UPDATE - TRYING TO UNTANGLE ARIZONA'S ABORTION KNOT: Doctors Tell Judge Why Arizona's 2021 Abortion Ban Must Be Stopped In Light Of Renewed 1864 Ban (READ Motion)

 Abortion providers and advocates - and, their attorneys - continue to press multiple judges to help untangle the knot of overlapping abortion bans created in the wake of the U.S. Supreme Court's Dobbs decision. Today, providers filed a Supplemental Brief explaining why last Friday's renewed 1864 abortion ban means that the 2021 partial ban needs to be stopped.

This 2016 editorial cartoon should be updated to reflect AZ's current situation

U.S. District Judge Douglas Rayes asked for the new briefings from both sides in light of the Pima County Superior Court decision putting the pre-Roe near-total ban back on the books. Today's filing from Drs. Paul Isaacson and Eric Reuss (along with the National Council of Jewish Women - Arizona, the Center for Reproductive Rights, others) explains that "as Arizona state courts continue to consider the impact of the pre-Roe Ban, it is 'likely' abortion services in the state will continue to start and stop and start again, as they have for the past three months. And...there is a substantial likelihood the Reason Scheme will continue to inflict significant and ongoing irreparable harms."

The Isaacson v. Brnovich case attempts to stop last year's two-pronged anti-abortion law prohibiting abortion procedures begun because of genetic anomalies and adding a "Personhood" provision from the moment of fertilization. (The personhood provision was enjoined.)

Planned Parenthood has also asked Pima County Judge Kellie Johnson to put a stay on her decision pending an appeal that has been filed with the intermediate Arizona Court of Appeals. That has been briefed and is awaiting her decision. (A Motion has also been filed at the appellate level.)

Arizona Attorney General Mark Brnovich has until October 5 to file his response, with a reply by October 7.

Meanwhile, the new 2022 15-week abortion ban went into effect this week. Planned Parenthood has argued that the 1864 ban must"be harmonized with the legislature's subsequently enacted scheme of regulation for abortion providers" and therefore the 1864 ban should not be applied to licensed physicians authorized to provide reproductive healthcare under the statutes and regulations. And, while all this is being sorted out, Arizonans needing reproductive healthcare are being impacted on a daily basis.

Here are the recent filings:

This article was reported by AZ Law founder Paul Weich. Paul was running for a seat in Arizona's House of Representatives.

"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.

Pima County Judge Puts Arizona's Territorial-Era Abortion Ban Back Into Play, Invites Planned Parenthood To Amend 1973 Complaint (READ Decision)

 A Pima County Superior Court Judge today put Arizona's Territorial-Era abortion ban back into effect, further muddying the reproductive rights of Arizonans following the Supreme Court's scuttling of Roe v. Wade.

Today's decision grants relief from the 1973, post-Roe decision enjoining the ban (which dates back to 1864). Judge Kellie Johnson determined that she had to grant relief from that 1973 judgment - the parties all agreed that the Dobbs decision was a significant change of law warranting relief.

However, the parties did not agree on what she should do after granting relief. Current Attorney General Mark Brnovich had argued for just letting the law go back into effect. Planned Parenthood - which had brought the 1973 case - said that Judge Johnson should modify the injunction to take into account the anti-abortion laws which the state has passed since then, including the one going into effect TOMORROW.

Judge Johnson decided the procedural process did not allow her to do that analysis, and she invited Planned Parenthood to now amend their original 1973 Complaint and ask for a new injunction.

It is not yet clear whether Planned Parenthood will take up that invitation, appeal the decision, file a new case against the total ban, or focus their attention elsewhere.

This article was reported by AZ Law founder Paul Weich. Paul was running for a seat in Arizona's House of Representatives.

"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.

NEW: $21M Jury Verdict For Former Gubernatorial Advisor Kunasek UPHELD By Appeals Court (READ Opinion)

Utility magnate George Johnson thought he had bought political influence when he included gubernatorial advisor/Maricopa Supervisor/friend Andy Kunasek in a multi-million dollar trust. Instead, it will cost him $21M.

When Kunasek declined to intervene in an Arizona environmental investigation for him, Johnson stripped the trust to punish Kunasek.

Kunasek won a jury verdict for $10.5M in compensation damages, plus an additional $10.5M in punitive damages. Yesterday, the Arizona Court of Appeals AFFIRMED the judgment.

Kunasek, a Republican Supervisor until 2016, was also an advisor to Governor Jan Brewer. Shortly after Johnson set up the trust, he asked Kunasek to help quash a state environmental investigation into improper waste disposal practices in Pinal County. Kunasek refused, and he mysteriously stopped receiving distribution payments from the trust soon thereafter.

Johnson challenged the $21M verdict on several grounds; the Court of Appeals was having none of it. In their unanimous 22-page decision authored by Chief Judge Kent Cattani, the challenges to the jury's decision on the penalties and that the statute of limitations had not run were systematically disposed of.

Johnson no longer owns Johnson Utilities - the Corporation Commission ordered EPCOR to take over the company several years ago, and they subsequently purchased it - but Johnson (now, 90 years old) owns or controls several Arizona developments. Johnson had also been indicted and accused of bribing a Corporation Commissioner, but that case resulted in a mistrial. was dismissed.

No word yet on whether Johnson will ask the Arizona Supreme Court to rule otherwise.

Correction: We initially described the Johnson bribery case as being dismissed. It ended in a mistrial and prosecutors did not re-file.

This article was reported by AZ Law founder Paul Weich. Paul was running for a seat in Arizona's House of Representatives.

"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: Kelli Ward Case To Block Jan. 6 Committee Subpoena of Phone Records Is DISMISSED (READ Order Dismissing)

UPDATE, 9/23, 9:00am: To noone's surprise, Kelli and Michael Ward have filed their Notice of Appeal of last night's dismissal. The appeal will be heard by the 9th Circuit Court of Appeals. They have not yet filed a motion to halt enforcement of the subpoena pending appeal, although that is likely their next filing.

The House's January 6th Select Committee won a victory tonight when an Arizona judge tonight DISMISSED a case filed by AZGOP Chair Kelli Ward and husband/fake elector Michael Ward to block a subpoena of their cellphone records from T-Mobile.

The Committee sought information as to whom the Wards had communicated with during the period when Arizona Republicans were planning to convene their slate of electors to support the contention that Donald Trump may have won Arizona's electoral votes. 

The case to block the subpoena was filed in February.

U.S. District Judge Diane Humetewa determined that the Wards did not prove that the court had jurisdiction over the Congressional Committee in this case, and that there was no "viable claim" against T-Mobile to force them to not comply with the subpoenas. 

The Wards had also claimed that turning over the phone records would violate HIPAA privacy protections of their patients; Humetewa decided that did not apply to T-Mobile and that the Wards could have sought confidentiality agreements but did not.

Here is the Court's 18-page Order dismissing the case:

This article was reported by AZ Law founder Paul Weich. Paul was running for a seat in Arizona's House of Representatives.

"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.

NEW: "A Bar Too High": AZ Supreme Court Expands On Why It Didn't Kick Off Stop Dark Money (Prop. 211) Initiative (READ Opinion)

 The Arizona Supreme Court today released its more complete reasoning in why it previously ordered the Stop Dark Money initiative to be placed on this November's ballot (as Prop. 211).

In late August, just before ballot printing was to begin, the Court ruled that citizens' initiatives Stop Dark Money (aka Voters' Right To Know Act) and the Predatory Debt Collection Protection Act (Prop. 209) could be placed on the ballot. As is typical in these expedited election appeals, the Court promised full written opinions were to follow.

Today's Opinion, written by Vice Chief Justice Ann Timmer and agreed to by all of the other Justices, explains their reasoning on the two appealed issues. First, they decided that paid circulators' petitions should not be disqualified simply because they did not list a unit number on their residence address (when they registered as paid circulators). The Court found that the Legislature would have included that requirement if they had wanted to and that most challengers would serve subpoenas on the initiative's committee, anyway.

The bigger issue was another technical one dealing with paid circulators' registrations. The Legislature had required them to file a new affidavit for each different initiative they worked for. However, the Legislature also set up the process for the Election Procedures Manual to have the effect of law. In 2019, the Secretary of State, Governor and Attorney General all signed off on an EPM that allowed the Secretary of State to set up the registration portal for the circulators. That portal does not permit them to submit more than one affidavit.

The Court found that that was wrong. However, they refused to strike all of the circulators' gathered signatures because of it, saying that would be unfair to the committee and the citizens who signed.

Challengers assert we should not excuse the Committee’s noncompliance with § 19-118(B)(5) because it could have submitted new affidavits by mail or email, even if the Secretary would have rejected them, or sought a court order forcing acceptance. This is a bar too high. The legislature required the Committee to follow the Secretary’s procedures, see § 19-118(A), and the Committee did so. Disqualifying signatures for adhering to the Secretary’s registration requirements would be tantamount to blessing a trap laid for unwary sponsoring committees. (Emphasis added)

 

This article was reported by AZ Law founder Paul Weich. Paul was running for a seat in Arizona's House of Representatives.

"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: Kari Lake/Mark Finchem APPEAL Dismissal Of Their Quixotic Suit To Require Hand Count Of Ballots

 Although the judge dismissed it for multiple reasons, candidates Kari Lake and Mark Finchem are appealing and asking the Ninth Circuit to reinstate their case to require a hand count of this coming election's ballots. 

Lake and Finchem filed a Notice of Appeal this afternoon. On August 26, U.S. District Court Judge John Tuchi dismissed the entire case, determining that "Plaintiffs lack standing because they have articulated only conjectural allegations of potential injuries that are in any event barred by the Eleventh Amendment, and seek relief that the Court cannot grant under the Purcell principle."

The Purcell principle - U.S. Supreme Court guidance that courts should be very reluctant to rule on cases in ways that might create changes for an impending election - makes it extremely unlikely that the Ninth Circuit would step in and require a massive Arizona hand count this year. (The now-famous Purcell principle was handed down in a case involving then-Maricopa County Recorder Helen Purcell.)

Of course, a Ninth Circuit reversal would seem extremely unlikely even if the election was not only 7 weeks away. As Chandler attorney Tom Ryan reacted, "It has no chance in hell of success!"

The appeal might also serve to put some new juice into Maricopa County's Rule 11 Motion for Sanctions against Lake, Finchem and their attorneys. Lake is running for Governor and Finchem for Secretary of State. (Nationally-known Alan Dershowitz is among the legal team.) The Republican-led County filed the motion because of the plaintiffs' repeated claims that Arizona needs to use paper ballots. We already use paper ballots.

That Motion was filed shortly before the dismissal of the case "in its entirety" and Judge Tuchi has not taken any action on it since. (Arizona's Law had been making inquiries earlier today about the status of the Motion.)

This article was reported by AZ Law founder Paul Weich. Paul was running for a seat in Arizona's House of Representatives.

"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 (BUT NOT SURPRISING): Demand To RE-RUN AZ's 2020 Presidential Election REJECTED By AZ Supreme Court (READ Order, Pleadings)

The Arizona Supreme Court has DISMISSED the latest attempt to "decertify" Arizona's 2020 Presidential election and to re-run it. The 4th attempt by "We the People" individuals to take their case directly to the state's highest court was rejected the week after it was filed.

The Order is authored by Duty Justice Ann Timmer, but she notes that the entire court "observes that Petitioners have cited no authority for the proposition that they or anyone else may overturn the Arizona statutes that govern both the conduct of elections and the challenges to the results of such elections. Likewise, they cannot dictate the terms of a proposed effort to 'rerun the 2020 presidential election,' which was certified almost two years ago."

The Court also - again - points out that election contests have to take place immediately after the results are known.

Daniel Wood and two others filed this latest effort against Governor Doug Ducey, Attorney General Mark Brnovich, Secretary of State Katie Hobbs and Supreme Court Chief Justice Robert Brutinel, saying that they illegally certified the results of the 2020 election, which found that Joe Biden received more votes than Donald Trump. They also asked the Court to allow them to hire a Tennessee attorney living in Florida to represent them, because they could not find any Arizona attorneys willing to risk their ability to practice law in Arizona.

One of the previous Woodie efforts was to replace selected elected officials with the then-anonymous Wood and other supporters.

This article was reported by AZ Law founder Paul Weich. Paul was running for a seat in Arizona's House of Representatives.

"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.

NEW: 9th Circuit Says Arizona's Medicaid Program Can't Categorically Refuse To Reimburse Community Health Centers For Adult Chiropractic Services (READ Opinion)

The 9th Circuit Court of Appeals cracked the case today. In so doing Arizona's Community Health Centers won a battle against the state's AHCCCS system when the 9th Circuit ruled that Arizona's Medicaid program cannot categorically refuse to cover chiropractic services for adults.

The unanimous Opinion REVERSES the lower court's decision to dismiss that part of the health centers' lawsuit. District Court Judge Jennifer Zipps also must further look at AHCCCS' exclusion of some dental, podiatry and optometry services.

This article was reported by AZ Law founder Paul Weich. Paul was running for a seat in Arizona's House of Representatives.

"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: Arizona's 2021 Anti-Abortion Law Is In Place, Judge DENIES Injunction Against Genetic Abnormality Provision (READ Order)

UPDATE, 1/19/23, 2pm: "Arizona's 2021 Anti-Abortion Law Is In Place, Judge DENIES Injunction Against Genetic Abnormality Provision (READ Order)"

A federal judge today refused to stop an Arizona anti-abortion law from going into effect, saying that it is too soon to decide whether the measure is unconstitutionally vague.

As described more fully in the original article below, the legal travails of the 2021 law have been twisting - today's Order from U.S. District Court Judge Douglas Rayes does not permit the "personhood" provisions of that law to take effect. Rather, it declines to stop the ban on physicians performing an abortion procedure if it is solely because of a genetic abnormality in the fetus.

As noted below, Judge Rayes had previously stopped the genetic abnormality ban (the "Reason Regulation"), before the Supreme Court reversed it and sent it back to him. Plaintiffs moved to reimpose it based on what they argued was unconstitutionally vague language.

In his 12-page Order, Rayes makes it clear that the renewed effort "lacks constitutional ripeness." 

"In doing so, the Court renders no judgment on the Reason Regulations’ legality. Nor does the Court find Plaintiffs can never challenge these laws. But the pre-enforcement facial vagueness claim they advance here is premature."

 

********

Original article, 9/2/22: "ACLU & Abortion Rights Groups/Doctors Tell Judge SCOTUS Messed Up In Arizona Case, Reimpose Injunction Against Genetic Abnormality Law (READ Motion)"

One of Arizona's several and overlapping anti-abortion laws is back in front of a judge today, after the ACLU and abortion rights groups and doctors ask the court to re-stop the 2021 law prohibiting abortions sought solely because of a genetic abnormality. 

The new Motion for a Preliminary Injunction (below) accuses the U.S. Supreme Court of over-stepping its bounds in late June when it dissolved the previous injunction. This gets a little into the legal weeds, so let's break it down:

1. In its 2021 legislative session, the Arizona Legislature passed a law that did two different things - prohibited abortions sought solely due to a genetic abnormality ("Reason Regulations") and granted fetuses "personhood" (aka "Interpretation Policy"). Governor Ducey signed it.

2. The Arizona Medical Association, ACLU-Arizona, abortion rights groups and doctors filed a federal suit to stop both portions of the law.

3.  In September 2021, Judge Douglas Rayes enjoins the "Reason Regulations" but declines to stop the "personhood" provisions.

4.  As part of the appeal process, Arizona Attorney General Mark Brnovich asks the U.S. Supreme Court to allow the genetic abnormality portion of the law to go into effect while the appeal is pending. (The Supreme Court holds that emergency request for months as it is deciding the Dobbs case.)

5.  On June 30, the Supreme Court treats Brnovich's motion as a Petition for Writ of Certiorari and reverses and remands the case to the District Court (ultimately) to find in accordance with Dobbs. Thus, it dissolves the injunction against the genetic abnormality portion.

          6.  On July 11, Judge Rayes does grant an injunction against the "personhood"                      provisions, and also tells the state that they cannot retroactively use the provisions to           prosecute persons. 

7.  Today's Motion to re-impose the injunction argues to the Court that Judge Rayes' September 2021 decision also found that the Reason Regulations should be stayed because they are unconstitutionally vague, and that that is not impacted by the Dobbs decision. They reiterate their vagueness arguments.

This case is only part of what keeps the legal landscape of abortion rights in Arizona under a fog. The Arizona Legislature's  2022-passed 15-week ban goes into effect in three weeks, and the Territorial-era ban is pending determination in Pima County Superior Court. (That determination is also expected later this month.)

Today's Motion notes that, because of the uncertainty in the law's language, Paul Isaacson, the lead plaintiff and a physician at Family Planning Associates, has had to "err on the side of caution and deny abortion care to any of my patients whom I know have a fetal diagnosis, even if that diagnosis could arguably fall within one of the exceptions." Isaacson also notes that the vague genetic abnormality provisions will even be an issue before 15 weeks, due to earlier screenings that sometimes indicate the potential for abnormalities.

This article was reported by AZ Law founder Paul Weich. Paul was running for a seat in Arizona's House of Representatives.

"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.