Friday, May 29, 2020

BREAKING: Supreme Court Orders Hearing For Death Row Inmate On Whether Juror Misconduct Contributed To Second Conviction In Notorious Yuma Murders

The Arizona Supreme Court is ordering an evidentiary hearing for death row inmate Preston Strong, to determine whether juror misconduct contributed to his convictions for murdering six people in Yuma in 2005.

In a relatively unusual step, the Court issued an unsigned en banc Decision Order putting the appeal on hold until a new Yuma County Superior Court Judge* looks into "the circumstances of Juror 47’s alleged misconduct and knowledge of the Gill Murder and prior conviction, and whether or not it was harmless."

Before the trial in 2017 began, Juror 47 indicated that she had heard of the "La Mesa Street Murders" of two adults and four children. However, she did not tell the judge and attorneys that she also knew that Strong had been convicted of a subsequent murder of a Yuma physician (Satinder Gill). An
investigator for the defendant learned of the juror's unrevealed knowledge in a post-trial interview. The trial judge denied the request for an evidentiary hearing and the motions to undo the guilty verdict.

However, citing Ninth Circuit and U.S. Supreme Court opinions, the Arizona Supreme Court found that the judge should have looked into whether the juror's undisclosed information was "possibly prejudicial" and whether it impacted the guilty verdict ("harmless" or not).

“Harmlessness in this context means ‘that there is no reasonable possibility that the [external information] influence[d] the verdict.’” If the state does not show harmlessness, the conviction is unconstitutional, and the court must grant the defendant a new trial. If the prejudicial effect of the external information is unclear from the existing record, the trial court must hold an evidentiary hearing to determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial.
 In this case, because Strong established the presumption of prejudice, but it is unclear from the existing record whether he, in fact, suffered prejudice, Strong is entitled to an evidentiary hearing." (citations omitted)
Strong was sentenced to two life terms in the Gill Murder, and is on death row for the La Mesa Street Murders.



"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. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.
*The judge who initially handled the trial has since retired.

Friday, May 22, 2020

LATE-BREAKING: Arizona Supreme Court Decides Last Legislative Election Challenge

The Arizona Supreme Court decided its last legislative election challenge appeal late Friday afternoon on a long weekend, affirming the trial court's opinion and allowing Javier Soto to remain on the ballot.

Soto is one of three Democrats running for the State House in Legislative District 3. There are no Republicans running in that southwest Tucson district, so the top two candidates in the primary will likely be elected. He is running against incumbent Representatives Andres Cano and Alma Hernandez.

Soto represented himself in the election challenge, both in the trial and the Supreme Court. Patrick McKenna was represented by elections attorney Roopali Desai.

The four-member panel of the Supreme Court Justices did not explain their decision and will issue an opinion with their reasoning in the future.

The Court has one Election Challenge appeal left - a Prescott Valley Town Council candidate. Apparently because Yavapai County has a later ballot-printing deadline than Maricopa County, the Court has left this challenge to the end.

Coverage of the other election challenge appeals can be found in the articles below.


"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. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

Cell Phone Search Of Suspected Statutory Rapist Who Violated Probation Was Constitutional Under Circumstances, Arizona Supreme Court Rules

A probation officer did not violate a Tucson man's Fourth Amendment rights when he searched a cell phone and found evidence that the suspect was engaged in a sexual relationship with a 13-year old girl, the Arizona Supreme Court ruled this morning.

"Under the totality of circumstances, we hold that (the search) was reasonable and therefore
compliant with the Fourth Amendment," Vice Chief Justice Ann Timmer wrote on behalf of the unanimous Court. The opinion reversed the trial court's decision to keep the text messages from being used at Bryan Lietzau's trial. (The Court of Appeals had also reversed the judge's decision, but today's Supreme Court opinion replaces the earlier decision.)

Lietzau was on probation for domestic violence aggravated harassment. Later in 2014, a woman called his probation officer with concerns that the man was having a sexual relationship with her 13-year old daughter. The defendant was not permitted to contact either the woman or the daughter. The probation officer arrested Lietzau for other violations of his probation agreement, and searched his cell phone while bringing Lietzau to jail. He found "numerous text messages between Lietzau and (the minor)." The Tucson Police Department then got a search warrant and found incriminating photos and messages.

At trial, he argued that the initial search violated his Fourth Amendment rights against unreasonable search and seizure, and that it was unreasonable under the totality of circumstances. The Supreme Court decided that the standard probation conditions that allow searches of "property" do include cell phones - and the digital data contained inside the cell phone.

"But we have never held that such conditions alone are sufficient to make any search of a probationer’s person or property reasonable under the Fourth Amendment." Rather, it gives them a diminished expectation of privacy. The opinion then analyzed a number of factors and reached different conclusions from the trial court judge.


"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. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

Thursday, May 21, 2020

BREAKING: Arizona Settles Lawsuit Challenging Deadline To Receive Mail-In Ballots

Arizona has settled a lawsuit challenging the law that mail-in ballots must be *received* by 7pm on Election Day. The Democratic Party said that the ballots should be accepted and counted as long as they are postmarked by Election Day (and received within five days after).

Although details of Arizona's settlement in principle are not yet available, the ground underneath the conflict shifted substantially last month when the U.S. Supreme Court ruled on a Republican challenge to Wisconsin's primary election procedures. In that ruling, the Justices rejected allowing ballots to be postmarked *after* election day, but blessed counting the ballot as long as it was postmarked on or before election day and received within six days.

Attorneys for the Democratic-affiliated groups Voto Latino and Priorities USA promptly cited that decision in the Arizona case. A hearing was scheduled for this morning, but the parties filed their request to postpone it in light of their "settlement in principle".

Democratic Secretary of State Katie Hobbs did not side with the Plaintiffs, and the Attorney General's Office has represented her in defending the *received by Election Day* law.

Arizona moved to so-called "no excuse" absentee mail-in voting  a bunch of years ago, and most Arizonans are on the Permanent Early Voting List, which gives them the option of using the early-mailed ballot or voting in person on Election Day. People can mail a PEVL request form to their County Recorder or add their name online at ServiceArizona.com.

Early mail-in voting is currently in the news and under attack from President Donald Trump. One of the President's lines of attack is that so-called "ballot harvesting" can provide opportunities for fraud. Arizona may be in the forefront of that subject, as well; the state and the Republican Party have appealed a 9th Circuit ruling to the Supreme Court, seeking to reinstate the state's ban on delivering other people's completed ballots. County Recorders carefully match the voters' signatures between the envelope containing the ballot and the voter registration records.

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

Monday, May 18, 2020

BREAKING: Judge Scott Rash CONFIRMED To Arizona's U.S. District Court Bench

Pima County Superior Court Judge Scott Rash was elevated to a lifetime position on Arizona's U.S. District Court Bench this morning, as the Senate voted overwhelmingly, 74-20, to confirm him. Both of Arizona's Senators supported his confirmation.

Rash is 57 years old and has been the presiding Family Court judge in Tucson. He was on the Superior Court bench for the past 10 years. He fills a vacancy created when Judge Cindy Jorgenson went to Senior status just over two years ago.

* * * * *
5/18: UPDATE: U.S. Senate Moves Tucson Judge One Day Away From Confirmation For Federal Judgeship

The U.S. Senate voted this afternoon to limit debate on Judge Scott Rash's nomination to the U.S. District Court bench for Arizona. The cloture vote was 67-21. The confirmation vote will now take place tomorrow or
Wednesday.

Rash was nominated for the lifetime judicial position by President Trump last September, and has received positive recommendations from both of Arizona's Senators. He is currently a Pima County Superior Court Judge.

Rash is currently the presiding Family Court judge and has been on the Superior Court bench since 2010. He previously worked in private practice on civil litigation and with the Arizona Attorney General's Office in criminal prosecution. He attended University of Arizona for both undergraduate and law school.

His most recent judicial performance ratings are from 2016, and show that he was unanimously approved as meeting performance standards.

Arizona has one more nomination pending before the Senate. Judge John Hinderaker is also on the Pima County Superior Court bench, but his choice has proved to be more controversial among Republicans. His selection passed out of the Senate Judiciary Committee in March on a 16-6 vote; the six "no" votes were all from Republican Senators.

Thursday, May 14, 2020

UPDATE, NO MEANS NO: Owens Files Emergency Motion To Get Back On Ballot, Supreme Court Immediately Rejects It

UPDATE: Owens Files Emergency Motion To Get Back On Ballot, Supreme Court Immediately Rejects It
Last night, Kim Owens' attorneys filed an emergency motion asking the Supreme Court to reconsider its decision to remove her from the Corporation Commission election. This morning, the Supreme Court hurriedly said "no".

The removal Order was released yesterday after 5pm, so the attorneys wasted no time in suggesting that the four Justices had unanimously made "an erroneous determination of fact or law." And, the Court wasted so little time this morning in rejecting that contention that they missed a key typo - misspelling Justice Andrew Gould's name on the signature line.

The attorneys are unable to move for reconsideration of the rejection of last night's Motion for Emergency Reconsideration, and it is highly unlikely that an appeal will be made to the U.S. Supreme Court. State law prevents Owens from now running as a write-in candidate, so today's rejection is probably the final word.


BREAKING: Supreme Court Removes Corporation Commssion Candidate Kim Owens, Reversing Trial Court (READ, Order)
The Arizona Supreme Court removed Corporation Commission candidate Kim Owens from the election ballot this evening, overturning the trial judge's ruling. The surprising development leaves only two Republicans on the ballot for the three open seats.

The four Justices* said that Superior Court Judge Timothy Thomason erred in allowing Owens to resurrect 172 signatures that County Recorders had found to be invalid. The Justices said:
"The only evidence offered by Owens to rehabilitate the signatures that were invalidated because the signer was not registered to vote was the “GOP Data Center” records. However, Owens failed to make the Data Center records available, nor were the records offered or received into evidence. Additionally, there was no testimony establishing that either the Data Center records or Owen’s testimony about the records constituted reliable, competent evidence for the court to consider. Accordingly, there was no reasonable evidence to support the trial court’s finding that the candidate rehabilitated a sufficient number of signatures to remain on the ballot."
After the trial, Judge Thomason determined that Owens had gathered 8 more valid signatures than the number needed to be placed on the August 4 primary ballot. The Supreme Court's decision on the resurrection issue left Owens 164 short.

Owens had been challenged from the left and from the right, and her removal leaves the Republicans short of a full slate of candidates for the Corporation Commission. Only current Commissioner Lea Marquez Peterson and candidate Eric Sloan - who survived an appeal two days ago - remain. Current Commissioner Boyd Dunn was removed by the Supreme Court yesterday, David Farnsworth withdrew his candidacy after being challenged, and Nick Myers was removed by a judge.

Persons interested in running as a write-in for the August 4 Republican primary election will have the next several weeks to file. (A.R.S. §16-312) The candidates who were removed from the ballot cannot try again as a write-in. A write-in will have to get at least the number of votes that they would have had to collect signatures; in this case, over 6,663. (A.R.S. §16-322, -645)

The Democrats have a full slate of three candidates, none of whom had their petitions challenged in court.

*These expedited elections cases are decided by a panel of four of the seven Justices. This case was considered by Justice Gould, Justice Lopez, Justice Beene, and Justice Montgomery. (Justice Clint Bolick recused himself from being on the panel because Owens was represented by the attorneys who represented his wife in her challenge/appeal. However, we do not know if he would have been selected for the panel.)
*

Wednesday, May 13, 2020

BREAKING: Now, He Is Done - Corporation Commissioner Boyd Dunn WILL NOT Be On Ballot, Rules Supreme Court (READ Court Order)

The Arizona Supreme Court rejected Corporation Commissioner Boyd Dunn's argument that two separate challenges of his nomination petition signatures could not be combined, and he will not be on the ballot for re-election this November.

The two court challenges had two separate sets of signatures that they believed to be invalid. Either one of them would have failed, but when Superior Court Judge Roger Brodman added the invalid signatures from each of the cases, he found that Dunn did not have enough valid signatures.

Dunn's attorneys argued that the plaintiffs' attorneys could have incorporated each other's claims, but failure to do that did not give the Corporation Commissioner proper notice of which signatures to defend.

The four Justices of the Supreme Court who considered the appeal (Brutinel, Timmer, Lopez, Beene*) unanimously decided that that argument fails.
"The Candidate had timely notice of the challenges to the signatures on his petitions in each of the two verified complaints. Therefore, his claims that the doctrines of estoppel, laches and due process preclude the combining of the results from both of the cases fail because the Candidate had timely and proper notice of each challenge to each signature as required by A.R.S. § 16-351(A), and because as a result of the challenges, the Candidate did not have a sufficient number of valid signatures to be placed on the ballot."
There is still one appeal to be determined to set the Republican primary battle for the three Corporation Commission seats. Lea Marquez Peterson was not challenged, and the Supreme Court ruled in favor of Eric Sloan yesterday. David Farnsworth withdrew his candidacy after being challenged, and Nick Myers was removed by a judge. That leaves Kim Owens' case to be determined by the Supreme Court.

*These expedited appeals are heard by four-Justice panels. Justice Clint Bolick recused himself from being a member of the panel on this case.

Tuesday, May 12, 2020

BREAKING: Corporation Commissioner Candidate Sloan Remains On Ballot, Supreme Court Rules

A Republican candidate for a seat on the Arizona Corporation Commission can remain on the election ballot, the Arizona Supreme Court ruled this afternoon. Eric Sloan will be on the primary election ballot in August.

The Court affirmed the trial court's ruling that  Mary Halford challenged a batch of signatures, but did not properly specify the basis for removal of many of them. The Complaint had indicated that they were "wrong voter street address". 

Two appeals against GOP Corporation Commission candidates remain for the Supreme Court to decide, against current Commissioner Boyd Dunn and candidate Kim Owens. David Farnsworth withdrew his candidacy after being challenged, and Nick Myers was removed by a judge.


BREAKING: Stay Home Orders Expiring May 15; READ New Executive Order

Closing with a plea to Arizonans to continue to be smart and help minimize the spreading of the virus, Arizona Governor Doug Ducey finished a news conference in which he announced further re-opening
of the economy and the expiration of the stay-at-home and travel restriction Executive Orders.

He urged people to see this as a "Green light to proceed. Not a green light to speed." Ducey also made a pitch to get Major League Baseball and other professional sports leagues to come to the state. MLB yesterday put out a plan to play a shortened season that would start with a 2-3 week "Spring training" in Arizona/Florida/hometown cities. The Governor indicated that he has spoken recently with the MLB Commissioner.

*
*
With another month's rents and payments now due during this pandemic, Arizona's Politics' co-founder Paul Weich is re-upping his offer to provide pro bono legal advice to small businesses and individuals.

The current crisis has raised not only health questions and economic questions, but a slew of legal concerns, as well. Longtime Valley attorney Paul Weich is donating a couple of hours a day to small businesses and individuals with questions about the state's Executive Orders and the federal and state rescue programs. You can call (480-759-1983) or email (Paul.Weich@PWLawArizona.com) the Law Offices of Paul Weich to set up a pro bono session.

Monday, May 11, 2020

BREAKING: Rep. Bolick Stays On Ballot, Says Supreme Court; ARIZONA ELECTION CHALLENGES - Big and Small, Updated through May 11

UPDATE, 5:10pm: The Arizona Supreme Court has decided that although State Rep. Shawnna Bolick "did not strictly comply" with statutory requirements to list her residential address, it was unlikely to confuse voters and that she can remain on the ballot for one of the LD20 House seats.

The Order is below.

* * * * *

The Arizona Supreme Court has set the accelerated briefing schedules for all of the election challenge appeals. Two of them have already been decided, and all but one will be in front of the Court by Wednesday. (That last one involves a legislative race in Pima County - Democratic candidate Javier Soto is being challenged in LD3. The ballot deadline in Pima is later than in Maricopa, so the Court gave the parties more time to brief the appeal.)

We have also added several cases from Apache County to the spreadsheet. Although we had to pay a few dollars to get the minute entries, we now know that Sheriff Joseph Dedmon, Jr. did survive a challenge to his nomination petitions. Most other challenges in Apache were successful, however.

The spreadsheet includes all of the cases from Maricopa County Superior Court - which handles statewide, multi-county, and county wide cases. It also includes cases from other counties that were provided to Arizona's Politics/AZ Law by readers or officials.

We are reaching out to the attorneys involved in the appeals, asking to publish their arguments. If you have info on any cases - from any county - that are not listed here, please email me all of the necessary data (and a link, if available) to Paul.Weich.AZlaw @ gmail.com. Ditto if you have updates on the spreadsheet.


Friday, May 8, 2020

BREAKING UPDATE: Arizona's Stay-At-Home Orders Withstand Constitutionality Challenge

4:45pm: Arizona's Stay-At-Home Orders Withstand Constitutionality Challenge
In an 11-page Order late Friday afternoon, U.S. District Court Judge G. Murray Snow refused to issue a Temporary Restraining Order placing an immediate hold on Arizona's stay-at-home orders in light of the coronavirus pandemic.

As to whether Governor Doug Ducey had the right to declare the emergency, Judge Snow stated:

"COVID-19 was present and rising in Arizona, and had been identified as a public health emergency by both the WHO and HHS. the Court simply does not possess the authority to second-guess Governor Ducey’s decision to declare a state of emergency, in accordance with Arizona law, where there was some evidence, upon which he relied3, to support the existence of a public health emergency. Of course the governor’s power “to declare an emergency and thus eliminate the constraints of the due process clause is not without bounds.”  However, to evade the deferential review given to emergency decisions, a plaintiff must show “the [state] official[] kn[e]w no emergency exist[ed], or [acted] with reckless disregard of the actual circumstances.” In light of the multiple publications declaring COVID-19 a public health emergency, and Plaintiff’s own admission that COVID-19 is highly contagious and present in all 50 states, Plaintiff has not and is not likely able to make this showing. As a result, Plaintiff will not likely succeed on the merits of this claim. Nor does the Court find that Plaintiff has raised serious questions as to its merits."
Similarly, Judge Snow disagreed with Mr. McGhee's claims that the Executive Orders violated either his rights to procedural or substantive due process.

*

10am: Federal Judge Hears Arguments On Constitutionality Of Arizona's Stay-At-Home Orders, Will Rule Later Today
The constitutionality of Arizona's Stay-At-Home Orders was argued in federal court this morning, and District Judge G. Murray Snow will issue a decision on this "important issue" by the end of the day.

The case was brought in early April by furloughed Flagstaff restaurant worker Joseph McGhee. He represented himself today, and argued that Arizona's Executive Orders amounted to a "mass quarantine" that infringes on well individuals' constitutional liberty rights, without providing due process.

Both Judge Murray Snow and attorney Brett Johnson acknowledged the efforts made by Mr. McGhee's. In the 50-minute long telephone hearing, the judge led him through some of the arguments and complimented him on his "turn of phrase" in suggesting that the Executive Order unconstitutionally restricts his right to "aimlessly wander. Johnson noted that "we all recognize that in his initial pleadings, Mr. McGhee raises important issues.



***(Previous article, below)

The  question of whether Arizona Governor Doug Ducey's "Stay Home" Executive Orders are unconstitutional will be the primary issue Friday morning during argument before a U.S. District Court Judge. A furloughed Flagstaff restaurant worker* filed the case more than a month ago against Mayor Coral Evans and Governor Doug Ducey.

Flagstaff took the case out of Coconino County Superior Court and brought it the federal court in Phoenix, and the Governor's attorneys today filed a raft of pleadings blasting Plaintiff Joseph McGhee's lawsuit. "Plaintiffs (sic**) relies on vague and plainly erroneous contentions that the executive order prevents him from leaving his home. Further, while Plaintiff appears to argue that COVID-19 poses no meaningful health risk to him, he provides no reason why this Court should ignore the well-being of the many persons for whom COVID-19 does pose grave danger."

The Governor's pleadings include the gradual steps towards re-opening non-essential businesses which have been taken during the past few days, perhaps highlighting the apparent reasonableness in Arizona's approach. The upcoming hearing coincides with a movement by some on the right to protest that the state is not reopening fast enough. Another example is the recall petition taken out on Friday charging that the Governor's Executive Orders have been unconstitutional.

The oral arguments on McGhee's Motion for a Temporary Restraining Order against the Governor
will take place by telephone in front of Judge G. Murray Snow. McGhee is representing himself, and the Governor has retained the prominent Phoenix law firm of Snell & Wilmer. Flagstaff this afternoon filed a simple "me, too" in joining with Ducey.

McGhee argues that the "mass quarantine" violates Arizonans' constitutional rights without providing due process. He also claims that the scientific evidence shows the Covid-19 death rate is lower than widely believed, meaning that the state is not in the "extreme peril" required for such emergency measures. "(T)he fear and panic gripping the world is wholly unjustified."

Ducey's attorneys also filed today a Motion For Judicial Notice, which lays out a valuable timeline of government statistics and actions.

Thursday, May 7, 2020

BREAKING: Arizona Supreme Court Decides First Election Challenges, Leaves Glendale Mayoral and Council Races Intact

The Arizona Supreme Court decided the first pair of election challenges this afternoon, affirming the trial court's decisions and leaving the Glendale mayoral and city council races intact.
(from Twitter profile)

The Superior Court judge last week decided that mayoral candidate Michelle Robertson would remain on the ballot after finding that a petition circulator who had been convicted of a felony WAS able to gather signatures because his/her civil rights had been properly restored pursuant to A.R.S Sxn 16-321(D). The Supreme Court agreed.

In the Council race, Bryce Alexander's petitions had been challenged. The Superior Court judge heard testimony and decided that challenger Joyce Clark had not established that the circulator who signed the back of several petition sheets had not witnessed the voters' signatures. The Supreme Court today found that Judge Sanders had not abused her discretion.

The Supreme Court Justices have six more appeals to decide, including cases involving three of the six Republican candidates for the Arizona Corporation Commission.


Wednesday, May 6, 2020

UPDATE: Arizona Supreme Court Re-Consolidates The Two Boyd Dunn Appeals, Sets Briefing Schedule

Playing it cautious, the Arizona Supreme Court re-consolidated Arizona Corporation Commissioner Boyd Dunn's appeals of his getting knocked off this year's ballot. The Court also set an expedited  briefing schedule that will allow it to decide the  matter before Maricopa County has to begin printing its first ballots on May 15.

The two different cases - and, thus, the two different appeals - are a key issue for Dunn in challenging last week's trial court decision. The cases were filed by different parties and challenged different signatures. The County Recorders thus invalidated different sets of signatures for each case.

Superior Court Judge Roger Brodman added the invalidated signatures from both sets, and found that there were not enough valid signatures. Although the cases had been consolidated, Dunn's attorney, Jack Wilenchik, argued unsuccessfully that because neither plaintiff had amended his complaint to add the other challenge's signatures, both had to be considered separately.

Even though the attorneys all agreed today that the Supreme Court did not need to re-consolidate the appeals, Justice Andrew Gould decided to do so on his own.

He also set this Friday as the deadline for Dunn's counsel to file their brief, and the challengers will file their response next Tuesday. The Court will then decide the case without oral argument.

(AZ Law will be posting its latest update of Election Challenges from around the state - including all appeal information, before Thursday morning.)

Tuesday, May 5, 2020

BREAKING: Flagstaff Man Challenging Arizona's "Unconstitutional" Stay-At-Home Orders Gets Day In Court On Friday; Governor's Attorneys Blast Him Today (READ Key Pleadings)

The  question of whether Arizona Governor Doug Ducey's "Stay Home" Executive Orders are unconstitutional will be the primary issue Friday morning during argument before a U.S. District Court Judge. A furloughed Flagstaff restaurant worker* filed the case more than a month ago against Mayor Coral Evans and Governor Doug Ducey.

Flagstaff took the case out of Coconino County Superior Court and brought it the federal court in Phoenix, and the Governor's attorneys today filed a raft of pleadings blasting Plaintiff Joseph McGhee's lawsuit. "Plaintiffs (sic**) relies on vague and plainly erroneous contentions that the executive order prevents him from leaving his home. Further, while Plaintiff appears to argue that COVID-19 poses no meaningful health risk to him, he provides no reason why this Court should ignore the well-being of the many persons for whom COVID-19 does pose grave danger."

The Governor's pleadings include the gradual steps towards re-opening non-essential businesses which have been taken during the past few days, perhaps highlighting the apparent reasonableness in Arizona's approach. The upcoming hearing coincides with a movement by some on the right to protest that the state is not reopening fast enough. Another example is the recall petition taken out on Friday charging that the Governor's Executive Orders have been unconstitutional.

The oral arguments on McGhee's Motion for a Temporary Restraining Order against the Governor
will take place by telephone in front of Judge G. Murray Snow. McGhee is representing himself, and the Governor has retained the prominent Phoenix law firm of Snell & Wilmer. Flagstaff this afternoon filed a simple "me, too" in joining with Ducey.

McGhee argues that the "mass quarantine" violates Arizonans' constitutional rights without providing due process. He also claims that the scientific evidence shows the Covid-19 death rate is lower than widely believed, meaning that the state is not in the "extreme peril" required for such emergency measures. "(T)he fear and panic gripping the world is wholly unjustified."

Ducey's attorneys also filed today a Motion For Judicial Notice, which lays out a valuable timeline of government statistics and actions.

AZ Law requested comment from Mr. McGhee and will update as warranted.

Below the jump are McGhee's most recent Motion for a TRO, the Governor's Response, Flagstaff's Joinder, and the Governor's Motion for Judicial Notice (setting forth a timeline of statistics and governmental actions).

Monday, May 4, 2020

BREAKING: Bolick Challenge Appealed To Supreme Court; Husband Will Recuse

Arizona's Law has confirmed that Judith Lohr has appealed her unsuccessful challenge of State Rep. Shawnna Bolick's nomination papers and petitions to the Arizona Supreme Court.

Justice Clint Bolick has (obviously) recused himself from hearing the expedited challenge. This does not effect the normal hearing of the case, as these election matters are typically handled by only four of the seven Supreme Court Justices.

The briefs in the case will be due to the Court sometime in the coming week, and there will not likely be any oral argument.

Here are Arizona's Law's previous  articles on the case.


UPDATE: No Miracle - Plaintiffs Dismiss Entire Suit Challenging Initiative Circulator "Strikeout" Law, One Day After 9th Circuit Appeal

The plaintiffs today dismissed their entire challenge to Arizona's so-called "strikeout" law, which requires a judge to throw out all initiative petition signatures collected if the circulator fails to show up in court during the court challenge. It was only Friday that the 9th Circuit affirmed the decision to not grant an injunction against the law.

The case had been filed by Arizonans for Fair Lending (and other groups and individuals), in anticipation of filing enough signatures to attract a court challenge to its proposal to outlaw high interest title loans. The group had suspended its signature-gathering efforts after District Court Judge Susan Bolton denied their injunction request. Now, it suspends its court challenge.


Saturday, May 2, 2020

Four Cases Appealed To Supreme Court... So Far; ARIZONA ELECTION CHALLENGES UPDATE - Big Cases and Small Cases

The Arizona Supreme Court has received four expedited appeals from election challenges... so far.

As promised to AZ Law in an earlier update, Corporation Commissioner Boyd Dunn filed his appeal late Friday. The main issue will be whether or not the trial judge should have combined the signatures invalidated in each of the two separate lawsuits filed against Dunn. (The circulator who forged most of the signatures she collected will likely not be a significant issue, because the judge relied on Supreme Court precedent to strike all of the signatures on her petition.)

Glendale is the hotspot in this election cycle - two rulings are being appealed. Michelle Robertson is running for Mayor, and the judge ruled in her favor. He found that she had 58 more valid signatures than the 1297 required.

The challenger (Demetra Lau) is appealing. Bryce Alexander is running for the City Council and survived the challenge by 8 signatures. However, Plaintiff Joyce Clark is contending that the judge should have struck 34 signatures collected by a convicted felon. Judge Sanders found that the circulator's rights were restored under Arizona law.

Finally, the Supreme Court will hear an appeal by the person who challenged State House candidate Javier Soto (Democrat in LD3). Patrick McKenna is the challenger. (As of Saturday evening, the bases for the judge's ruling are not yet available on the court's website, so the issues on appeal are not yet clear.) Because the Pima County Attorney's Office indicated that the deadline to finalize the ballot format is not until June 2, this will not be on as tight a briefing schedule as the other appeals.

There is no word yet on whether the woman who challenged State Rep. Shawnna Bolick will appeal the ruling in the legislator's favor. The deadline for most or all appeals in the elections challenges will be this coming Friday.

* * * * *

Here is the complete, updated spreadsheet of election challenges from around the state. This is currently updated as of 8pm, May 2.

It includes all of the cases from Maricopa County Superior Court - which handles statewide, multi-county, and county wide cases. It also includes cases from other counties that were provided to Arizona's Politics/AZ Law by readers or officials.

If you have info on any cases - from any county - that are not listed here, please email me all of the necessary data (and a link, if available) to Paul.Weich.AZlaw @ gmail.com. Ditto if you have updates on the spreadsheet.


UPDATE: Split 9th Circuit Panel (Temporarily) Rejects GOP's Effort To Re-Impose Arizona's Voter Registration Deadline

By a 2-1 vote last night, a 9th Circuit panel kept Arizona's extended voter registration deadline in place. Two days ago, a District Cou...