Tuesday, January 21, 2020

LISTEN: "AZ Law's" Jan. 18 Broadcast - Interview With Supreme Court Chief Justice, Band of Brothers, AG Sues Vaping Companies, More

In this installment of "AZ Law", we feature our interview with Arizona Supreme Court Chief Justice Robert Brutinel, along with articles from AZ Law, KJZZ, the Arizona Daily Star and Capitol Media Services.
In the interview, Chief Justice Brutinel addresses the "perfect storm" of factors that led the Arizona Supreme Court to set two new records during the past month. He also addresses his priorities for 2020, including mental health and bail reform.
Here is the article listing:
  1. Interview with Chief Justice Robert Brutinel (Weich, AZ Law)
  2. Band of Brothers: Fmr AZ AG's Side With Brnovich In (Part Of) His Battle With Board of Regents (Weich, AZ Law)
  3. Attorney General Files Suit Against Vaping Companies (Fischer, Capitol Media Services)
  4. TUSD Seeks End of Court Oversight In Decades-Old Desegregation Cast (Khmara, Star)
  5. Ruling Expected Soon In Pinal Transportation Tax Case (Jenkins, KJZZ)

"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.
More on these cases and other legal news can be found at ArizonasLaw.org.
AZ Law also 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.
Thanks for listening, and your input is appreciated - Paul.Weich.AZlaw@gmail.com.

READ: AZ AG Brnovich's Special Action Complaint To Overturn Sky Harbor Rideshare Fee

Attorney General Mark Brnovich announced tonight that his office has filed a Special Action petition with the Arizona Supreme Court to overturn the rideshare fee passed by the City of Phoenix for Sky Harbor Airport passengers.
The Attorney General's Office had announced its intention last Thursday, after completing an investigation requested by Rep. Nancy Barto (R-LD15).

Here is the Special Action filed with the Arizona Supreme Court:
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Friday, January 17, 2020

BAND OF BROTHERS: Fmr AZ AG's Side With Brnovich In (Part Of) His Battle With Board of Regents

Four of Arizona's former Attorneys General have banded together to support current AG Mark Brnovich in part of his battle with the state's public universities; they have urged the Arizona Supreme Court to allow the AG to challenge the constitutionality of tuition increases over the past several years.

The Supreme Court is trying to decide whether to accept the AG's appeal, and last week continued its deliberations.

Initiated by former AG Terry Goddard, the amicus brief (posted below) argues that if the Justices do not overrule a 60-year old precedent (McFate) and permit the AG to challenge the Arizona Board of Regents, then the state constitution's "requirement that public university education 'shall be as nearly free as possible' could be rendered meaningless, or, at the least, unenforced and ignored."


In addition to Goddard, the brief is signed by former AG's Tom Horne, Bob Corbin and Jack LaSota. The only two living Arizona AG's who did not sign on are Grant Woods and Janet Napolitano.

The unprecedented effort came about after Goddard spoke about the challenge on KJZZ last August, and then published an opinion piece in the Arizona Republic. According to Brnovich spokesman Ryan Anderson, "it all just kind of came together." He added that "people know each other socially and after the Goddard/KJZZ appearance and the follow up op-ed, former AG's started talking about lending their public support to the effort to overturn McFate. When we first came into office, I recall speaking with former staff that this was something Horne thought needed to be addressed."


Under Arizona's Constitution, the Governor appoints the members of the Board of Regents. Current Governor Doug Ducey declined to support this current action against the Board. Anderson noted that former Governor Jan Brewer agreed to become the plaintiff in a Horne-brought suit against the Maricopa Community College District (regarding in-state tuition for DACA students), which removed the district's argument that the AG could not bring the suit.

It was in 1960 that the Arizona Supreme Court decided that the Attorney General could not challenge the State Land Commissioner (while commending the AG for "his vigilance and public spiritedness".

The current Arizona Supreme Court will again consider the former Attorneys General support of their current brother on February 11.

"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.

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

AZ Law also 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.

Saturday, January 11, 2020

LISTEN: "AZ Law's" Jan. 10 Installment - Supreme Court Sets Records, Fast and Furious Verdict, Much More

In this 20th installment of "AZ Law", we feature articles from several sources. Original reporting, along with articles from the AP, Capitol Media Services, the Arizona Daily Star and Arizona Republic.

Here is a listing:
  1. Arizona Supreme Court Sets Records In 2019 (Weich, "AZ Law)
  2. The passing of former Chief Justice Gordon  (Davenport, AP)
  3. A life term in the Fast and Furious murder of a Border Patrol agent (Galvan, AP)
  4. Secretary/State cuts deal helping keep your voter registration updated (Fischer, Cap. Media)
  5. U.S. joins copper mining company appealing Rosemont Mine decision (Davis, Star)
  6. No release of prosecutor Martinez's sexual harassment investigation records (Castle, Republic)
  7. SCOA won't take Tempe Town Lake squatter case (Ruelas, Republic)
"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.


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

AZ Law also 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.

Thanks for listening, and your input is appreciated - Paul.Weich.AZlaw@gmail.com.


Thursday, January 2, 2020

EXCLUSIVE: "The Perfect Storm" - Expanded Arizona Supreme Court Sets Two Records In 2019

The Arizona Supreme Court set two new records in 2019, and Chief Justice Robert Brutinel notes that it was the "perfect storm". He says 2020 will show a noticeable increase in the number of opinions from the expanded court.

The Supreme Court's 26 opinions in 2019 are the fewest issued by Arizona's highest court in modern times* Also, the 7 justices have not issued an opinion since the Brush & Nib opinion attracted national attention on September 16; never* has the Supreme Court gone this long without releasing an opinion.**

Brutinel tells AZ Law that it is "a funny set of circumstances" that led to fewer opinions being issued. Among the confluence of events was the departures of Chief Justice Scott Bales and Justice John Pelander, the resulting appointment of two new justices "who really want the first ones to be good" and naming of a new Chief Justice and Vice Chief Justice. In addition, a "minor factor" may have also been the difficulty and 110- page length of the Brush & Nib opinion. (James Beene and Bill Montgomery are the two new Justices.)

"We'll get back into a regular rhythm as people get a little more experienced," the new Chief Justice explained. "The reality is we're trying to take more cases, (we are) a group of people that wants to work hard - they're here to write opinions."

Brutinel notes that the seven justices have been discussing ways to produce a higher output in 2020. However, he notes that "part of it is not in our control. I would argue we take all the cases we ought to be taking."

A couple of the ideas they have discussed involve the intermediate Courts of Appeals. A "more robust" transfer policy would see the Supreme Court accepting cases directly appealed from the trial court. That recently happened in the appeal by Payson Mayor Tom Morrissey; although it was an elections-related case, it could have first been heard in the Court of Appeals. The Supreme Court took the case and issued an order, although the written opinion will be released later this year.

Brutinel also tells AZ Law that the Court of Appeals judges do a very good job, and "we've never taken cases just to tell the Court of Appeals that they're right - but we may start doing that." (Like the U.S. Supreme Court, the Arizona Supreme Court is not required to accept all appeals from the intermediate level; rather, it considers which cases need to be accepted.

He notes that there are 17 cases already in the pipeline, and predicts that the Court will issue "around 70" opinions in the coming year. That would set a modern record for the MOST opinions issued in a year, and more than double the average output over the past 15 years.

The modern records come against the backdrop of Governor Doug Ducey and the state Legislature deciding to expand the size of the Supreme Court bench in 2016, from five to seven justices. One of the Governor's key stated reasons for expanding over the objections of then-Chief Justice Bales was that the Court would be able to issue more opinions.

In a letter justifying the legislation, Ducey stated "Arizonans deserve swift justice from the judicial branch. Adding more voices will ensure that the court can increase efficiency, hear more cases and issue more opinions."

Ducey also suggested that the additional justices would allow for "more certainty" for the parties to the litigation. Brutinel explains to AZ Law that while he has nothing bad to say about the court's expansion, more opinions does not necessarily lead to more certainty in the law. Rather, having Supreme Court opinions that are unanimous (or, nearly so) lead to more certainty because it would be harder for them to be overturned. (Perhaps the Governor meant to refer to "finality"?)

When the Governor appointed three new Justices in 2017, 43 opinions were issued and there was no gap of more than one month between opinions.

The Governor's Office declined to respond to AZ Law's requests for comment.

(AZ Law's interview with Chief Justice Brutinel will be presented next week as part of our program for Sun Sounds of Arizona. AZ Law is broadcast at 11:00a.m. on the 3rd Saturday of each month, and other installments are available on-demand. Sun Sounds is a non-profit reading service for persons with disabilities which make it difficult to hold or read printed materials; it is a public service provided by Rio Salado Community College, along with KJZZ and KBAQ. Learn more here, and donate here.)

*The Court's website lists all of its opinions chronologically from 1998 to the present. Given the court's known penchant in earlier times for issuing more frequent - and, shorter - opinions, it is likely that the 2019 records would stand the test of earlier times, as well.

**Only once in the past 22 years has the Court gone more than three months without issuing an opinion. That was in the autumn of 2011 - 102 days. Only two other times were there a waiting period of more than two months between opinions (2012). 


Monday, December 23, 2019

LISTEN: "AZ Law's" December 21 Installment - Death Penalty, Initiatives, Much More

In this installment of "AZ Law", we feature articles and commentaries regarding several cases in the Supreme Courts - both Arizona and U.S. Most of the news is regarding murders/death penalty or election-related cases. 
"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.
More on these cases and other legal news can be found at ArizonasLaw.org.
AZ Law also 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.
Thanks for listening, and your input is appreciated - Paul.Weich.AZlaw@gmail.com.

Thursday, December 19, 2019

UPDATE: Arizona Attacks U.S. Solicitor General's Dissing Of Tax Case Vs. California, "Simply Duck(s) What It Cannot Defend"

Arizona quickly answered the U.S. Solicitor General's brief opposing the state's lawsuit against California. Arizona accuses its neighbor of stealing some $10.5M from Arizona and its LLCs each year.

The Response was filed tonight, just 10 days after the Solicitor General told the U.S. Supreme Court that it should not accept Arizona's case. "AZ Law" wrote then that it is "very unusual" for the Supreme Court Justices to ask for an opinion from the Solicitor General and then to not follow it.

But, Arizona claps back in its 12 1/2 page brief, saying that the SG is "simply ducking what it cannot defend" in California's actions and Arizona's right to pursue a remedy in the highest court. (The Supreme Court is not required to accept Arizona's case.)

As an example of this, Arizona's Response notes that the SG "correctly observes" that the model for the Supreme Court accepting this type of case between two states is if the alleged unconstitutional behavior is akin to an act that would cause a war (Latin = "casus belli").
But despite the acknowledged centrality of this standard, the SG Brief notably refuses to offer any analysis under it. And that standard makes this action a “model case” for accepting jurisdiction. 
Arizona specifically argued that “[t]he federal government would never tolerate equivalent conduct by other nations—something California does not meaningfully dispute.” The SG Brief notably does not dispute this point either. And for
good reason: If China or Venezuela imposed an illegal head tax on all U.S. citizens of
Chinese/Venezuelan descent and then enforced the tax by coercing U.S. banks into transferring U.S.-based deposits to them, the United States would hardly stand idly by. Instead it quite properly would regard such conduct as a casus belli precipitating an
international incident. 
For more information and to review Arizona's initial filing, please see our initial article. To review the Solicitor General's Brief, please see our most recent article on the case.

It is currently unclear when the Supreme Court will reach a decision on whether or not to accept Arizona's case.
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Wednesday, December 18, 2019

NEW: 9th Circuit Stands By Earlier Decision Giving Arizona Death Row Inmate A New Sentencing; Defense Attorney Messed Up

An inmate on Arizona's death row should receive a new sentencing hearing because his defense counsel did not properly present possible mitigating factors. That was the decision earlier this year by a 9th Circuit panel, and the full 9th Circuit bench today declined to reconsider the opinion.

George Kayer filed a habeas corpus petition with the federal courts after the Arizona Supreme Court reviewed and upheld the death sentence. The District Court denied Kayer's petition, but a split appeals panel reversed. Arizona asked the full court to hear the case, but the request for en banc only garnered 12 votes, short of the necessary majority.

Kayer killed his friend, Delbert Haas, in the desert in order to rob him. His girlfriend turned him in to security at a Las Vegas hotel several days later. 

His trial attorneys did minimal and last-minute work developing Kayer's mental illness history. The trial judge did not believe that that prejudiced the defendant in the sentencing phase, but the 9th Circuit found that that was "objectively unreasonable".

"Counsels’ failure to prepare for the penalty phase hearing was egregious, and the mitigation evidence presented at the hearing was pathetically inadequate. We also held that the no-prejudice decision by the state PCR judge was an objectively unreasonable decision within the meaning of AEDPA."

No word yet on whether the Attorney General's Office will appeal the decision to the U.S. Supreme Court or will move forward with the re-sentencing.

*****
"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.

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

AZ Law also 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.

Friday, December 13, 2019

ARIZONA'S LEGAL SHORTS: An LA Times Explainer On History, Changing Makeup Of The Ninth-No-Longer-"Nutty" Circuit

The Los Angeles Times has an interesting explainer on how the Ninth Circuit of the U.S. Court of Appeals got its liberal reputation, and the changing makeup of the court. (President Carter appointed 15 judges, President Trump now has confirmed 8*.)

Here's a key section:
That was a long time ago. Is the “nutty 9th” reputation still true?
Not for a while. The court still leans liberal, but without the fervency of its past.
Feuer posits that this is, at least in part, due to a general trend of the judges appointed by Democratic presidents shifting more toward the center over the last few administrations, while Republicans have continued to appoint judges who are consistently, if not increasingly, conservative. And the Carter-era liberal lions are no longer on the court.
But even with all that said, the makeup of the court has still changed drastically during the Trump years.
As recently as April 2017, judges appointed by Democratic presidents outnumbered Republican appointees on the court by about 2 to 1 (that number probably also includes semi-retired senior-status judges). The court is now edging toward a more even split, with a ratio of 16 Democrat-appointed active judges to 13 Republican-appointed ones.
It is worth noting that Arizona's Republican politicians have become much quieter about splitting up the Ninth Circuit. Senator McSally (R-AZ) is a co-sponsor of one bill in the Senate, and Rep. Andy Biggs (R-CD5) is the sponsor in the House (Gosar is a co-sponsor).  However, none of the bills in the current Congress (House and Senate) have received a hearing.

*One of those eight new Judges is Arizona's Hon. Bridget Bade.
*****

"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.

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

AZ Law also 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.

LISTEN: Special Presentation - U.S. Supreme Court Oral Arguments, McKinney v. Arizona

In this special, "AZ Law" presents this week's oral arguments before the U.S. Supreme Court in the McKinney v. Arizona case.

We have written about this interesting death penalty case before. In Wednesday's oral arguments, former Acting Solicitor General Neal Katyal argued on behalf of convicted murderer James McKinney. Arizona's Solicitor General, O.H. Skinner, argued for the State of Arizona.



Here is how the Court describes the facts of the case and the questions presented:

Facts of the case

By way of relevant background, James McKinney’s childhood was “horrific” due to poverty, physical and emotional abuse—all detailed in the court filings. Around age 11, he began drinking alcohol and smoking marijuana, and he dropped out of school in the seventh grade. He repeatedly tried to run away from home and was placed in juvenile detention.
In 1991, when McKinney was 23, he and his half-brother Michael Hedlund committed two burglaries that resulted in two deaths. The state of Arizona tried McKinney and Hedlund before dual juries. McKinney’s jury found him guilty of two counts of first-degree murder (without specifying whether it reached that verdict by finding premeditation or by finding felony murder), and Hedlund’s jury found him guilty of one count of first-degree murder and one count of second-degree murder.
At McKinney’s capital sentencing hearing (before a judge), a psychologist testified that he had diagnosed McKinney with PTSD “resulting from the horrific childhood McKinney had suffered.” The psychologist further testified that witnessing violence could trigger McKinney’s childhood trauma and produce “diminished capacity.” The trial judge credited the psychologist’s testimony, but under Arizona law at the time, the judge was prohibited from considering non-statutory mitigating evidence that the judge found to be unconnected to the crime. Because McKinney’s PTSD was not connected to the burglaries, the judge could not consider it mitigating evidence and thus sentenced him to death.
The Arizona Supreme Court affirmed McKinney’s death sentence on appeal. In 2003, McKinney filed a habeas petition in federal court. The district court denied relief, and a panel of the Ninth Circuit affirmed. The Ninth Circuit granted rehearing en banc and held that the Arizona courts had violated the U.S. Supreme Court’s decision in Eddings v. Oklahoma, 455 U.S. 104 (1982), by refusing to consider McKinney’s PTSD. In Eddings, the Court held that a sentencer in a death penalty case may not refuse consider any relevant mitigating evidence. A violation of Eddings, the Ninth Circuit held, required resentencing. Thus, the Ninth Circuit remanded to the federal district court to either correct the constitutional error or vacate the sentence and impose a lesser sentence. Arizona moved for independent review of McKinney’s sentence by the Arizona Supreme Court; McKinney opposed the motion on the ground that he was entitled to resentencing by a jury under the U.S. Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002), which held that juries, rather than judges, must make the findings necessary to impose the death penalty. The Arizona Supreme Court disagreed, finding that McKinney was not entitled to resentencing by a jury because his case was ‘final’ before the U.S. Supreme Court issued its decision in Ring.

Question

  1. Was the Arizona Supreme Court required to apply current law, rather than the law as it existed at the time a defendant’s conviction became final, when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted?
  2. Does the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), require resentencing?
*****

"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.

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

AZ Law also 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.

LISTEN: "AZ Law's" Jan. 18 Broadcast - Interview With Supreme Court Chief Justice, Band of Brothers, AG Sues Vaping Companies, More

In this installment of "AZ Law", we feature our interview with Arizona Supreme Court Chief Justice Robert Brutinel, along with ar...