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.

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

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