BREAKING: 9th Circuit Rules Ducey's Handling Of Late-Sen. McCain's Seat Constitutional, 27 Months Of Appointments Stand

The recent Arizona law allowing Governor Doug Ducey to set the special election to fill the late Senator John McCain's seat 27 months after his passing is not unconstitutional, the Ninth Circuit Court of Appeals ruled today.

McCain died in August 2018, and the Governor has been able to appoint Jon Kyl and Martha McSally to each fill the office until a special election is held in November 2020 to fill the remainder of the term. (So, the winner in November will have to run for re-election in 2022.) Earlier in 2018, the Legislature had passed a law setting up this system.

Today, the Court decided that Arizona's law did not violate either the Seventeenth Amendment of the U.S. Constitution giving states the right to set the election laws for the Senate, nor the U.S. Supreme Court case that had previously found that a 29-month period between the vacancy and the election to fill was not unconstitutional.

Here is the Court's conclusion:

We interpret the Seventeenth Amendment, in light of Valenti and Rodriguez, to confer at least as much temporal discretion upon the States as was exercised by Arizona in
A.R.S. § 16-222 as applied to the vacancy created by Senator McCain’s death. Given this authorization by the Seventeenth Amendment, we further conclude that the vacancy election timing challenged here does not impermissibly burden the right to vote under the First and Fourteenth Amendments. 

AZ Law has reached out to the parties for comment, and will update this article as warranted.

h/t to Eric Spencer at Arizona Election Law for first noting this opinion.

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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.

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BREAKING: 9th Circuit Refuses To Vacate Criminal Contempt Verdict Against Joe Arpaio Because Trump Pardon Came Before Sentencing; Arpaio Sees Victory In Reasoning

Former Sheriff Joe Arpaio's criminal contempt verdict cannot be vacated simply because President Donald Trump pardoned him, the Ninth Circuit Court of Appeals ruled today.  The panel unanimously affirmed the District Court Judge Susan Bolton's decision that the Sheriff appealed;  Arpaio's attorneys are declaring a victory.

Confused? The devil is in the details, and the details are in the wording.

Judge Bolton conducted a five-day trial in July 2017, and ended up " concluding that Arpaio was guilty of criminal contempt of court." She set the sentencing for October.  However, the following month, President Trump pardoned his friend.

Arpaio's attorneys asked that Judge Bolton vacate her finding of guilt. She declined, and the U.S. Department of Justice took the Sheriff's side. The Ninth Circuit appointed an independent attorney to represent the prosecution's usual role, and the Sheriff unsuccessfully appealed that appointment to the U.S. Supreme Court.

The Court today determined that Judge Bolton's ruling stands and that the verdict is not vacated. However, the appellate judges took a "slightly different path" to reach the same decision as Bolton. Noting that the Sheriff's attorneys "clarified" their appeal. The court states that Judge Bolton could have said that Arpaio's challenge to the finding of guilt is moot because the finding cannot be used in the future ("no future preclusive effect").

Arpaio attorney Jack Wilenchik told AZ Law that they will not try to return to the Supreme Court "because we won." He explained that "the Court gave us exactly what we asked for, which is a finding that the guilty verdict is meaningless as a matter of law (it “has no legal consequences”).

Wilenchik acknowledges that the ruling will not necessarily prevent Arpaio opponents from continuing to state that he was found guilty of criminal contempt - even though it doesn't have a preclusive effect. It should, he tells AZ Law, prevent media outlets from writing that Arpaio was "convicted".

Here is what the 9th Circuit judges had to say on that subject:

Though colloquially we refer to the district court’s finding of guilt as a “conviction,” in reality, Arpaio never suffered a final judgment of conviction for criminal contempt. “Final judgment in a criminal case means sentence. The sentence is the judgment.” (citing Berman v. United States). Here, the issuing of a presidential pardon, and Arpaio’s acceptance of the pardon, preempted his sentencing. Thus, there is no final judgment of conviction in this case; instead, there was a final judgment of dismissal with prejudice. This lack of a final judgment of conviction precludes the attachment of “legal consequences,” such as a sentencing enhancement in a subsequent criminal case or claim or issue preclusion in a civil case. 

(AZ Law removed/modified the citations for purposes of clarity.)

Arpaio is running for the Republican nomination to regain his Sheriff's badge in November.

h/t to Phoenix attorney Eric Spencer for first calling our attention to the 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.

NEW: Grand Canyon Whitewater Rafting Accident Prompts Arizona Supreme Court To Set New Test On Whether A Tribal-Related Business Is Entitled To Sovereign Immunity (READ Opinion)

Sara Fox was seriously injured in a whitewater rafting accident in the Grand Canyon four years ago. Today, her case against the Hualapai-owned rafting company was righted by the Arizona Supreme Court. The Court's unanimous opinion also sets up a new test to determine whether a tribal-related business is entitled to sovereign immunity in future legal cases.

Written by Vice Chief Justice Ann Timmer, the 12-page opinion (below) sets forth six factors for judges to consider in determining the immunity question. Those include the business's creation/form, purpose, relationship and financial relationship with the tribe, whether the tribe intended to share its immunity, and how federal policies would be furthered by granting immunity. Boiling it down, she noted "(e)vidence demonstrating the functional relationship between the tribe and the entity should also be provided to demonstrate that the entity is—in practice and on paper—an arm of the tribe.

Justice Timmer noted that the rafting business had not presented evidence to the trial court demonstrating that it is an arm of the tribe entitled to immunity from the suit; she noted that the business might try to do so now that the case is going back to the trial court for further proceedings.

Justice Clint Bolick wrote a brief concurring opinion to point out a strange aspect to the case that should prompt the U.S. Supreme Court to pull back its views on expansive sovereign immunity for tribal businesses. He noted that the rafting accident took place on Arizona state-owned land* and that Arizona's Constitution states that citizens' right to recover damages "shall never be abrogated." Yet, he notes, federal law has extended sovereign immunity to tribal-owned businesses and the possible conflicts.

*Who knew that Arizonans own the land underneath the Colorado River in the middle of the national park? I did not.

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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.

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.

BREAKING: Supreme Court Affirms Arizona Death Sentence For James McKinney, On 5-4 Vote (READ Opinion)

The U.S. Supreme Court today upheld the Arizona death penalty sentence for murderer James McKinney, in a divided 5-4 vote. The majority sided with the Arizona AG's Office that McKinney did not need to be re-sentenced to take his childhood-caused PTSD into greater account.

Justice Brett Kavanaugh wrote the majority opinion, and Justice Ruth Bader Ginsburg wrote the equally-brief dissent. Kavanaugh dismisses the defendant's argument that the Arizona Supreme Court reopened a direct review of the aggravating and mitigating factors. Kavanaugh agreed with the state's determination that its review in 2018 was a collateral review.

But the premise of that argument is wrong because the Arizona Supreme Court’s reweighing of the aggravating and mitigating circumstances occurred on collateral review, not direct review. In conducting the reweighing, the Arizona Supreme Court explained that it was conducting an independent review in a collateral proceeding. The court cited its prior decision in State v. Styers, which concluded that Arizona could conduct such an independent review in a collateral proceeding. Under these circumstances, we may not second guess the Arizona Supreme Court’s characterization of state law.

Justice Ginsburg pointed out that the Arizona Supreme Court had engaged in a direct review of the death sentence in 1996, and that its proceeding in 2018 amounted to another direct review. She writes that the death sentence is therefore invalid because the U.S. Supreme Court had struck down Arizona's then-existing death sentence regime as unconstitutional (in Ring v. Arizona in 2002), and that a jury should therefore make the determination.

After oral argument in December, AZ Law had noted that Justice Kavanaugh had been the most involved Justice in questioning both Arizona Solicitor General O.H. Skinner and Neil Katyal for the defense.

AZ Law has reached out to both sides for comment and will update this article as warranted.

"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.

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NEW: Senators McSally and Sinema Propose 42% Increase In Federal Judgeships For Arizona, To Alleviate "Judicial Emergency"

Arizona Senators Martha McSally and Kyrsten Sinema are proposing five new federal judgeships for Arizona, citing our "expanding population" and a "judicial emergency". If their new bill became law, the state would jump from 12 District Court judges - plus one temporary judgeship - to 17 permanent spots on the bench; that would be a 42% increase.

The Senators cite last year's recommendations of the Judicial Conference of the United States that four judgeships be added to Arizona. The Senators ignore the rest of the Judicial Conference's recommendations for new judgeships elsewhere, including five new appellate judgeships for the Ninth Circuit and 68 other permanent District Court judgeships around the country.

Arizona's caseload, as reported in the Conference's recommendations, do constitute what they define as a "judicial emergency". However, seven District Courts have more "weighted filings" per existing judgeship, and New Jersey, Delaware and Indiana's Southern District have a significantly larger

caseload.

The federal bench has not been increased by Congress (and the President) since George W. Bush was President. (Arizona was among the last batch of new judgeships.)

Senators McSally and Sinema have already helped nominate two replacement judges to Arizona's District Court bench. Judge Scott Rash is awaiting a vote from the Senate and Judge John Hinderaker is waiting for the Judiciary Committee to forward his nomination.

“Arizona is one of the fastest growing states in the nation," said Sinema. McSally added that "our federal judges are burdened with heavy caseloads that hinder their ability to effectively do their jobs.” She also suggested it would help "address crime and illegal immigration."

The bill (text below) does not have a companion bill introduced in the House, and it would need to be approved by both the House and Senate for the President to leap at the opportunity to sign it and nominate the new judges. That is unlikely to happen without the other overloaded states, or in an election year (with split control of the houses of Congress).

BREAKING: U.S. Supreme Court Tells Arizona It Won't Hear Complaint Against California For Stealing Tax Revenues; Thomas and Alito Dissent

The U.S. Supreme Court this morning decided NOT to hear Arizona's complaint against the state of California for stealing tax revenues from Arizona and Arizonans.

Attorney General Mark Brnovich asked the Court to accept the case one year ago. The Justices exercised their discretion to not accept the case. However, Justice Clarence Thomas wrote a brief dissent, saying that this decision leaves Arizona with "no judicial forum in which to seek relief." He was joined by Justice Samuel Alito. (The dissent is published below.)

Arizona tried to rely upon the U.S. Constitution (Article III, Section 2), which makes the Supreme Court the initial - and, only - court when one state is suing another.

Arizona 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 Attorney General's Office estimates that Arizona LLCs pay $10M/year to California that they should not have to, which causes the loss of $500,000/yr to the state of Arizona in tax revenues.

The Attorney General's Office may not be done with the matter. Spokesperson Katie Conner tells AZ Law, "We filed our lawsuit because California is collecting more than $10 million every year from Arizona taxpayers and small business owners who don't conduct business in the state. While we are disappointed in today’s news, the Supreme Court did not reject the merits of our claims; it only exercised its discretion not to hear the case.  We will continue to explore ways to rectify California's unconstitutional taxes."

Both the state of California and the U.S. Solicitor General urged the Court not to hear the case, although a few amicus briefs were filed siding with Arizona.

Arizona's Law has requested comment from the Attorney General and will update as warranted. Arizona did not hire outside counsel for this case.

This is the 2nd attempt by Brnovich's office to convince the highest court in the land to take original jurisdiction of a case. The Justices also declined to take the case against the family that owned Purdue Pharma in the wake of the opioid crisis.

(UPDATED, 12pm: Updated to add reaction from Attorney General's Office.)

LISTEN: Ride-sharing Fees At Sky Harbor, "Ballot Harvesting" Ban, Embryos Post-Divorce, and More; A New Installment of "AZ Law"

This installment of "AZ Law" has as many commentaries on Arizona cases as news articles. After an update on the Sky Harbor fees-for-ridesharing case, we have the surprising 9th Circuit decision on Arizona's "ballot harvesting" ban. Two opposing commentaries about that opinion follow. Then we have an article and column about the Arizona Supreme Court's case on what happens to embryos after a divorce.

Two more articles and a commentary follow.

Full listing:
1) Uber Drivers & Passengers Won't Be Able To Pick Up Case Vs. Sky Harbor Ride-Sharing Fees (AZ Law, Weich)
2) 9th Circuit Throws Out AZ's "Ballot Harvesting" Ban, Says Law's Intent Was To Discriminate Vs. Minorities (AZ Law, Weich)
3) Commentary: AZ can't ban ballot harvesting because we're racist? Federal court suggests so (Robb, Republic)
4) Commentary: Federal appeals court quashes AZ's latest voter suppression law, for now (Montini, Republic)
5) Woman can't use fertilized embryos without ex-husband's consent, AZ Supreme Court rules (Polletta, Republic)
6) Commentary: AZ Supreme Court ruled who gets the ebryos, but this case has no winners (Allhands, Republic)
7) 9th Circuit Says Holding AZ In Contempt for Healthcare In Prisons Is Valid, Maintains $1.45M Fine (AZ Law, Weich)
8) Ducey asks 9th Circuit to void court decision on land trust (Fischer, Capitol Media Services)
9) Commentary: Progress, yes, but we still have good reasons to sue AZ over school funding (O'Grady & Bendor, 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.

BREAKING: Uber Drivers & Passengers Won't Be Able To Pick Up Case Against Phoenix's Sky Harbor Ride-Sharing Fees

UPDATE, 2/3/20 at 12:20pm: The Goldwater Institute confirmed to "AZ Law" this morning that even though it will not be permitted to intervene in the case on behalf of ride-sharing drivers and passengers, they WILL file an amicus brief (i.e. "friend of the court") arguing why the fee increase would be harmful and why it would violate Arizona law.

The Arizona Supreme Court denied a request by five Uber and Lyft drivers to intervene in the legal challenge to Phoenix's decision to increase ride-sharing fees at Sky Harbor Airport. The Goldwater Institute had filed the motion last week, and without comment, the court denied it yesterday.

The Arizona Attorney General's Office filed the special action in January after concluding that Phoenix's decision to increase fees for commercial drop-offs and pick-ups curbside violated state law. The Goldwater Institute believed that it could "offer additional evidence and argument"

Jon Riches, the Institute's Director of National Litigation, said "we are hopeful it can no longer ignore those parties who have been most directly harmed by its actions."

Both Phoenix and the Attorney General's Office opposed the drivers'/passengers' motion. The case will go on without that perspective. It is set for oral argument March 26. The City and the AG's office agreed that the fee increases would not go into effect pending the Court's decision.

The fee increases would immediately raise a round-trip fee from $2.66 to $8.00, and the fees would increase up to $10.00 by 2024.

Here are the Responses from the City and the State: