Monday, October 26, 2020

Invest In Ed Did Not Violate (New) "Bait and Switch" Test In 100-Word Summary, Supreme Court Finds

 The Arizona Supreme Court decided that Invest In Ed's 100-word summary did not violate its "bait and switch" standard, and that is why they unanimously put the measure back on this year's ballot. The Court released its detailed opinion today (below), after announcing the result back in August.

The Supreme Court rejected the reasoning of the Superior Court Judge who had knocked it off of the ballot, but also acknowledged that their decision in removing the initiative from the 2018 ballot needed to be clarified. In 2018, they found that the proponents had fatally misrepresented the proposed tax rate increase, and that that was false and central to the measure.

This year, they found no such misrepresentations of "principal provisions" of the measure. And, the Supreme Court rejected Judge Christopher Courty's identification of five un-summarized provisions as principal.

In explaining their new opinion, Vice Chief Justice Ann Timmer - writing for the entire Court - boiled down the clarified test thusly:

Reasonable people can differ about the best way to describe a principal provision, but a court should not enmesh itself in such quarrels. If the chosen language would alert a reasonable person to the principal provisions’ general objectives, that is sufficient. Applying this reasonable person standard, the trial judge should ordinarily decide the sufficiency of a description without expert witness evidence. 

What constitutes a deficient description under § 19-102(A)? In recent years, we have described such deficiencies as those that are “fraudulent or create[] a significant danger of confusion or unfairness,” contain “untrue representations designed to defraud potential signatories,” or "obscure[]” a measure’s principal provisions or “thrust”.

We now rephrase these standards more precisely to assist both initiative sponsors in complying with § 19-102(A) and courts in deciding whether sponsors did so.

The court should disqualify an initiative from the ballot whenever the 100-word description either communicates objectively false or misleading information or obscures the principal provisions’ basic thrust. The latter can occur through the language used to describe the principal provisions or by failing to refer to key features of those provisions.

In other words, although sponsors are free to describe the measure in a positive way and emphasize its most popular features, they may not engage in a “bait and switch” in which the summary attracts signers but misrepresents or omits key provisions. In addressing challenges, a court should “consider the meaning a reasonable person would ascribe to the description.”

Elements of the business community that brought the unsuccessful challenge also have waged a costly political battle against the education funding measure. 

And, the fallout from the legal challenge reached the political side in another way, as well. The Democratic Party has urged the public to vote out Superior Court Judge Coury, solely as a result of his (reversed) decision in this case. (Arizona's Law published a guest commentary earlier today on that campaign.)


Molera v Hobbs II by arizonaspolitics on Scribd

"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.

GUEST COMMENTARY: Don’t play politics; retain Superior Court Judge Christopher Coury!

The political campaign to remove Superior Court Judge Christopher Coury has gained momentum. This is wrong, especially when it is based only on a sliver of evidence.

Arizona went to the judicial retention system to fix this politicization. Despite Judge Coury’s ruling in the Invest in Ed Initiative case, which Democratic literature claims was overly partisan, it is important to keep in mind that it was one opinion out of many.

From my personal experience observing Judge Coury’s courtroom during law school (while he was on the criminal bench), I was able to see a much different Judge Coury. I saw a fair, compassionate, and impartial judge who followed the letter of the law, and went above and beyond in faithfully executing his judicial duties. I learned a lot about criminal proceedings and the jury selection process because he took the time to explain and teach me.

I was further impressed by the weekly program for juvenile transfer offenders (JTOPS), which he ran. Through the JTOPS program, he helped to rehabilitate many juvenile offenders by offering them a chance to learn from their mistakes, staying out of the Department of Corrections system, and avoid recidivism. 

Overall, a judge's ruling in one case cannot possibly show a full and accurate representation of their ability to serve on the bench as a nonpartisan judge. I believe Judge Coury is an asset to the Maricopa County Court system and would be missed if he is unfairly voted out based on one ruling. 

(Aaryn Weich is a 2019 graduate of the Sandra Day O'Connor College of Law in Phoenix.)


"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, October 8, 2020

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 Court Judge extended it from Monday until October 23, because pandemic-related restrictions had impeded voter registration efforts. The Republican party immediately appealed, but the appellate judges expressed doubts that the Republican party had standing to defend the constitutionality of the statutory deadline.

Instead, the Order invites Attorney General Mark Brnovich to file its own Stay Motion by 5pm today, with briefing to be completed by Saturday night. The AG's Office asked to join the case Tuesday night after Secretary of State Katie Hobbs indicated that she would not appeal the extension. (The AG's Motion is below.)

The Order states "the panel has serious doubts regarding appellants’ ability as private parties to seek a stay in this appeal, including an administrative stay." It notes that Judge Jay Bybee - a Bush* appointment - would have granted the stay. (The other two judges are Clinton appointments.)

The Court also notes that it has not yet granted Brnovich's effort to intervene. The case was filed last week by pro-Democratic organizing group Mi Familia Vota, and only named the Secretary of State as a defendant. 

Mi Familia Vota v Hobbs - Ct Scheduling Order 100720 by arizonaspolitics on Scribd

Mi Familia Vota v Hobbs - State's Emergency Motion to Intervene by arizonaspolitics on Scribd




* This has been corrected to reflect that Judge Bybee was appointed by President George W. Bush, not Donald Trump.

"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.

Monday, October 5, 2020

BREAKING: Arizona voter registration deadline EXTENDED until October 23. READ Judge Logan's opinion

 In a stunning last minute decision, a judge extended Arizona's voter registration deadline from today until October 23. U.S. District Court Judge Steven Logan issued the ruling in a case brought by Mi Familia Vota mere hours before the statutory deadline of October 5.


For a very good (and, quick) article on the ruling, please see the article by Andrew Oxford.

Here is the ruling itself. There is no word yet on whether the state will appeal to the 9th Circuit.

2020 1005 MiFamilia -Ruling by arizonaspolitics on Scribd

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.

How AZ AG Brnovich Got To File "1st Lawsuit In the Nation" Against Biden's Yet-To-Be-Detailed Vaccine/Testing Mandate; The Double-Flip With A Twist (READ Lawsuit)

Arizona Attorney General Mark Brnovich boasted today about his "first lawsuit in the nation" status against the Biden Administrati...