BREAKING: 9th Circuit Says Holding Arizona In Contempt For Healthcare In Prisons Is Valid, Maintains $1.45M Fine (READ Opinion)

The contempt order against the state of Arizona for failing to meet healthcare standards in state prisons is valid, the Ninth Circuit Court of Appeals ruled today. The unanimous panel also upheld the $1,445,000 fine imposed on the state in 2018, and said the District Court Judge's reasoning for the $1,000/violation standard was valid.

The 55-page opinion (below) handled three other appeals by the parties in the long-running class action case. The 9th Circuit made some determinations that will slightly reduce the amount of

attorney's fees that the State owes to the Plaintiffs' attorneys - the District Court Judge had awarded $1.3M in fees.

The panel also ruled against the state in its appeals about continued monitoring requirements.

Arizona argued that the District Court Judge lacked the power to issue the civil contempt judgment. that the State had not been afforded due process, that the amount of the sanctions was excessive, and that the judge had improperly added reporting requirements regarding the violations.

The court disagreed:

Here, the “character” of the sanction was primarily coercive. The district court explicitly stated that the purpose of holding Defendants in contempt was to “compel compliance” because the “mere threat of monetary sanctions” in the Order to Show Cause was “not sufficient.” Moreover, the district court utilized the paradigmatic coercive contempt sanction of prospective, conditional fines outlined in the Order to Show Cause and ordered Defendants to continue filing monthly reports regarding their compliance.

The judges say that the sanctions are also compensatory, but that the amount did not become punitive.

The state has already paid out more than $16.2M in legal costs related to this matter, with the largest portion going to the outside counsel representing the state. While the appellate judges remanded the $1.3M award, the changes will not be major.

Arizona blames private contractor Corizon Health for the conditions that brought about the suit, and the Department of Corrections has told lawmakers that Corizon will be held responsible.

Opinion:

"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.

UPDATE: Arizona Asks 9th Circuit To Stay Its "Ballot Harvesting" Ban Decision Pending Appeal To Supreme Court

UPDATE: 1/31, 4:20pm: Noting that ballots for the Presidential Preference Election begin going out in the mail TOMORROW, the Arizona Attorney General's Office has asked the Ninth Circuit to immediately stay its Monday ruling on the "ballot harvesting" ban.

The stay request precedes the Attorney General heading to the U.S. Supreme Court to appeal the 7-4 opinion finding that Arizona's ban on third parties gathering completed ballots violates the Voting Rights Act and the Constitution. The opinion also found that Arizona's policy of "wholly discarding" all ballots cast outside of the voter's precinct discriminates against minorities.

The AG's brief notes that Arizona's law is on much stronger footing than when the Supreme Court last put a stay on it just before the 2016 election day, because of the ballot collection fraud case in North Carolina and the Arizona bench trial that ended in the state's favor.

UPDATE: Arizona Will Appeal To U.S. Supreme Court To Rescue "Ballot Harvesting" Ban
Arizona Attorney General Mark Brnovich wasted no time in announcing that the state will ask the U.S. Supreme Court to restore the so-called ballot harvesting ban. An en banc panel of the Ninth Circuit Court of Appeals ruled yesterday that the 2016 law violated the Voting Rights Act and the Constitution because it had discriminatory intent and impacts.

Brnovich tells "AZ Law" that “It’s surprising the Ninth Circuit took the unusual step of overruling its

own decision from 2018. I have a duty to defend the law. Our office will appeal to the Supreme Court and continue to protect the integrity of our elections.”

The nominal defendant in the case is (now)-Secretary of State Katie Hobbs, and she praised yesterday's ruling. In her statement to "AZ Law", Hobbs called the "victory" one that "facilitates participation in our democracy." She also noted that she had voted against the law as a State Senator in 2016 because "created unnecessary barriers to the ballot box. In its decision, the court considered the lack of any evidence supporting a need for this law. It is my hope that our state does not decide to spend additional taxpayer dollars defending it." (Of course, that "hope" was before she heard the decision from Brnovich.)

So-called ballot harvesting is where groups (generally) visit voters' homes, collect their completed ballots and ensure that they reach the County Elections Department. Arizona banned that practice in 2016, and the dissenting judges noted the case in North Carolina where a Republican operative changed people's ballots before delivering them.

Sen. Michelle Ugenti-Rita (R-LD23) authored Arizona's law, and she had a more succinct reaction when KJZZ asked her about yesterday's decision: "Bull hockey!"

Well-known election law Professor Rick Hasen "strongly suspects" that the Supreme Court will choose to review this decision.

Hasen notes that the Ninth Circuit's reasoning could have further impacts on Arizona election laws, as well: "A finding of intentional discrimination is especially important because it provides a basis for someone to ask Arizona to face preclearance for voting changes under the bail-in provisions of Section 3 of the Voting Rights Act."

In 2013, the U.S. Supreme Court removed Voting Rights Act preclearance requirements for Arizona and some other jurisdictions. The Shelby County decision was by a 5-4 majority.

Hasen explains to "AZ Law", "If Arizona were put back under preclearance, it would not be able to make changes in its voting rules without proving that the changes would not make protected minority voters worse off. This would be significant protection against laws that could unduly burden voting rights."

Professor Hasen's Election Meltdown: Dirty Tricks, Distrust and the Threat To American Democracy hits the bookstores next week.*

* A portion of the proceeds from the purchase of the book through this link will benefit the community outreach programs of Tempe's Temple Emanuel.

"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.

READ: 9th Circuit Throws Out Arizona's "Ballot Harvesting" Ban; Says Law's Intent Was To Discriminate Against Minorities

The 9th Circuit today found that Arizona's so-called ballot harvesting ban, and its policy of "wholly discarding" ballots cast outside the voter's precinct, discriminates against American Indian, Hispanic and African-American voters.

By a 7-4 vote, the en banc panel threw out both, which could significantly impact this year's elections.

The case was brought by the Democratic National Committee, as well as the state's Democratic Party

and others. The Arizona GOP and some Republican officials intervened to join the state in opposing the case.

After a 10-day trial, the District Court judge ruled in favor of the state. A three judge panel at the Ninth Circuit affirmed the case, but plaintiffs convinced a larger panel of appellate judges to reconsider the matter.

So-called ballot harvesting is where groups (generally) visit voters' homes, collect their completed ballots and ensure that they reach the County Elections Department. Arizona banned that practice in 2016.

The majority believes that that ban was enacted "with discriminatory intent", which violates the Voting Rights Act and the Constitution's 15th Amendment. The state tried to show that the lawmakers had acted in good faith, but the judge's had an especially harsh retort.

The good-faith belief of these sincere legislators does not show a lack of discriminatory intent behind H.B. 2023. Rather, it shows that well meaning legislators were used as
“cat’s paws.” Convinced by the false and race-based allegations of fraud, they were used to serve the discriminatory purposes of Senator Shooter, Republican Chair LaFaro, and their allies.

The four dissenting judges charge that the majority went beyond the record from the trial to make their own inferences.

The out of precinct voting portion of the decision may also cause significant changes, particularly in counties that planned to use only precinct-based voting. Several Arizona counties have incorporated "vote centers" - sites where anyone registered in the county can get his or her ballot printed out and tabulated on election day.

The plaintiffs presented evidence showing that Arizona had been throwing out 11 times more ballots for this reason than Washington state (the state with the 2nd most discarded OOP ballots). They also had convinced the trial judge that the discarded OOP ballots were "disproportionately affect(ing) minority voters." The 9th Circuit agreed.

"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 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 AZ Attorney General's Office has submitted a special action with the AZ Supreme Court to overturn the City of Phoenix's unconstitutional Sky Harbor rideshare fee. Additionally, we've asked the Court to stay the Ordinance to stop the fees from going into effect on February 1.

— Mark Brnovich (@GeneralBrnovich) January 21, 2020

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:

*

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.

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.

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).