Wednesday, March 31, 2021

READ OPINION: AZ Supreme Court Explains Why It Knocked Initiative Off Last Year's Ballot

 

 "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 is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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, March 26, 2021

NOW THAT'S WHAT I CALL A CONFLICT: Judge Brnovich Briefly Assigned To Hubby's New Suit Against Biden Administration (ARIZONA'S LEGAL SHORTS)

Arizona Attorney General Mark Brnovich yesterday sued the Biden Administration over the COVID-19 Rescue Package signed into law earlier this month. After asking for it to be re-assigned to a District Court Judge yesterday, Brnovich briefly had Judge Susan Brnovich on the case this morning.

(photo: Gage Skidmore)

Within hours of the random assignment, Judge Brnovich recused herself and the case was reassigned to Judge Diane Humetewa.

Brnovich (the AG) is challenging what they call a "plainly unconstitutional" provision of the new law that restricts a state's right to cut taxes if they accept COVID-19 relief funds provided in the package. As the action notes, there appears to be a difference between Congress's legislative intent (broad) and the more narrow prohibition which the Treasury Department seems poised to interpret/enforce.

Brnovich (the judge) was nominated to the lifetime position by former President Donald Trump - the first of five he nominated. Judge Humetewa was nominated by former President Barack Obama.

 "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 is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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.

Wednesday, March 17, 2021

NEW, BILTMORE GOLF COURSE WARS CONTINUE: Anti-SLAPP shot scores, Jerry Colangelo in penalty box and fined* (READ Decision)

As Jerry Colangelo - the godfather of Phoenix sports - is accompanying GCU to the NCAA men's basketball tournament this weekend, his company owning the Biltmore golf courses was slammed yesterday for bullying homeowners.

JDM Golf, which Colangelo owns with developers David Eaton and Mel Shultz, counter-sued the homeowners who are opposed to the expansion of non-golf activities permitted on the courses. Superior Court Judge Daniel Martin signed a judgment (below) dismissing the counterclaim and sanctioning JDM for $75,000 of attorneys' fees and penalties.

Colangelo's company - partly represented by well-known Phoenix attorney Leo Beus - claimed the owners of some of the multi-million dollar homes had defamed the company, invasion of privacy, breach of contract (and other claims). The HOA and neighbors moved to dismiss the counterclaim, saying (in part) that it violated Arizona's anti-SLAPP law. 

In that law, "SLAPP" stands for "Strategic lawsuits against public participation". Judge Martin was persuaded that the homeowners' actions opposing the golf course expansion by setting up websites, posting signs and filing this lawsuit were all part of petitioning the city of Phoenix.

Judge Martin agreed, and found that the counterclaim was filed for the "improper purpose" of trying to discourage such public participation. He dismissed the counterclaim with prejudice, awarded $62,598 in attorneys' fees and $12,520 in sanctions.

Jason Morris, one of the attorneys representing the neighbors, explains it to Arizona's Law this way:

 “The court recognized JDM Golf’s multi-count counterclaim against the homeowners for exactly what it is: an oppressive and meritless attempt to harass and intimidate Arizona citizens in order to discourage them from exercising their constitutional right to participate in civic engagement. Arizona’s anti-SLAPP statute exists to prevent precisely this kind of strategic suit by deep-pocketed special interests seeking to chill public debate. We appreciate the court dismissing JDM’s counterclaim and handing down a sizable financial penalty to dissuade JDM from attempting this kind of abusive action again in the future.”

The battle on the original lawsuit by the neighbors continues. And, JDM's proposal will be in front of the Phoenix Board of Adjustment tomorrow (Thursday).

* In addition to the Suns and the Diamondbacks, Colangelo was also instrumental in getting the NHL's now-Phoenix Coyotes to join the Canadian snowbirds who make the permanent move to the desert. 

"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 is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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, March 16, 2021

WATCH: New Videos Showing Jacob "QAnon Shaman" Chansley Entering Capitol, Helped Convince Judge To Keep Him Detained

 Last week, U.S. District Court Judge Royce Lamberth refused to release Mesa's Jacob Chansley from jail pending trial for his involvement in the January 6 insurrection at the U.S. Capitol. In part, he relied on unreleased videos of his actions referenced by prosecutors.

Yesterday, Lamberth ordered the clerk to make those videos available on the court's website. Here are those videos, showing Chansley (aka Jake Angeli, aka QAnon Shaman) on the scaffolding outside the building and entering the building as fellow rioters broke through the windows next to him.

The videos show the anger and the mob mentality, but were mainly used to show that Chansley was not "invited in" thinking that he was just going to observe Congress as they debated whether Arizona's Electoral College votes should be accepted.

 "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 is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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, March 15, 2021

BREAKING: AZGOP & Its Attorneys Must Pay Secretary of State's Attorneys Fees For Bringing "Groundless" Election Lawsuit, "Gaslighting"

The Arizona GOP and its attorneys must repay taxpayers more than $18,000 for attorneys' fees incurred in defending one of the several post-election lawsuits. Superior Court Judge John Hannah issued the 10-page minute entry this morning explaining why he found that the case - which was challenging Maricopa County's legal decision to audit 2% of vote centers rather than 2% of precincts - was groundless.

AZGOP attorney Jack Wilenchik had warned the judge that granting the fees would show more bias and that he should not dream of treading into dangerous First Amendment territory by imposing fees.

Hannah's minute entry, handed down slightly more than two months after briefing was completed, blasts the AZ GOP's counsel, noting that the lawsuit was filed late and that it named the wrong defendants (among other issues). Even so, counsel came up with reasons to justify the errors that the judge did not believe. "When a litigant resorts to that kind of sophistry, instead of simply admitting it made a mistake, it invites inquiry into its motives."

Hannah goes on to suggest that Wilenchik was trying to gaslight him. "The plaintiff is not characterizing either its litigation posture or the Court’s inquiry honestly. The Court’s questions addressed the plaintiff’s own arguments. For the plaintiff to suggest otherwise is gaslighting. It evinces a lack of good faith."

Finally, he blasts the AZGOP for abusing it "privileged position" in the election process. "Arizona law gives political parties a privileged position in the electoral process on which our self-government depends. The public has a right to expect the Arizona Republican Party to conduct itself respectfully when it participates in that process. It has failed to do so in this case."

UPDATE, 3pm: Arizona Mirror is reporting that the AZGOP and its counsel is planning to appeal today's decision. (Commentary: As someone currently involved in such an appeal of an A.R.S. 12-349 fee award, the AZGOP has a tough row to hoe ahead of it and is risking additional sanctions.)

Read the scathing decision 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 is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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, March 9, 2021

MAD DOG BAD, POLICE DOG GOOD: Murphy and His Officer Receive Qualified Immunity Against Excessive Force Claim (READ 9th Circuit Opinion)

A Gilbert police dog and his officer should receive qualified immunity from an excessive force claim, after biting a recalcitrant drunk driver. That was the opinion of 9th Circuit judges this week.

Murphy (a Dutch Shepherd who has since retired*) was ordered to bite Scott Hernandez only after the intoxicated driver failed to immediately pull over, had resisted getting out of his car and officers had gradually (tugging, pepper spraying, etc) escalated their efforts. Murphy did not try to pull Hernandez out of the car, and the driver continued to resist even after Murphy had held on to his arm for 50 seconds before releasing (upon command).

The 9th Circuit panel unanimously affirmed Judge Susan Brnovich's decision granting Murphy's officer qualified immunity. The 15-page opinion details the interaction that led to Hernandez's excessive force claim against the town of Gilbert and Officer Gilbert**, and then analyzes how the plaintiff could be successful: "To defeat qualified immunity, Hernandez must show that the state of the law as of May 5, 2016, gave a reasonable officer “fair warning” that using a police dog on a noncompliant suspect, who had resisted lesser methods of force to complete his arrest, was unconstitutional."

Although Judge Richard Tallman - writing for a panel which included Bridget Bade of Arizona - searched hard for a case "on all fours", the facts in this case were slightly different from previous 9th Circuit decisions. They found that the officers had been reasonable, given Hernandez's repeated refusals to comply. 

Not only did Tallman drop in the "on all fours" legal term, but without comment noted that the chain of events had begun with Hernandez sharing too many drinks at the local saloon. It is unlikely that Hernandez could imagine ending up in front of the 9th Circuit when he was with his friends at the (now closed) Mad Dog Saloon.

Good dog, Murphy.

*We have not yet received confirmation that the retirement was not related to this relatively benign incident. 

**Really, Officer Steve Gilbert is (still) part of Gilbert Police Department's K-9 Unit.

"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 is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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.

Arizona Should Prioritize People with Disabilities for COVID Vaccines - Like Other States (GUEST COLUMN)

 (This Guest Column is contributed by Kara Karlson, disability advocate and election law attorney.)


Arizona has administered over 2 million COVID-19 vaccines.  This is a huge milestone and great news.  Unfortunately, despite promises from state leaders that the most vulnerable would be prioritized, pleas from multiple disability advocacy organizations have so far fallen on deaf ears.  The failure to vaccinate our most vulnerable should (and can) be rectified immediately.  It is the morally right thing to do, it saves taxpayer dollars, and would be simple to administer. 

 

COVID-19 Disproportionately Affects People with Disabilities

 

COVID-19 poses a disproportionate burden on people with intellectual and developmental disabilities.  People with disabilities may be more likely to be infected with COVID-19 because many require care from people outside the home, use mass transit, or work jobs without a telework option.  We know that children (0-17 years old) with intellectual and developmental disabilities (“I/DD”) are significantly more likely to be diagnosed with COVID-19 than other children.


 People with intellectual and developmental disabilities are also much more likely to suffer adverse outcomes than people without disabilities.  Evidence early in the pandemic indicated that people with intellectual and developmental disabilities were two to three times more likely to die from COVID-19.  This early finding has been repeatedly confirmed by independent research.  Arizona recently prioritized vaccination for people with Down’s Syndrome, who are ten times more likely to die from COVID-19.  This is a step in the right direction, but it leaves many others in the disabled community unprotected.

 

The increased risk of death is most marked in children with intellectual and developmental disabilities, who are ten times more likely to die from COVID-19 than other children.  The increased likelihood of death for children, who can’t yet get vaccinated, makes it very important that their caretakers are prioritized.  Despite the clear and urgent need to prioritize people with I/DD, they are not currently a priority for state health officials. 

 

Savings to the State

 

In addition to being the right thing to do for people with disabilities, it is also the right thing to do for Arizona’s taxpayers.  Care for people who are hospitalized with COVID-19 is costly, and often includes long-term ICU care.  This care is more expensive if complicated by other health conditions that many people with I/DD have.  On the other hand, COVID-19 vaccines cost between $10 and $30 per dose.  A growing number of other states have recognized the value of prioritizing people with I/DD for COVID-19 vaccines, and Arizona should join their ranks. 

 

Verifying Eligibility

 

A simple way to verify eligibility for vaccination would be to allow people 16 years of age and older (or caregivers to younger DDD members) use their Division of Developmental Disabilities (“DDD”) insurance card to be vaccinated. 


To be a DDD member, a person must be diagnosed with at least one of the following disabilities:  cerebral palsy, epilepsy, autism, or intellectual disabilities.  In addition to the diagnosis, a member must have “significant limitations in daily life skills” such as an inability to communicate, requiring significant help with bathing, and needing daily supervision for their safety.  DDD members are significantly more likely to have multiple comorbidities that make them more susceptible to severe COVID-19. 

 

The state vaccine portal already requires anyone who is registering for an appointment to provide their insurance information.  DDD Members have unique Member IDs, and the group name “AZDDD” on their insurance card immediately identifies them as a DDD Member.  The state portal should recognize DDD Members and allow them to make an appointment for a COVID-19 vaccination.  Alternatively, the member could show their insurance card at the vaccination site.    

 

Call to Action

 

Under the current vaccination schedule, thousands of Arizona’s most vulnerable people remain susceptible to a virus that could kill them or add health complications to a population already coping with significant, chronic health conditions.  The new age-based approach taken by the state in some ways exacerbates this disparity.  There is no scientifically-based reason a healthy middle-aged person should qualify for vaccination before a person with severe developmental disabilities.  Given the increased risk of hospitalization and death DDD Members face as a result of their disabilities—and the fact that the infrastructure exists to allow the state to reserve these vaccines for those who qualify—there is no excuse to not prioritize DDD members for COVID-19 vaccines. 

 

If you want to help make a difference for people with I/DD, please join the Momvocate community.  We need everyone involved, and contacting their government health and elected officials, to make a difference.  


(Kara is the mother of two vivacious daughters, disability advocate and member of the Arizona Developmental Disabilities Advisory Council, election law attorney, and Arizona Pioneer descendant. Arizona's Politics and Arizona's Law publish guest commentaries from time to time. If you have something on your mind that would be of interest to our readership, please inquire within. Better yet, send an email to "Paul.Weich.AZlaw @ gmail.com".)

"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 is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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: Shooter Can't Butt In As AZ Supreme Court Considers Whether Mesnard Had Legislative Immunity In Discussing Sexual Harassment Investigation

Former Arizona Rep. Don Shooter tried to supplement his counsel's arguments to the Arizona Supreme Court, but was rebuffed. The brief interaction occurred after the Justices grilled both sides about whether former House Speaker J.D. Mesnard had immunity while expelling Shooter for sexual harassment charges.

Shooter claims that Mesnard defamed him and lost his legislative immunity when he edited and released the investigative report in 2018, and when he then issued a press release explaining his actions to expel. Mesnard's counsel told the Justices that "he was Speaker and he was doing something that is immediate" and therefore the absolute immunity should apply to both the report and the release.

The one thing that both attorneys seemed to agree on, albeit for different reasons, is that Mesnard did not get special immunity coverage because of his role as Speaker. Several of the Justices pressed the idea, and Justice Bill Montgomery finally told a very hesitant Stephen Tully (representing the Mesnards) that "these aren't gotcha questions".

Philip Byler represented Shooter and tried to emphasize that Mesnard was "making it up (as he goes along) and that's why he should not be having immunity." Justices seemed equally frustrated with many of his responses, and Byler closed by warning the Court that "the facts of this case are pretty ugly - do you want that absolutely immune?"

Justice Ann Timmer repeatedly asked why the press release should not be covered by the Arizona Constitution's immunity provisions, and mused whether Shooter's position would force Arizonans to watching hours of ACTV (Arizona Capitol Television) to know what their lawmakers were doing.

Chief Justice Robert Brutinel thanked the attorneys at the close of arguments. Shooter then started speaking up, although it was not audible on the livestream. Brutinel shut him down, saying "I'm sorry, Mr. Shooter, we are not going to hear from you, sir." (Shooter can be seen moving down to the front row during Tully's arguments, above.)

Shooter is primarily represented by Tom Horne, a former Arizona Attorney General. Tully also presently represents state Senate Republicans in the November election audit wars with Maricopa County.

The video from the oral arguments can be watched here.

There was no decision below on whether Mesnard actually defamed Shooter in his characterization of the report. This appeal is strictly on the immunity issue. The decision will be made by five of Arizona's seven Justices, as both Andrew Gould and James Beene did not participate.

"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 is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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, March 8, 2021

BREAKING: Chansley Will Stay In Jail On Jan. 6 Charges, GI Distress Notwithstanding

 (details to follow)

***

NEW: Errant ED Prescription Handling Gets Pharmacy In a HIPAA Trouble With The Arizona Supreme Court (READ Opinion)

All joking aside, pharmacies have to be extra-careful when they're handling prescriptions to treat ED - whether the scrip was errant or not. In a unanimous opinion from the Arizona Supreme Court today, Costco cannot get a lawsuit for negligent disclosure of health information quickly dismissed just because the plaintiff did not allege that the pharmacy acted in bad faith when they asked his ex-wife if she wanted to also pick up an already-canceled ED prescription.

Arizona law provides healthcare providers a good faith exemption from being liable for improperly disclosing medical information. But just because the man did not allege bad faith or rebut the presumption of good faith in his Complaint does not allow the judge to immediately toss it. In this case, that is what the Superior Court judge had done and what the Court of Appeals had approved.

This case arose from a series of errors - whether good faith or not. The plaintiff's healthcare provider had given the patient a sample of a ED treatment and had refilled a different prescription. However, just in case, scrips for both were sent to the pharmacy. The patient canceled the ED prescription. The next month, he called in and re-canceled it, and the next day he asked if his ex - who he was exploring reconciliation - could pick up his *regular* prescription. The eager pharmacy tried to give the ex-wife both the regular and the canceled prescriptions, leading to both joking at the pharmacy and to her deciding not to reconcile. 

As if that was not enough, the ex told their children and friends about the incident. And, Costco acknowledged to the man that they had violated his HIPAA privacy rights.

Nonetheless, the man did not make any allegations of bad faith in his Complaint. And, Costco claimed that that means he admitted that they qualify for Arizona's immunity based on the presumption of good faith.

Writing for five members of the Court*, Justice Bill Montgomery said a plaintiff does not need to anticipate an affirmative defense to withstand a motion to dismiss, and that discovery may shed light on whether or not there was good faith.

The Court could have stopped there, but decided to provide some guidance - for this case and others - on what constitutes "good faith" in Arizona's immunity statute. Citing previous cases, you need an “honest belief, the absence of malice and the absence of a design to defraud or to seek an unconscionable advantage.”

Given the facts of the case and the ex-wife's reaction, that may be the Supreme Court's way of saying "yes, you won this appeal and we didn't dismiss the case. But, it may be time to move on."

* Justices Gould and Beene recused themselves... for reasons unclear.

 "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 is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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, March 4, 2021

BREAKING: Arizona Supreme Court Accepts GOP/Goldwater Institute's Challenge Of Successful #InvestInEd Proposition

BREAKING: The Arizona Supreme Court is using its discretion to immediately accept the appeal of the 

@GoldwaterInst's challenge of the Prop. 208 #InvestInEd tax surcharge to fund education.

Perhaps confusing it with the other Proposition that was passed, the Supreme Court has set oral arguments for 4/20.

***

Here is our article on the Superior Court's decision denying the challengers' request for an injunction: https://bit.ly/AZlaw1150

Judge Hannah's decision was appealed to the Court of Appeals. However, the plaintiffs/appellants asked the Supreme Court to exercise its discretion to skip that intermediate step.

“Today’s order shows that the Supreme Court understands how important these constitutional challenges are,” said the Goldwater Institute's Timothy Sandefur (Vice President for Litigation) . “Rather than having the case go through the slower procedures for appeals, the Court announced that it will hear the case right away.”


 "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 is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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.

Wednesday, March 3, 2021

BACK AT ME: Finchem/Kern File Defamation Lawsuit Against Dem Colleague, Also Open Civil Investigation Into Own Roles In Jan. 6 Capitol Violence (READ LAWSUIT)

Two current and former Arizona State Representatives who were in Washington for the January 6 activities have filed a defamation lawsuit against a Democratic colleague, thus opening themselves up for a civil investigation into their own activities.

The Complaint filed Friday in Yuma County Superior Court against Rep, Charlene Fernandez was first reported yesterday by Arizona Capitol Media's Howard Fischer and the Republic's Andrew Oxford

Rep. Mark Finchem and former Rep. Anthony Kern claim that Fernandez spearheaded a letter signed by many of her Democratic colleagues, asking the U.S. Department of Justice (and FBI) to investigate the Finchem and Kern activities related to the January 6 insurrection. They also say she has personal animus against Kern because he held her bills in the Rules Committee.

In January, we reported that attorneys for Rep. Andy Biggs (R-CD5) had sent a letter to former opponent Joan Greene, threatening a defamation suit for social media posts she made about his January 6 activities. After Greene's counsel memorably replied, no suit has been filed.

 "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 is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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, March 2, 2021

Arizona's Ballot Harvesting Ban, Nation's Voting Rights Act Both Hang In Balance; LISTEN/READ Supreme Court Oral Arguments In AZ Elections Case (NEWS ANALYSIS)

Today's oral arguments in the U.S. Supreme Court lived up to the hype, as the justices grilled Arizona's Attorney General and counsel for the Secretary of State and both major parties about Arizona's voting laws and the nation's Voting Rights Act. After all of the arguments, the outcome of the case looks like it could end up somewhere in between what the opposing parties want.

Arizona's Law provided live-tweeting with Chandler trial(!) attorney Tom Ryan, and provide news analysis* here. We also urge you to read and/or listen to today's arguments, and have provided both the audio and the transcript at the bottom of this article.

As we discussed this morning, the long and winding road of this case started back in 2016, a couple of years after the Supreme Court had freed Arizona and other states - those that had had a history of discrimination against minority voters - from pre-clearing new laws through the U.S. Department of Justice. Arizona passed a ban on turning in early ballots from people not in your family, and the Democratic party challenged it. 

That challenge was paired with another 2016 case challenging Arizona law throwing out the entire ballot when cast Outside Of the voter's Precinct ("OOP"). Both disproportionately impacted Arizona's minorites, the Democrats claim.

Perhaps the most startling moment of today's arguments came when Justice Coney Barrett asked the AZGOP attorney why the Republican Party was in this case, and Michael Carvin replied bluntly, "It puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game and every extra vote they get through unlawful interpretations of Sxn 2 hurts us." (In our live-tweeting, that prompted an immediate "bad answer" reaction.)

AZAG Mark Brnovich chose to handle the high-profile arguments himself, and more than held his own under the rapid-fire round-robin questioning from the nine Justices. (A previous AZAG probably regretted not handing off that 2013 election law case, though.)

Brnovich twice urged the Justices to keep in mind that Arizona offers a "plethora" of voting opportunities, and that the totality of those options may blunt the impact if one law or another creates a burden for minority voters.

As Ryan bluntly put it, "his responses were shameful as it related to the "plethora" of voting options in the State of Arizona. Yes, but his own party is out to gut that "plethora" and there is a high likelihood they will be passed and enacted into law." (Ryan is referring to a plethora of bills currently percolating through the GOP-controlled legislature.)

Secretary of State Katie Hobbs (D) was then represented by outside counsel Jessica Amunson, and the Democrats by Bruce Spiva. They were asked repeatedly - by Chief Justice Roberts and Justices Gorsuch and Kavanaugh - about the Carter-Baker Commission which had identified ballot collection efforts to be a possible point of weakness for fraudulent conduct.

Amunson and Spiva both argued that Arizona's Legislature had not considered that when passing the ban, and that Arizona already had a law criminalizing any fraudulent conduct with ballots. The most spirited exchange on the subject occurred between Gorsuch and Amunson and can be found on pages 83-86 in the transcript below.

Priya Sundareshan, the Chair of the Arizona Democrats' Election Integrity Committee, told Arizona's Law afterwards that she thought it went well. "Voting access is fundamental for citizen participation in democracy. The laws at issue in the case heard today would unnecessarily restrict voter access using the cover of election integrity (which has been validated multiple times these last few months). We hope the Supreme Court removes these barriers to voting and does not further damage the Voting Rights Act."

It is possible, however, that the Justices fashion a resolution which will make neither side completely happy. In fact, some of the Justices - especially Chief Justice Roberts and Justices Coney Barrett and Kavanaugh - seemed to be looking for a way of finding in favor of the Republicans' ballot harvesting ban (and, even the somewhat less partisan OOP policy) but in a narrow way which would still leave some teeth in Section 2 of the Voting Rights Act.

Ryan pointed out the bit of hypocrisy in the postion the Justices face themselves. "We would not be here today if the U.S. Supreme Court had not gutted Sec. 5 of the Voting Rights Act in the Shelby County v. Holder decision in 2013. Sec. 5 of the VRA required the Dept of Justice to pre-clear voting law changes in states where there had been a history or pattern of voter discrimination against protected classes of citizens. Experienced and trained attorneys in the DOJ knew when a covered state was acting to violate the voting rights of a protected class. Sec. 5 placed the burden on covered states to prove there was a non-discriminatory animus in any voting law change. Once the Court in Shelby County determined Sec. 5 was no longer needed (apparently thought racial hatred was now so passe) it moved the protection of voting rights to the Courthouse under Sec. 2.  For five decades Sec. 5 worked just fine. But now we may see the Supreme Court in Brno v. DNC make mince meat out of even Sec. 2."

As we jokingly answered on Twitter this morning, the Supreme Court's decision should be handed down this Friday. In reality, however, because this has shaped up to be one of their most significant and possibly closely-divided cases of the term, chances are that it will be among the few released near the end of their term in May or June.

* "News analysis": Arizona's Law and Arizona's Politics are independent, non-partisan political news blogs.  When we engage in analysis or commentary, we attempt to label it as such.  This article may be classified as "news analysis" because it attempts to "provid(e) interpretations that add to a reader's understanding of a subject."


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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. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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, READ: Arizona Supreme Court Upholds Workers Comp For Sheriff's Deputy Survived Shootout, Suffered PTSD

The Arizona Supreme Court handed down a unanimous decision today affirming that a Gila County Sheriff's Deputy forced to retire because of PTSD after facing down a man with a shotgun and killing the man.

The ruling reversed the finding of the Adminstrative Law Judge and the ICA, which the justices said focused too much on the deputy's training and not the "exceedingly rare" shootout itself.

The Court's Opinion, authored by Justice Andrew Gould, emphasized the difference:

It is axiomatic that law enforcement officers are trained to respond to welfare checks, and that during such calls there is a possibility they might encounter a violent situation. But here, the specific work-related event that caused France’s injury was the attack on France and his subsequent shooting and killing of the gunman. The record in this case shows that this type of encounter by a law enforcement officer is exceedingly rare.

The Arizona Republic's Joshua Bowling first reported on the case and the practice of denying compensation, and has much more on the situation here

 

"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 is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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, March 1, 2021

LIVE: U.S. Supreme Court Hears Arguments On Arizona's "Ballot Harvesting" Ban, As Nation Watches Impact On Voting Rights

 Arizona's law banning so-called "ballot harvesting" is back in front of the U.S. Supreme Court for oral arguments on Tuesday, and this time the entire nation is watching to see what impact the decision will have on voting rights around the country.

Chandler attorney Tom Ryan will be joining Arizona's Law on Twitter at 8am to discuss the oral arguments as they are taking place (aka live tweeting), and we will be posting the audio and transcripts later once they become available. (If you are so inclined, you can listen along with us. Thanks, C-Span)

Although a lot of the national coverage has been indicating that there are TWO cases being argued tomorrow, in fact there is only one. Arizona Attorney General Mark Brnovich and the Arizona Republican Party *separately* appealed the same 9th Circuit decision finding Arizona's "ballot harvesting" law to be unconstitutional. The AG's Office told Arizona's Law at the time that it had not been in communication with the AZGOP, which would explain the multiple appeals. The Supreme Court eventually consolidated the appeals and will hear from both the AG's and the AZGOP's counsel.

The "ballot harvesting" ban passed by Arizona's Legislature and signed into law by Governor Doug Ducey in 2016. It prohibits anyone from turning in early ballots on behalf of anyone who is not a family member (among other exceptions).

Tomorrow's oral argument may also touch briefly on Arizona's law preventing counties from counting "out of precinct" ballots. Several Arizona counties still use precinct-based polling locations, and state law prevents them from counting ballots cast by someone who does not presently live in that precinct. (Maricopa County and several other counties have "vote centers", which eliminates that problem.)

These two different issues were the subjects of cases in two separate Democratic legal challenges in 2016. In the week before the November election, the 9th Circuit issued decisions in both - causing not a little concern, confusion and chaos. For example, there were approximately 24 hours where ballot harvesting could not be prosecuted by the state; the U.S. Supreme Court promptly stopped the 9th Circuit's decision, based on the proximity to the election. (That's the Purcell Principle, named from a previous Arizona election law case that made it to the Supreme Court.)

The present case stems from those challenges developing after the 2016 election, and finally getting to this point.

Arizona's Law and Arizona's Politics have been covering the challenges to this law for more than four years now, posting opinions, briefs and other news coverage. To catch you up, here are summaries from some of those articles.

This article is critical: it is when the 9th Circuit last year determined that the ballot harvesting ban was passed by the Legislature with the intent to discriminate.

The November 5, 2016 bulletin where the U.S. Supreme Court put the ban back into place for the following week's election.

Just the day before, the 9th Circuit had stayed enforcement of the ban.


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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. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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: U.S. Supreme Court Strikes Out AZGOP - Won't Hear 3rd (& Final?) Election Fraud Lawsuit; Arizona Kraken Lives In 9th Circuit

For the 2nd consecutive week, the U.S. Supreme Court brusquely refused to hear an election fraud case from the Arizona GOP. Today's declination was of the so-called "Arizona Kraken" case, and marks the 3rd SCOTUS strikeout for the AZGOP and Chairwoman Kelli Ward.

However, like many mythical sea creatures, this Kraken is apparently still - just barely - alive. This attempt to sue Republican Governor Doug Ducey in federal court to "de-certify" the election results in favor of now-President Joe Biden was based on a series of conspiracy theories alleging widespread fraud. It sunk miserably in District Court, when Judge Diane Humetewa dismissed it after two hearings, calling it "gossip and innuendo".

The team of Trump-associated attorneys led by Sidney Powell promptly appealed the case to the 9th Circuit and asked the U.S. Supreme Court to issue an order ("mandamus") to Ducey*. Even though the Supreme Court refused to hear the appeal, the 9th Circuit - without such discretion - is still waiting to receive briefings from the parties. 

In January, the Supreme Court declined to hear the AZGOP's effort (with Rep. Louie Gohmert) to sue then-Vice President Mike Pence to stop the January 6 certification. Last week, the Justices declined to accept Kelli Ward's appeal of the state court election contest.


*Yes, this was one of several oddities and problems - procedurally as well as substantively - of the Kraken case - Ducey was one of several Arizona officials who certified the election; the Trump electors did not name the others.

"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 is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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...