was well-aware of Sen. McCain’s dire diagnosis and changed Title 16 to give Gov. Ducey the right to play around with a Senate appointment. This change has effectively deprived Arizona voters a say in many national issues including important appointments to the U.S. Supreme Court and other spots on the Federal bench.
The law was changed by the Governor and the Republican-controlled legislature in early 2018, and went into effect mere weeks before Sen. McCain's passing.

The rest of the 25-page decision is presented below.

Monday, June 24, 2019

U.S. Supreme Court Takes Step Toward Approving Arizona's Major Tax Case Against California (UPDATE)

The U.S. Supreme Court invited the federal government to weigh in on Arizona Attorney General Mark Brnovich's proposed lawsuit against the state of California for stealing millions of dollars in tax revenues from Arizona (and other states).

Arizona filed the case at the end of February. After receiving extra time, California told the Supreme Court in May why the case should not go. After conferencing last week, the Justices today entered a one sentence order stating simply "The Solicitor General is invited to file a brief in this case expressing the views of the United States."

The invitation is a small sign that Arizona's action has some merit. Katie Conner, Spokesperson for the Arizona Attorney General’s Office, agreed: "We are pleased the Supreme Court is taking Arizona's claims seriously and look forward to coordinating with the U.S. Solicitor General.”

As reported earlier on AZ Law, Brnovich's office has already coordinated with various groups and individuals to support the suit. Four friend of court briefs have already been filed supporting Arizona by the Cato Institute, the National Federation of Independent Business, and others.

The proposed complaint alleges that California unconstitutionally taxes Arizona LLCs for doing business in California - even if that LLC is only an investor in another company that does business in the Golden State. The U.S. Constitution (Article III, Section 2) makes the Supreme Court the initial - and, only - court when one state is suing another.

Arizona cites examples of California taxing Arizona LLCs, and even trying to levy against Arizona banks to collect the taxes. Arizona estimates that California's "extraordinarily aggressive" policies of costing Arizona nearly $500,000/year in lost tax revenues (because those businesses pay California and deduct it from their Arizona taxes). Arizona would also seek refunds to the more 13,000 Arizona LLCs that pay more than $10M/year to California. (And yes, Arizona believes other states - and, their LLCs - have been similarly effected.)

(Phoenix attorney Paul Weich contributed this article.)

Saturday, June 22, 2019

"AZ Law" Installment #3, On-Demand June 22, 2019

In this on-demand installment, hear: (1) original reporting on the lawsuit demanding a sooner special election to fill the late John McCain's Senate seat; (2) the Arizona Supreme Court opinion on hashish and the Arizona Medical Marijuana Act; and (3) a column about an Arizona Court of Appeals 1st Amendment decision slamming a (different) County Attorney.

"AZ Law" includes articles and updates about opinions from the Arizona Supreme Court, U.S. District Court, etc.

More on these cases and news can be found at ArizonasLaw.org.

Aired 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. You can donate or listen here.

Thursday, June 20, 2019

"AZ Law" Installment #2, Aired June 15, 2019

"AZ Law" Installment #1: Aired May 18, 2019

BREAKING: Appeal Filed On Non-Decision To Force Earlier Special Election For Arizona's Senate Seat

An appeal was filed tonight in the constitutional challenge to Arizona Governor Doug Ducey's ability to control the late Senator John McCain's seat until November 2020. There has not been a decision by Judge Diane Humetewa, but plaintiffs call it an "effective denial" of their challenge.

Oral arguments were held on April 12, and was taken under advisement at that time. Today's appeal notice follows an unusual round of letters and responses filed last week, as the plaintiffs have grown impatient.

AZ Law and Arizona's Politics have previously reported on the constitutional challenge to the Arizona vacancy law. At that point, Sen. Jon Kyl was serving at the Governor's request. Kyl then resigned, permitting Ducey to appoint Martha McSally to the seat until a special election would be held in 2020 to fill the last two years. Sen. McCain passed away on August 25, 2018.

The Arizona plaintiffs challenge the constitutionality of the vacancy law, and say the election must be held as quickly as possible.

This round of out of the ordinary filings began last week, when Judge Humetewa entered an order (below) noting that she had received a letter from plaintiffs' counsel that she would not consider.
Plaintiffs filed a Motion for a Status Conference later that day as a way of further nudging the judge, and Governor Ducey's attorneys promptly opposed it. The judge has not taken any action on the motion or the underlying issue in the subsequent week. That apparently prompted today's appeal of an "effective denial".

Plaintiffs cite a 9th Circuit opinion from 1992 that involved a well-known Arizona case - the Sierra Club's battle against the University of Arizona regarding the nearly-extinct Mt. Graham Red Squirrel. In that case, the appellate judges did express "dismay" over the trial judge's failure to schedule a hearing on a motion for an injunction.

(This article written by Phoenix attorney Paul Weich.)



Friday, June 14, 2019

FIRST PROGRAM: AZ Law Debuts Tomorrow, 11am, On Sun Sounds of Arizona

"AZ Law", our new program on Sun Sounds of Arizona, will be broadcast Saturday, June 15, at 11am. It will feature articles about Arizona court cases in both the state and federal courts.

Tomorrow's episode will include articles about the Arizona Supreme Court's decision on medical marijuana, the special election regarding Arizona's Senate seat previously held by the late John McCain, and updates on other pending cases.

Sun Sounds is a reading service for individuals who have difficulty reading print because of a disability. It is available statewide through special radios, on HD Radios, and online at SunSounds.org.

Sun Sounds is a nonprofit that is part of the Rio Salado Community College public radio family, including KJZZ and KBAQ. 

NEW: October Trial Date Set For Valley Teen Facing Terrorism, Assault Charges; New Documents Released

An October 14 trial has been set for the terrorism and assault charges against 18-year old Ismail Hamed. Maricopa County Superior Court Judge Sally Schneider Duncan also ordered the release of more documents from the Maricopa County Sheriff's Office investigation; those previously-sealed reams of documents were released this afternoon.

Hamed is charged with assisting ISIS by spreading its propaganda. On January 7, 2019, he allegedly called 911 and swore allegiance to ISIS. He followed this by pulling a knife on an MCSO sergeant and hitting him with rocks. During the confrontation, Hamed was shot twice after following the sergeant back to the patrol truck.

The newly released documents include the grand jury indictment, search warrants, and the incident report including copies of text messages between Hamed and a friend discussing ISIS-supportive videos (and more).

The October trial date was set at a pretrial conference held on Tuesday.

Tuesday, May 28, 2019

BREAKING, READ OPINION: Arizona Supreme Court Unanimously Rules Hashish and Resins ARE Covered By Medical Marijuana Law

In a unanimous 7-0 opinion today, the Arizona Supreme Court ruled that hashish and other resin-based products ARE covered by Arizona's medical marijuana law. The ruling smoked all of Yavapai County's arguments that the conviction and sentence they against Rodney Jones should not be reversed.


Tuesday, May 14, 2019

BREAKING: Joe Arpaio Asks Court To Sanction Democratic Representatives For "Bogus" Brief Re: Trump Pardon (READ the pleadings)

Former Sheriff Joe Arpaio is accusing a group of Democratic Congress members of filing a "sham" pleading, and has asked 9th Circuit judges to sanction the Representatives. The 17 members of Congress filed an amicus brief opposing Arpaio's effort to use his Presidential pardon to wipe out his criminal conviction for contempt of court.

The U.S. Supreme Court declined to hear the long-time Maricopa County Sheriff's request to remove a special prosecutor appointed by the court to argue that Donald Trump's 2017 pardon of friend/supporter Arpaio should not erase the trial judge's findings. The Representatives filed their "friend of the court" brief to also support that argument.

The amicus brief argues that the judicial branch has the right to protect its right to impose criminal contempt of court penalties as a form of "self-protection", noting that Congress has similar rights. It notes that a Presidential pardon is only appropriate in a contempt of court situation if the penalty was "too harsh" or was an "evident mistake".

Arpaio attempts to argue that the Representatives and their attorneys knew or should have known that the President's power to pardon is absolute and that neither Congress nor the Judiciary can interfere with it.

Both briefs cite Supreme Court cases going back to the mid-1800s as part of their legitimate arguments. However, Arpaio believes that the Representatives' amicus brief is so "frivolous" that it warrants a rare imposition of sanctions. (It would be even more rare against the filers of an amicus brief.)

The pardon appeal itself is being handled by Arizona attorneys Dennis and Jack Wilenchik and Mark Goldman. However, for this latest go-for-sanctions move, Arpaio has enlisted the nationally-known Larry Klayman to pursue the members of Congress. Klayman is also handling Arpaio's defamation claims against the New York Times, CNN and other media outlets, which are currently awaiting rulings on multiple motions to dismiss.

Arizona Reps. Raul Grijalva and Ruben Gallego are among the two dozen Representatives who signed on to the amicus brief. We have requested reaction and will supplement as needed.

Here are the relevant pleadings from both the Congressional amici and Arpaio. You are encouraged to join the discussion in the comments below.






Monday, April 29, 2019

NEW: U.S. Supreme Court Rebuffs Arpaio Effort To Remove Special Prosecutor, Attorney Faults 9th Circuit

The U.S. Supreme Court today declined to hear former Maricopa County Sheriff Joe Arpaio's request to remove a special prosecutor in his ongoing battle. One of Arpaio's attorneys tells Arizona's Politics/Arizona's Law* that the 9 Justices "just (don't) have enough time to correct all of the Ninth Circuit's mistakes."
Arpaio is fighting to vacate his criminal conviction for contempt of court in the long-running Melendres case regarding racial profiling. After President Donald Trump pardoned Arpaio in 2017, the President's Justice Department declined to fight Arpaio's attempt to vacate the contempt conviction. The court has assigned an independent attorney to step in and argue that the pardon does not erase the conviction.

As Arpaio counsel Jack Wilenchik tells Arizona's Law/Arizona's Politics, the appeal - currently in the 9th Circuit - will continue despite the adverse decision from the Supreme Court.
"The Supreme Court just doesn’t have enough time to correct all of the Ninth Circuit’s mistakes. Appeal goes forward as normal except that the USA now has two sets of prosecutors who don’t agree with each other because the Ninth Circuit ordered that it be so."
The Ninth Circuit appeal was on hold until the U.S. Solicitor General informed the court in January that the government would not appeal the decision. The briefing schedule continued despite the former Sheriff's decision to ask the Supreme Court to get involved. Last week, both the Special Prosecutor and the Department of Justice filed their answering briefs with the Ninth Circuit, and Arpaio's Reply is due later in May.


*Arizona's Politics and Arizona's Law are sister publications. In situations such as this, there is overlap.

Tuesday, April 23, 2019

ARIZONA'S LEGAL SHORTS: Oral Argument Today On Case To Force Earlier Special Election For Senate Seat

(Initially reported on April 12.)

Attorneys will argue in U.S District Court this afternoon about whether the Arizona law permitting Governor Doug Ducey to control the late-Senator John McCain's seat until November 2020.

Arizona's Poltics previously reported on the constitutional challenge to the vacancy law. At that point, Sen. Jon Kyl was serving at the Governor's request. Kyl then resigned, permitting Ducey to appoint Martha McSally to the seat until a special election would be held in 2020 to fill the last two years.

The Arizona plaintiffs challenge the constitutionality of the Arizona vacancy law, and say the election must be held as quickly as possible.

The 45 minutes of oral argument will address both the plaintiffs' motion for an injunction ordering a speedier election and Ducey's motion to dismiss the case. The Governor's Office has hired two top Phoenix law firms to represent him - Brett Johnson/Andrew Sniegowski/Colin Ahler from Snell & Wilmer, and judicial nominee Michael Liburdi from Greenberg Traurig.

The Plaintiffs will be represented by Michael Kielsky from Udall Shumway and Chicago attorney Michael Persoon.

Judge Diane Humetewa is handling the case.




NEW: Goodyear Firefighter's Workers' Comp Claim For Leukemia Should Be Re-heard, Says Arizona Supreme Court (READ Opinion)

A Goodyear firefighter  now battling a rare leukemia may continue fighting for his workers' compensation claim, according to a unanimous...