Friday, July 31, 2020

BREAKING: Corporation Commission's Placing EPCOR In Charge Of Johnson Utilities' Operations Was Constitutional, Says AZ Supreme Court (READ Opinion)

The Arizona Corporation Commission did not exceed its constitutional authority in 2018 when it appointed EPCOR to serve as the interim manager of Johnson Utilities, the Arizona Supreme Court decided today.

In a 6-1 decision, the Court found that "the Commission possesses authority to appoint an interim
manager to protect the health and safety of a PSC’s customers, employees, and the public at-large."

This is a developing story. Please check back for updates.

"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.

Tuesday, July 14, 2020

BREAKING: Arizona Supreme Court Reinstates Ethics Charges Against Juan Martinez, Takes Strong Stand Against Sexual Harassment (READ DECISION)

The Arizona Supreme Court took a strong stand against sexual harassment committed by attorneys today, reinstating ethics charges against well-known prosecutor Juan Martinez.

The two claims that Martinez "had sexually harassed multiple female law clerks at the (Maricopa) County Attorney's Office over several years" had been thrown out. The Justices unanimously reinstated the allegations, deciding that Presiding Disciplinary Judge William O'Neil's had been "arbitrary and capricious or an abuse of discretion."

Noting that the Ethics Rules for attorneys require that they "avoid engaging in unprofessional conduct", the Court flatly stated:

"The prohibitions against "unprofessional conduct"...includes substantial and repeated sexual harassment of staff or subordinates. Our decision here is consistent with our prior cases stating that sexual harassment by lawyers in other professional contexts is unethical. (Citing past decisions where a judge had sexually harassed attorneys appearing before him and where an attorney had sexually harassed a client.)"
Martinez had prosecuted many high-profile cases for the Maricopa County Attorney's Office, most notably the Jodi Arias case. Justice Bill Montgomery recused himself from this case because his previous elected position was Maricopa County Attorney.



"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.

Tuesday, July 7, 2020

BREAKING UPDATE: Mountainside Fitness Unable To Close By 2pm Today, Promises To Get Them Closed By 8pm; Judge Wants Proof On His Desk Wednesday

UPDATE, 2:30pm: BREAKING UPDATE: Mountainside Fitness Unable To Close By 2pm Today, Promises To Get Them Closed By 8pm; Judge Wants Proof On His Desk Wednesday

Arizona and Mountainside Fitness had its 2nd court hearing in two days this afternoon, and had to revise its promised closing time to comply with Governor Doug Ducey's Executive Order.

After this morning's decision (below) refusing the fitness centers' request to halt the Executive Order, Mountainside CEO Tom Hatten announced that it would close all 18 of its gyms by 2pm today.

In court this afternoon on the Department of Health Services' separate suit to shut Mountainside down, Hatten's attorney explained that only one center closed by 2pm, and that they needed until 8pm to close the other gyms. (No reason for the change was given, or asked for.)

Mountainside also agreed that they will not re-open any of its gyms until given the go-ahead by either the Governor, AZDHS or a court.

Superior Court Judge Daniel Kiley ordered that Hatten provide an affidavit confirming the re-closures by 9am, and set a follow-up hearing for one hour later.

AZDHS was not willing to take Mountainside's word for it regarding the closures because of the "very public refusal to abide by the Governor's Executive Order", said AZDHS attorney Craig Morgan.

For its part, Mountainside vowed to continue to fight the State's decisions - both the one to shut down all fitness centers until at least July 27, and the decision to file a civil enforcement action against only Mountainside ("That's how bad this was," said attorney David Schwartz.)


*****
Original article, 7/7 at 9:45am: "BREAKING: Judge DENIES Mountainside's & EoS's request for a TRO preventing Arizona from temporarily shutting down gyms. (READ 13-page ruling)"

Arizona Governor Doug Ducey's Executive Order shutting down indoor gyms remains in effect this morning, after a Maricopa County Superior Court judge this morning denied a request for a Temporary Restraining Order by Mountainside Fitness and EoS.

Judge Tim Thomason issued a thorough analysis of the issues, after reading the parties' pleadings over the weekend, and hearing oral arguments yesterday. He felt that the State had a rational basis for issuing the order last week, and that the gyms were unlikely to prove that their due process and equal protection rights were violated.

Thomason also set a status conference for Thursday, to see how the parties wish to proceed.

Here is our article with more details about yesterday's hearing.

Other developments occurred yesterday, as well. The Arizona Department of Health Services filed a civil action in Superior Court to shut Mountainside down. There is a hearing this afternoon on that case.

And, U.S. District Court Judge Diane Humetewa set a hearing for next Monday morning in the suit brought by a chain of boutique fitness centers (Club Pilates, Pure Barre, more).

*
(This is a developing story. Please check back for updates.)

Monday, July 6, 2020

BREAKING: "The Empire Strikes Back", AZDHS Files Civil Action To Shut Down Mountainside Fitness; Hearing Tomorrow

As promised, the Arizona Department of Health Services has filed a civil action to shut down the Mountainside Fitness centers that have been defying last Monday's Executive Order to re-close gyms until at least July 27.

The State filed its Complaint and a Request for a Temporary Restraining Order Monday afternoon. Judge Daniel Kiley will hold a hearing on the demand Tuesday, July 7, at 2pm.

The State has hired Sherman & Howard attorney Gregory Falls to represent it in this matter.

(This is a developing story and more information will be filed as it becomes available.)


Original article: "The Gym Rebellion, Chap. 5": Updates From Mountainside/EOS vs. Governor Doug Ducey; Judge Plans To Rule On Tuesday (WATCH HEARING)

The judge plans to rule tomorrow after hearing Monday morning arguments about whether Arizona Governor Doug Ducey's Executive Order suddenly closing down indoor gyms to slow the spread of COVID-19 violated the gyms' due process rights.

Mountainside Fitness and EOS Fitness - two of the largest chains of fitness centers in the state - filed now-combined court challenges after last Monday's Executive Order (which also temporarily shut down bars, water parks, movie theaters and tubing operations). Superior Court Judge Timothy Thomason set today's emergency hearing on whether the order should remain in place. Mountainside has continued to operate pending the hearing and has received citations from municipalities; EOS chose to close down until the judge could rule*.

The parties were filing pleadings explaining their arguments over the weekend. Outside counsel representing the Governor told the court that Mountainside's effort to claim that the Executive Order violates Arizona's emergency statutes "relies on the absurd notion that the Governor, in the middle of a worldwide pandemic where information is changing on a daily and even hourly basis, must publicly notice a meeting (in accordance with public meeting laws), call together fourteen different people and get their sign off prior to making any decision to address the emergency. Such process would negate any ability to govern during emergencies."

Judge Thomason questioned the attorneys about their arguments. He indicated that while he did not work as hard as the parties' counsel did over the holiday weekend, "but I did work pretty hard" and hopes to be able to rule Tuesday.

Mountainside's attorney, Joel Sannes, explained to the court that their gyms were following the protocols that were set up by the state (in coordination with the White House and the CDC), and therefore there was no "rational basis" for the  Governor's new order shutting down the gyms that may have been in compliance. (E.g. no proved cases coming from compliant gyms.)

"Times have changed", says Governor's attorney Brett Johnson, explaining why gyms that reopened have to re-close even if they were in compliance with the CDC protocols.

"I thought this was written in a manner that the businesses could reopen on July 27," said Judge Thomason. "That is our hope," responded Johnson. The judge later said that the state's plans and comments are "less than reassuring that there really is" a valid "post-deprivation" process.


There is also a case against the Governor's Executive Order in federal court, filed by a chain of boutique fitness centers. That case was today assigned to District Court Judge Diane Humetewa.


*The Governor's attorney praised EOS for going "above and beyond" in their efforts to re-open safely, and for closing once the Executive Order was issued. On Friday, the state also praised Life Time Fitness for agreeing to close.

*



"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.

Friday, July 3, 2020

BREAKING: "Rebellion of the Gyms, Chap.4" - Life Time Fitness Blinks "Out of Respect For the Governor"... But For How Long? EOS Fitness Fighting In Court On Monday (Joining Mountainside)

(Update, July 6: Coverage from the emergency hearing can be found here.)

Arizona Governor Doug Ducey and the Department of Health Services went on the offensive yesterday against rebellious gyms, and today announced major player Life Time Fitness had backed down.

The state's letter yesterday threatened immediate civil action in court if the gyms did not shut down by noon, today. Shortly after that deadline, AZDHS announced that Life Time would re-close "and come into compliance with the Governor’s Executive Order 2020-43 and the Department’s Emergency Measures." AZDHS also suggested that it would be partnering with Lifetime "to develop examples of best practices for the fitness industry to provide technical assistance for other fitness professionals."

Monday's Executive Order called for gyms (and, bars, movie theaters, water parks and tubing operations) to "pause" operations until at least July 27.

However, in a surprise move moments after today's AZDHS announcement, Life Time's CEO told Arizona members that LTF's pause is only through Monday evening "out of respect for the Governor".  The pause is to "allo(w) time to meet with the Governor's team and collaborate on how we can quickly reopen the indoor fitness portion."

CEO and Founder Bahram Akradi also urged members to take to Twitter/phones/email to tell Doug Ducey to re-open Life Time. He even gave a sample Tweet: "@dougducey, Working (sic) out keeps me healthy to fight illness and disease. Please allow me to workout at my health club now."

Akradi noted that he has been in Phoenix the past two days and has spoken with "many, many members expressing how essential this is for them". (We have not yet posted the email.)

***
Meanwhile, "AZ Law" has learned that EOS Fitness will be joining Mountainside Fitness in Superior Court on Monday morning. EOS - a locally-based chain of gyms with about 20 locations in Maricopa County - filed the suit earlier in the week. The Court consolidated their case with Mountainside's yesterday.

The emergency hearing is set for 9:00am on Monday morning.


Thursday, July 2, 2020

UPDATE: Monday Morning (7/13) Hearing Set On Boutique Gyms' Challenge Of Governor's Shutdown Order

UPDATE, 7/6/20, 5pm: UPDATE: Monday Morning (7/13) Hearing Set On Boutique Gyms' Challenge Of Governor's Shutdown Order

Judge Diane Humetewa has set a hearing for Monday morning, July 13, on Xponential Fitness's request for a TRO against Arizona Governor Doug Ducey's Executive Order shutting down indoor fitness centers. The hearing will come after Superior Court Judge Tim Thomason will rule on similar issues, so the question will be whether the two judges reach different conclusions on the very similar challenges.

Original article, 7/2/20: BREAKING: Rebellion of the (Boutique) Gyms, Part II: Federal Suit Filed Challenging Governor Ducey's Pandemic Shutdown Order (READ Complaint)

If Mountainside Gyms' Tuesday challenge against  Doug Ducey's order shutting down gyms was a power move, this federal court challenge filed against the Arizona Governor by Xponential Fitness is more of a stretch.
From Club Pilates, pre-pandemic

You may not have heard of Xponential Fitness, but they seem to be the Fox Restaurants of Arizona's fitness scene. They already have 50 fitness studios in Arizona - unlike Fox, they are franchises - in the niche areas of Pilates, cycle, dance, rowing, stretch and yoga.* They indicate they served 20,000 Arizonans last year and employed 750.

Like Mountainside's suit, Xponential is claiming that the Governor's Monday Executive Order requiring bars, gyms, water parks, movie theaters and tubing operations violates their constitutional rights to due process. It also notes that the Governor had previously permitted gyms to re-open if they put several safety measures into effect.

This suit also points out several ways that the Order is too vague. Specifically, it notes that the Order does not define " “[i]ndoor gyms and fitness clubs or centers”, what it means by "pause operations", and what kind of "form" needs to be submitted to be authorized to re-re-open. It also claims that the duration of the order is vague when it purports to run “until at least July 27, 2020.”

Xponential is represented by the national Venable firm, out of Los Angeles. Mountainside claimed to have partnered with the Goldwater Institute and is represented by Mesa firm Udall Shumway.

Lifetime Fitness, a national chain and another major player in the Phoenix market, has informed "AZ Law" that while they support these challenges, they are not attempt to legally join the court fight.

Many other fitness center chains and individual locations have abided by the Governor's Order, and Monday's hearing in the Mountainside case will be closely watched by all of the exercise facilities whether or not they are re-opened. (Not to mention the bars, the movie theaters, etc.)



*Pure Barre, Club Pilates, AKT (dance-based cardio), CycleBar, Yoga Six, Row House, and Stretch Lab.

"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.

BREAKING: Corporation Commission's Placing EPCOR In Charge Of Johnson Utilities' Operations Was Constitutional, Says AZ Supreme Court (READ Opinion)

The Arizona Corporation Commission did not exceed its constitutional authority in 2018 when it appointed EPCOR to serve as the interim manag...