Thursday, July 27, 2023

NEW: Arizona's "Unscrupulous Death Wagerers" Find Loophole; Supreme Court Points Finger At AZ Legislature

The Arizona Supreme Court today ruled unanimously in favor "unscrupulous death wagerers", determining that state laws prevented a life insurance company from contesting a policy more than two years after writing it.

The interpretation of Arizona statutes came at the request of a federal court. There, a life insurance company challenged paying out $2.5M to a third party not related to the Arizona couple who passed away. The policy had been in effect for 16 years, much longer than the two year contestability period in Arizona law.

The insurance company claimed that a STOLI Scheme (Stranger Originated Life Insurance)* makes the policy void from the beginning ("ab initio"), so that the two year contestability statute does not apply.

After considering the several relevant statutes raised in arguments, the Court found that the only way to harmonize all of them was to say the contestability limitation should apply. (The U.S. District Court will now consider the rest of the contest.)

Justice Clint Bolick made it clear that the unanimous Court understands the loophole* created:

"(It) will leave loopholes that unscrupulous death wagerers can exploit to the detriment of insurance companies. Possibly so; and indeed, we do not express any view on claims in this litigation that may remain after our decision. But once the legislature displaces common law, we shed our policy role and confine ourselves to statutory interpretation. Thus, such concerns must be directed to the legislature."

* These typically involve inducing senior citizens to take out a life insurance policy on themselves, then transferring it in return for a payment. In this case, the couple bought the policy, paid the premiums and held it for two years. Then, they sold it.

"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, July 25, 2023

NEW: November Trial Date Set On Challenges To New AZ Voter Registration Laws Dealing With Citizenship

A November 6 trial date was set today in a group of cases challenging two Arizona voter registration laws dealing with citizenship issues and registration roll cancellations.

The decision by U.S. District Court Judge Susan Bolton came at the end of more than two hours of oral arguments on issues that Bolton could eliminate from the (estimated) 10-day trial in November. Counsel for Secretary of State Adrian Fontes (Craig Morgan) pressed the urgency of conducting a trial so that election officials can know whether they must implement the laws prior to the first 2024 elections in March (the Presidential Preference Election).

HB2492 requires proof of citizenship and proof of location of residence be provided along with the voter registration form. This received a lot of attention last year partly because there was confusion as to how - and, how many - longtime registered voters might be impacted by the new requirements. HB2243 deals with how voter registrations must be investigated and possibly canceled by County Recorders. The two laws were passed and signed by Republicans in 2022, and went into effect on January 1, 2023.

Several non-profits, sovereign Native American nations, and the U.S. filed actions against the bills, claiming that the citizenship verification requirements were discriminatory and arbitrary, and would illegally disenfranchise thousands of voters (among other arguments). The cases were consolidated, resulting in roughly a dozen different plaintiffs, and a few State of Arizona defendants and the Republican National Committee defending.

(In February, Judge Bolton refused to dismiss the cases outright prior to developing more facts. The parties have been engaging in discovery since then.)

Outside counsel for the state, Josh Whitaker (Osborn Maledon), defended the laws today against the claims that they violate the 1964 Civil Rights Act and the National Voter Registration Act (1994), along with Kory Langhofer for the RNC.

Judge Bolton questioned them about several provisions of the laws, and similarly grilled the parade of plaintiffs' attorneys. She took the motions for partial summary judgment under advisement.

The parties also brought an interesting discovery dispute to the judge's attention.  Democratic Party attorneys have requested discovery from state lawmakers about their motivations in passing HB2243 and HB2492, and the legislators are claiming that correspondence is privileged. The Democratic Party attorneys argue that that legislative privilege was waived once legislative leaders Warren Petersen and Ben Toma intervened in the case. Judge Bolton has given both sides until August 2 to file briefs presenting their arguments.

"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, July 24, 2023

NEW: AZ Supreme Court Justices Disagree On Whether Elections Initiative Should Have Been Kicked Off 2022 Ballot, But Agree That The Signature Disqualification Laws Should Be More Clear

Last year, proponents filed more than 475,000 signatures to get the Free and Fair Elections Act on the 2022 ballot*. After an often-confusing court challenge, the Arizona Supreme Court accepted the trial judge's determination that it fell short by only 1,458 valid signatures. (237,645 were required.)

Today - 11 months later - the majority of Supreme Court justices explained how they would have calculated the complicated numbers. And, lo and behold, they did not agree with either the trial judge or one of their colleagues.

They agreed on one thing: everybody - including them - hope that the Legislature will clarify the laws. (Even as they might disagree on how the laws should be clarified.)

Last year, I wrote that I felt sorry for whichever Justice drew the short straw to write this opinion. Bill Montgomery is that person, and he decided that the proponents actually were 10,090 signatures shy of reaching the ballot. 

He agreed that dissenting Justice Ann Timmer's calculation decisions were "plausible alternatives", but decided that his choices better interpreted more of the statutory provisions.

Nevertheless, we agree that an explicit process established by the legislature that specifically accounts for the various reviews by elections officials and challenges by individuals would be of great utility for initiative proponents, challengers, and courts alike. 

Timmer responded in her opening paragraph.

 The legislature provides two distinct methods for determining whether the constitutionally required number of valid petition signatures supports placing an initiative on the ballot, which I describe as a “projected-count method” and an “actual-count method.”  The majority blends the two to create a hybrid calculation method that is unsupported by our laws. 

But, she concludes with a similar appeal to the lawmakers - and by noting that, until then, the courts should err on the side of placing a citizens' initiative on the ballot.

In sum, I would have reversed the superior court’s judgment and instructed it to enter a judgment directing the Secretary to qualify the initiative for the ballot.  This is, by no means, an obvious result, as demonstrated by the several different calculation methods used by the trial court, the parties, the majority, and me, all of which are purportedly based on the same statutes.  The legislature has clearly authorized persons to challenge placing initiatives on the ballot in ways other than challenging the Secretary and the county recorders’ actions, see §§ 19-118(F), -122(C), but unfortunately it has not provided a clear procedural path for doing so.  As a result, parties, attorneys, and judges are left to read, re-read, and re-read again the statutes to identify that path.  The stakes are high as getting it wrong would divest the voting public of its valuable right to self-govern.  The legislature would serve the public good by clarifying its statutes on these points.

The challenge to the Free and Fair Elections Act - which would have made many changes to Arizona's elections - was brought by the Arizona Free Enterprise Club.

If you'd like to get deep into the calculation weeds that has vexed judges, justices, attorneys, proponents, and opponents, here is the full Opinion. And, with several groups gearing up to collect signatures during the next several months, you will not be alone.

* DisclosureI did not represent the Free and Fair Elections Act, but was heavily involved in attempting to qualify it for the 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, July 21, 2023

NEW: 2022 Arizona Law Restricting Taking Video Of Law Enforcement Declared UNCONSTITUTIONAL (READ Order For Permanent Injunction)

An Arizona law passed last year restricting taking video of law enforcement activity is unconstitutional. Federal Judge John Tuchi signed an Order granting a permanent injunction against the John Kavanagh (then a State Rep) bill today.

The Arizona Broadcasters Association and the Arizona chapter of the American Civil Liberties Union filed the suit last year against the state, as well as Maricopa County Sheriff Paul Penzone and County Attorney Rachel Mitchell. The state agreed to reimburse the parties $69,000 for attorneys' fees.

The County defendants did not contest the matter, and former Attorney General Mark Brnovich's office had also noted that they were not opposing the (then-) preliminary injunction request.

Current AG Kris Mayes and the plaintiffs stipulated to the permanent injunction last week. (Tuchi wrote his own Order instead of signing the one proposed by the parties.)

 h/t to Cody Lillich at Channel 3/Channel 5, and a thanks for sending us the Order. 


"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, July 20, 2023

UPDATE: GOP Lawmakers Ask Judge To Let Arizona's Law Banning Transgender Girls From Playing On Girls Teams To Go Back In Effect Pending Appeal

UPDATE, 7/24, 11:30am: "GOP Lawmakers Ask Judge To Let Arizona's Law Banning Transgender Girls From Playing On Girls Teams To Go Back In Effect Pending Appeal"

It's not very likely to be granted, but State Senate President Warren Petersen and House Speaker Ben Toma today asked Judge Jennifer Zipps to allow Arizona to enforce its law banning transgender girls from playing school sports on girls teams while the case is appealed to the 9th Circuit.

Judge Zipps is unlikely to grant that stay because she forcefully found that the 2022 law discriminates against the two girls who brought the lawsuit. When she denies today's motion, Toma and Petersen say they will ask the 9th Circuit to stop the injunction from going into effect.

The Republican lawmakers told the judge her ruling was "clearly erroneous" for a number of reasons, making it likely that it will be overturned on appeal. (They are not asking her to reconsider the decision itself.) However, they inadvertently turned themselves around, when they titled one of their sections "The Court’s finding that biological males who do not undergo male puberty have no competitive disadvantage over female athletes is clearly erroneous." The judge ruled that the transgender girls have no competitive advantage, and cited the evidence in the record which supported that conclusion.

Petersen and Toma contend that the "overwhelming evidence" that pre-puberty boys have a competitive advantage, and that the judge incorrectly discounted it "entirely because it supposedly arises from “other factors such as greater societal encouragement of athleticism in boys, greater opportunities for boys to play sports, or differences in the preferences of the boys and girls surveyed.”

They ask Judge Zipps to rule by July 31.

*****

UPDATE, 7/21, 1:30pm: "UPDATE: GOP Lawmakers APPEAL Injunction Allowing Transgender Girls To Play On Girls' Teams"

State Senate President Warren Petersen and House Speaker Ben Toma have APPEALED yesterday's Order preventing Tom Horne from banning two transgender girls from playing girls team sports in their schools.

The Ninth Circuit will be asked to decide whether the preliminary injunction stopping the 2022 Arizona law should remain in place.

Toma and Petersen asked to intervene after Attorney General Kris Mayes' office declined to defend the law. They are represented by the James Otis Law Group, LLC out of St. Louis. State Superintendent of Public Instruction Tom Horne is defended by his in-house attorney (and former State Rep.) Maria Syms and outside counsel Dennis Wilenchik.

CLARIFICATION: Yesterday's 35-page Order granting the preliminary injunction specifically prevents Horne from enforcing it as to the two plaintiffs. Judge Zipps' Order does speak more broadly about the law violating Title IX. Yesterday, we also referred to the law as preventing transgender girls from participating in "school sports"; that reference should have been to "girls' school sports".


*****

Original article, 7/20: "BREAKING: Judge STOPS Arizona Law Banning Transgender Girls From Participating In Girls' School Sports"

U.S. District Court Judge Jennifer Zipps today enjoined Arizona Superintendent of Public Instruction Tom Horne from enforcing a new law banning transgender girls from playing school sports, and ordered the Arizona Interscholastic Association to make sure their policies continue to allow transgender girls to participate on girls teams.

The judge systematically considered - and, rejected - the several arguments that Horne and Republican legislative leaders gave in defense of the 2022 statute. For example:

Defendant Horne’s and Intervenors’ argument that the Act does not mention transgender girls and, therefore, does not discriminate based on transgender status or gender identity fails. The Act’s disparate treatment of transgender girls because they are transgender is clear on the face of the statute and makes it facially discriminatory even if the statute does not expressly employ the term “transgender”.

Horne had previously tried to get the case filed on behalf of two girls in Tucson and Phoenix reassigned to a Phoenix-based judge, but Zipps and the Ninth Circuit rejected that.

(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 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: Judge REFUSES to vacate Jacob " @AmericaShaman " Chansley's plea deal and sentence

BREAKING: Judge REFUSES to vacate Jacob "@AmericaShaman" Chansley's plea deal and sentence, based on "new" CCTV footage aired by Fox News.

Also REFUSES to give Chansley opportunity to appeal this denial.

35-page Opinion: 

 

"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, July 19, 2023

SANCTIONS SCOREBOARD UPDATE: How Appealing? Alan Dershowitz Adds His Appeal In Kari Lake/Mark Finchem Voting Machines Case

UPDATE, 7/26, 5:20pm: 

The 9th Circuit has docketed both appeals of the sanctions. The door is now open for one - or, all - of the attorneys to try to consolidate their appeals with the already-in-progress appeal of the dismissal of Kari Lake and Mark Finchem's lawsuit.

The earlier appeal is already briefed and set for argument (in Phoenix) in September. If there is no consolidation, the Alan Dershowitz's and Olsen/Parker's opening briefs contesting the $122,200 in sanctions are due by the end of October.

As explained below, this could cause several issues.

UPDATE, 7/21, 2pm: "How Appealing? Alan Dershowitz Adds His Appeal In Kari Lake/Mark Finchem Voting Machines Case"

Alan Dershowitz filed an appeal today, contesting last week's sanctions against him and the other attorneys representing Kari Lake and Mark Finchem in a failed lawsuit trying to prohibit "electronic voting machines" in the 2022 elections.

The nationally-known attorney was held responsible for up to 10% of the $122,200 in attorneys' fees incurred by Maricopa County in defending the meritless legal action. 

On Wednesday, the other two attorneys socked with the full sanctions filed their appeal. Although attorney Andrew Parker told Arizona's Law that he might try to combine the sanctions appeal(s) with their appeal of the dismissal of the case, no one has yet filed anything to consolidate them. Given that the main appeal has been fully briefed and is set for oral argument in September, any consolidation of all three appeals would be likely to push back (their clients') substantive appeal (with the 2024 election fast approaching).

Dershowitz is represented by Wilenchik & Bartness.

*****

ORIGINAL ARTICLE, 7/19: "UPDATE, SANCTIONS SCOREBOARD: 2/3 Of Lake's/Finchem's Legal Team APPEALS Sanctions Against Them (READ Notice)"

Last week, the attorneys for Kari Lake and Mark Finchem were sanctioned more than $122K for their 2022 effort to ban "electronic voting machines" and force an Arizona statewide hand count last November. Counsel for nationally-known attorney Alan Dershowitz told Arizona's Law he would be appealing the decision that held him responsible for up to 10% of those sanctions.

Today, the other two attorneys - Andrew Parker and Kurt Olsen - filed their own appeal of the sanctions. Significantly, because Judge John Tuchi only sanctioned the attorneys, they filed the appeal under their own names and not Lake/Finchem. Nevertheless, Parker tells Arizona's Law that they may try to shmush it together with their still-pending appeal of the dismissal of the case. "It may be combined," he wrote.

The substantive appeal is set for oral argument before the 9th Circuit, in Phoenix, on September 12. (Therefore, any consolidation with the new appeal would either have to be accomplished very quickly, or they risk pushing back their clients' appeal.)

"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, July 17, 2023

BREAKING: New Channels For Dbacks Games, Effective TODAY; But, WHERE'S the Money?

UPDATES, 7/19, 4:30pm: 

1) The Diamondbacks and MLB opened what they called "a new chapter" with last night's (incredible) game. Local Dbacks broadcasts are now "an MLB production" - as witnessed by regular play by play broadcaster Steve Berthiaume, color analyst (and Dbacks' hero and "Senior Advisor to the President and CEO") Luis Gonzalez, and pre- and post-game show host Jody Jackson all holding mics with the MLB logo.

This raises a number of follow-up questions which Arizona's Law has asked of the team and MLB.

2) One day after Diamond Sports/Bally Sports Arizona pulled the plug on Dbacks broadcasts, they opened a new - and, explosive - battle against their former parent, Sinclair Broadcasting, and others. The adversary proceeding (that's what a lawsuit is called in Bankruptcy Court) has been sealed, but the outline of the 19-count action is public.

Diamond Sports is claiming that Sinclair - the notoriously politically-conservative broadcasting outfit - used fraudulent transfers that sucked money out of the many regional sports networks owned by Diamond and saddled it with hundreds of millions in outstanding debt. The complaint apparently also accused Sinclair and Bally's Corporation of a fraudulent transfer of the value of the naming rights to the regional networks - they were renamed Bally Sports Arizona (etc) last year.

UPDATE, 7/18, 10:40am: Judge Lopez has just signed and posted the order allowing Bally Sports to stop showing Diamondbacks games - and, avoid paying them an estimated $30.8M for the rest of the season. The judge did not address DirecTV and MLB's raised concerns about distributors double-paying Bally and MLB.


UPDATE, 7/18, 10am: The Diamondbacks and MLB enter the post-Bally Sports Arizona era TODAY, announcing new channels on Cox, DirecTV, and more.

Questions remain to be answered, though. How much is MLB paying the Diamondbacks to cover the estimated $30M in 2023 revenue from Bally Sports, which the team has now officially lost? (The bankruptcy court judge has not yet signed an Order.) Back in February, MLB Commissioner Rob Manfred said (under oath) that he had offered to backstop 80% of the lost revenue.

The other question is whether Cox/DirecTV/etc are being given these games for free, whether they have agreed to pay MLB, and whether they will be able to be released from some of their obligations to Bally Sports (or get rebated for monies paid in advance).

Yesterday, a flurry of court filings made it clear that this was happening this week. MLB told Judge Christopher Lopez it was permitting Bally Sports to pull the plug, but wanted assurance that it could place the games with distributors (Cox, DirecTV, etc) without those distributors having to double pay for each game.

Bally Sports was not pleased with the prospect of the distributors asking for rebates, and told the judge that issue was not in front of him at this point.

We expect the judge's Order within the next day or two, and will update accordingly.




*****

ORIGINAL ARTICLE, 7/17: "NEW: MLB & Diamondbacks Letting Bally Sports Pull Plug On Games Starting This Week; Will Dbacks Lose $30M With Trade Deadline Approaching"

Major League Baseball - and, thus, the Arizona Diamondbacks - have agreed to allow Bally Sports Arizona* to pull the plug on game broadcasts for the rest of the season. However, the switch to new channels for the fans remains up in the air, and it is unclear whether the Diamondbacks will recoup the estimated $30M Bally Sports would have paid them for the rest of the season.

Many issues to unpack here, so let's take them one-by-one:

A) The bankruptcy court judge has allowed the hearing on the rejection of the Bally Sports/Diamondbacks contract to be pushed back twice. It is now scheduled for Tuesday morning. If the judge allows the plug to be pulled - as is now expected - the timing is key. It could take place immediately.

B) The reason the plug is now likely to be pulled is because MLB told the judge on Friday that it would not object. The Diamondbacks have been deferring to MLB in this matter, likely because MLB is their semi-backup plan. (The team has repeatedly referred Arizona's Law to MLB for answers to posed questions, and MLB has been unresponsive.)

C) The MLB filing - combined with a Thursday filing from DirecTV - gives us a greater understanding of where the dispute has now shifted. It is apparent that MLB will take responsibility for broadcasting the games, and the question is whether fans will still be able to watch them from their usual sources: Cox cable, DirecTV, AT&T, etc. 

The problem is that Bally Sports expects a full season's worth of payments from those distributors (Cox, etc), and those distributors are not going to want to double-pay MLB for the 2nd half of the season. (This is made more complicated by the fact that Bally Sports Arizona still has Coyotes rights and other programming.) MLB and DirecTV have now brought this to the judge's attention. They have not filed any motions to force a promise that Bally Sports will not collect and/or will rebate. 

But, MLB does ask the court to make sure that "any order granting rejection should make clear that, notwithstanding the terms or conditions of any distribution agreement, broadcasts of any distribution agreement, broadcasts of any Diamondbacks’ games or other related content by the relevant distributors will not be prevented and the distributors will not have to make payments to the Debtors post-rejection for Diamondbacks’ games or other related content where that content is actually being delivered following rejection by non-Debtor third parties such as MLB."

Here's a summary of how it works, according to MLB's filing: (1) Bally Sports pays Diamondbacks. (2) Cox (etc) pay Bally Sports. (3) Fans pay Cox (etc). Bally Sports is asking the judge to stop (1) in that train without impacting (2) and (3). Derailment because MLB wants Cox (etc) to pay them.

D) The other hitch that noone is talking about is whether MLB will step in and pay the Dbacks what they would have received from Bally Sports for the 2nd half of the season - especially if they end up being able to collect money from Cox (etc). (MLB/Dbacks have incentive to place the games on Cox (etc) even without payment, because, they want the fans to be able to watch Dbacks/MLB - especially during a too-rare pennant race.)

According to Bally Sports' bankruptcy schedules, they owe $30.8M. That's presumably for the rest of the season. (It was filed in May, but appears to still be accurate.) At the May 31 evidentiary hearing, MLB Commissioner Rob Manfred testified that he had assured the Diamondbacks (and other teams doing business with Bally Sports/Diamond Sports) before the season (when the bankruptcy happened) that MLB would pay some of the lost revenue.

"Clubs had cash flow concerns (after Diamond Sport's bankruptcy filing)....We said to the clubs that no matter what happens, we'll backstop you at 80% of what you expected.... We wanted to have enough cash flow to prevent a disruption of our business."

If that offer is still the one on the table between MLB and the Diamondbacks, it means the team loses a significant $5.3M in the switch from Bally Sports Arizona to MLB. Even in today's professional sports environment, that's not chump change.

E) If past experience is an indicator, fans will soon be able to watch the Dbacks on their preferred system without additional cost. Earlier this season, the San Diego Padres and Bally Sports parted ways. Somehow, MLB has been able to place the games on Cox, DirecTV, AT&T and Spectrum (in addition to the MLB streaming service).

*Bally Sports Arizona is the (sponsored) name for the network owned by Diamond Sports Arizona. The latter is part of the network of Diamond Sports companies in Chapter 11 (reorganization) bankruptcies.

(H/t and thanks to Nick Piecoro (Arizona Republic's Diamondbacks beat reporter) for first reporting the continuation of the hearing from today until tomorrow, and the team's statement on Sunday's broadcast.)

"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, July 14, 2023

NEW: Schweikert Campaign Again Running Up Significant Legal Fees, Debt As Legal Fallout From His Innuendo Attack Ads Comes To A Head

Arizona's Law and Arizona's Politics have long covered Arizona Congressman David Schweikert's activities at the intersection. Today marks a return to that coverage, spurred by his new campaign finance filing by the longtime Representative for the Scottsdale-based Congressional District (now CD1).

On the surface, Schweikert - who is facing another tough reelection battle in 2024 - had a strong fundraising quarter. He brought in $581,000, which was nearly twice as much as he paid out. Thus, he increased his cash on hand (as of June 30) to more than $634,000.

However, a closer look shows that he racked up an additional $110,000 in unpaid debts during the March through June quarter, and now owes a total of $278,674.22. ($168,785 is owed to the Schweikerts personally, but his campaign consistently pays down those low interest loans.)

More than half of this quarter's new debt is for legal expenses, and the campaign now owes attorney Tim LaSota more than $60,095.

LaSota has been representing the Schweikerts and the campaign in a quartet of lawsuits all stemming from his attacks on Elijah Norton, his opponent in the 2022 primary. And, now it looks like the Congressman is getting them settled before the 2024 primary race begins.

Schweikert printed signs and mailers attacking Norton and making insinuations that Hammon called "homophobic" and that Human Rights Campaign called "extremely over the line". (Reporting by Brahm Resnik/KPNX)

The main case is a defamation case filed by Norton in Maricopa County Superior Court, which is at the Motion to Dismiss stage. A Notice of Settlement has been filed in a federal court copyright case brought by the photographer who took the picture that the Schweikert campaign used without permission. The other cases were filed by the man also in the photo and a company which Norton owned a portion of.

The latest legal thicket is cheap compared to the $1.1M+ the campaign spent paying attorneys to handle Schweikert's ethics investigation. That ended before the last election and resulted in him also paying fines totaling $175,000 (to the House and to the FEC).  

(This article has been corrected to note that it was Hammon who called the insinuations "homophobic" and the Human Rights Campaign that called them "extremely over the line".)

"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.

UPDATE: Hamadeh APPEALS Denial Of New Trial In 2022 Election Contest

UPDATE, 8/3, 9:45am: "Hamadeh's Election Contest Moves Ahead... Sort Of; Judge Still Holding It Up"

Abe Hamadeh's 2022 Election Contest has finally made it to the Court of Appeals... sort of. The Superior Court Judge has not yet signed an appealable judgment dismissing his case (and denying the Motion for a New Trial). And now that it is in the intermediate appellate level, Judge Lee Jantzen's ability to sign an order is removed (divested) - at least temporarily.

This may be the 2nd Arizona Election Contest (see our articles on Mark Finchem's "zombie appeal") to get caught in a sort of legal purgatory, although this is not a result of the contesting candidate's legal team. 

The  Mohave County Superior Court Clerk (properly) sent the record to Division 1 (Court of Appeals) after the Notice of Appeal was prematurely* filed. The Appellate Clerk Notice (below) sets out initial deadlines for Hamadeh, including filing his Opening Brief on or before October 2.

Until the appellate *judges* look at the lack of an appealable judgment - either on their own or after a party points it out to them - this case is in limbo.

Chandler attorney (and frequent Arizona's Law contributor) Tom Ryan says that the limbo may have been partly caused by Hamadeh's main concerns.  “It appears the only strategy behind filing the Notice of Appeal before a final order was signed, was not a legal strategy. The strategy appears to have been solely in service of being able to keep Hamadeh’s legal action in the headlines, not obtain final election results.”

* An appeal is not supposed to be filed until there is an appealable order. Hamadeh's team did ask for such an order. The appellate rules do state that a premature Notice of Appeal will be treated as timely filed once there is a proper Order. (Rule 9(c), ARCAP).

*****

UPDATE, 7/18, 9pm: "Hamadeh APPEALS Denial Of New Trial In 2022 Election Contest"

Abe Hamadeh filed his Notice of Appeal this evening, asking the Court of Appeals to order a new trial in his 2022 Election Contest for the Attorney General race. However, the Notice of Appeal will not actually be treated as "filed" until Judge Lee Jantzen makes his decision official by signing it. 

Usually, this is not an issue, but the Mohave County Superior Court Judge has not given any timeline to either sign yesterday's Minute Entry or decide the pending sanctions requests.

State Rep. Alex Kolodin filed the Notice tonight on behalf of the rest of Hamadeh's eight attorney legal team and their client, and leaves open the possibility that they may ask the Arizona Supreme Court to take the appeal directly (skipping the intermediate Court of Appeals).

The Notice expresses some frustration with Judge Jantzen, noting that he hasn't signed either the December Order dismissing the case after Hamadeh's trial presentation fizzled out nor yesterday's denial of the long-pending new trial motion. It also notes that Jantzen promised on Friday to rule on all pending matters by Monday at noon, but he did not.

"Though the Court’s July 14, 2023 COURT ORDER/NOTICE/RULING explained that its July 17, 2023 COURT ORDER/NOTICE/RULING would address other pending matters, it, without explanation, neither addresses such matters nor contains final judgment language. Therefore, should the trial court subsequently and formally enter final judgment, this appeal should be deemed to be taken from that final judgment as well."

Arizona's Law empathizes. 

*****

UPDATE, 7/17, 3:45pm: 

Judge Lee Jantzen issued his detailed Order detailing why he denied Hamadeh's Motion for a New Trial this afternoon (about 1 1/2 hours after the noon deadline he had set, which was after the...). 

No shocking revelations in it, except that (1) he did not sign it, and (2) he did not address the significant issue of sanctions against Hamadeh and/or his legal team. 

(1) A judge's signature on an order - whether dismissing the case as he did in December or denying a motion for new trial - is imperative. It is only a signed order that can be APPEALED. Hamadeh's attorneys asked for a signed order in December. They did not get one, they filed for the new trial, and they STILL do not have the ability to appeal the dismissal and subsequent denial. 

The Election Contest statutes required Judge Jantzen to "pronounce judgment" within five days of the hearing. We are now coming up on seven months.

(2) Private contestee defendant Kris Mayes (as opposed to in her official capacity as Attorney General) The Secretary of State's Office joined in that request, and it has been at issue since February 3 - before the New Trial was "at issue". Judge Jantzen has promised to rule on it. He has not.

Now, to what he DID say today: Judge Jantzen writes that the Certified Recount was delayed pending this Election Contest, and that that was "the final decision in this election. The Plaintiff can appeal the decision made in this Court and could have appealed the recount, but a new trial with extend discovery is not available under the road map laid out by the Legislature."

Even if, Jantzen says that Hamadeh could have discovered most of the alleged new evidence before the December trial. And that Hamadeh has no proof that the Pinal County problems were experienced in other counties. 

On that subject, Jantzen also rejected Hamadeh's argument that the Secretary of State's Office violated discovery rules in the Hamadeh case by not disclosing the problems discovered during the Pinal County recount.

CORRECTION: Jantzen did previously grant Petersen and Toma's request to file an amicus, as part of his April 11 Minute Entry setting the oral argument on the Motion for a New Trial. We apologize for the error.


*****

ORIGINAL ARTICLE, 7/14: BREAKING: Hamadeh's Motion For New Trial In AG Election Contest DENIED

Abe Hamadeh is getting long-awaited trial court closure today, although not the result he was hoping for. Judge Lee Jantzen DENIED the Motion for a New Trial that was first filed in January.

Although it is not yet signed by the judge, Hamadeh's legal team will likely file their (first) appeal next week, after Jantzen rules on the sanctions motions and related matters.

As Arizona's Law has been detailing, the delays in what is supposed to be an expedited Election Contest process lay mostly on the bench. (Hamadeh's team filed several supplements, which may have led the judge to believe that his 60-day clock kept getting reset.)

(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 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: BREAKING: AZ Supreme Court DENIES Kari Lake's Petition To Transfer Appeal (READ Order)

UPDATE, 7/26, 12:15pm: "BREAKING: AZ Supreme Court DENIES Kari Lake's Petition To Transfer Appeal"

The Arizona Supreme Court today DENIED Kari Lake's Petition to Transfer her appeal from the intermediate Court of Appeals (Division 2).

Noting that Division 2 has already set a deadline of September 15 for Lake's Opening Brief, and no good cause to expedite the appeal, the entire court - with no reported dissent - denied the Petition.

Lake waited several weeks before asking for the transfer, and only filed it after the randomized reassignment from the Phoenix-based Division 1 to the Tucson-based Division 2. Lake questioned why her case was moved to the "most Marxist part of the state".

*****

UPDATE, 7/25, 4:20pm: We are now posting Lake's Petition to Transfer. We did not have a clean copy of it previously, although we had been expecting it. A few readers have asked for it the past couple of days, so we obtained it from the Court today.

Arizona's Law believes strongly in publishing source documents so that readers can read - and, think - for themselves. We are not perfect, so we also welcome corrections, suggestions, etc. 

Arizona's Law is chiefly the work product of Paul Weich (Phoenix attorney). However, we occasionally are assisted by other attorneys. Ergo, the occasional use of first person plural.

And, as we mentioned last night on Twitter X, "(o)ur agenda is truth - fair & accurate coverage of AZ's legal scene. (When we engage in "analysis" or "commentary", we label it.) 

We routinely post/explain filings from all sides. We question attys on multiple sides of a case or issue, and give answers a platform.

As noted at the bottom of every article, we do not try to profit from this effort. If you appreciate it, we invite you to donate to Sun Sounds, which is a reading service for people who cannot hold or read print material due to a disability. Here's that link again.

UPDATE, 7/22, 9am:

The appellees/defendants have told the Supreme Court Justices that they are NOT OPPOSED to transferring Kari Lake's appeal directly to the higher court. 

Maricopa County took the opportunity provided by the Response to Petition to Transfer to remind the Justices that they sanctioned Lake a couple of months ago: "(M)ost of the factual allegations in the Petition are demonstrably false and misrepresentations of the record. This is a recurring problem that this Court already sanctioned." (The Justices sanctioned her and her attorneys $2,000 for claiming that it was "undisputed" that there were more than 35,000 "unaccounted for" ballots added to the totals.)

In other words, we take no position, but "this Court should be aware of the Petition’s significant deficiencies and misrepresentations."

ORIGINAL ARTICLE, 7/14: "BREAKING: Lake (Finally) Asks Arizona Supreme Court To Take Her Election Contest Appeal #2; Save Her From The "Most Marxist Part of the State""

Kari Lake (finally) asked the Arizona Supreme Court today to hear her (second) Election Contest appeal. It apparently took the Court of Appeals transferring it to what Lake called "the most Marxist part of the state".

The appeal of the dismissal of her remaining counts has been pending since the end of May - after Judge Thompson ruled against her following a second trial. She could then have expedited consideration of the appeal by asking the Supreme Court to hear the appeal directly, instead of waiting for the intermediate Court of Appeals to consider it. She has also not asked the Court of Appeals to expedite it as an elections matter, and did not file other required statements in a timely manner. (She finally paid the filing fee last week.)

It was the Arizona Supreme Court that previously affirmed the dismissal of most of her claims, but also ordered Superior Court Judge Peter Thompson to re-consider the signature verification count he had dismissed prior to trial.

Arizona's Law detailed last week's randomized transfer of her appeal from Division 1 of the Court of Appeals to Division 2 in Tucson. That prompted Lake to publicly - and falsely - state that sending it "to the most Marxist part of the state" was an attempt to "bury the truth". Today's motion was apparently prompted by her promise that she "won't let them".

"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, SANCTIONS SCOREBOARD UPDATE: Lake/Finchem Attorneys - Including Dershowitz - Sanctioned $122k For Pre-2022 Election Lawsuit

(UPDATE, 4:30pm: Alan Dershowitz's attorney has confirmed to Arizona's Law that they will appeal the decision to hold Dershowitz responsible for up to 10% of the sanctions. The underlying dismissal of the case is already pending at the 9th Circuit, but it is unclear whether any/all appeals of the sanctions will now be combined.)

***

Kari Lake and Mark Finchem's attorneys have been sanctioned $122,200 for Maricopa County's attorneys fees in a pre-2022 election lawsuit in which they falsely stated that Arizona does not use paper ballots.

Nationally-known attorney Alan Dershowitz tried to remove himself from the sanctions, but U.S. District Court Judge John Tuchi decided that he should be jointly/severally responsible for 10% of the sanctions.

Lake and Finchem were asking the court to forbid the use of "electronic voting machines" in the 2022 elections, requiring a hand count of all ballots. Judge Tuchi denied that. He declined to sanction them for filing the case that he found to be without merit, but did sanction them for the statements about paper ballots. Arizona has always used paper ballots.

The 26-page Order explains why he reduced Maricopa County's request down from $139,950, and why Dershowitz is liable for some - but not most - of those sanctions.

On the other hand, Mr. Dershowitz’s involvement in this case was indeed limited and he made an effort—albeit a misguided one—to communicate his limited role. He did so apparently after discussing the issue with other attorneys and scholars. He therefore claims, with some credibility, to have committed nothing more than an “honest mistake.” If he did wrong, he has apologized and avows he will not do so again. The Court also finds some credibility in his claim that he was not contemporaneously aware that others held him out as having a substantial role in the case; his public participation appears largely to have been engineered by others. Thus, the specific deterrence concerns in this case are diminished and need not be vindicated by the imposition of joint and several liability for the full fee award. Further, any monetary sanction imposed should not be so significant as to dissuade other legal experts from providing advice or assistance in litigation out of fear of sanctions, provided they abide by the requirements of the rules in signing filings and entering appearances in those matters.

The general deterrence concerns posed by Mr. Dershowitz’s conduct do require vindication, however. Attorneys must be reminded that their duties are not qualified in the way he suggests and that courts are entitled to rely on their signatures as certifications their filings are well-founded. The Court therefore will reduce Mr. Dershowitz’s share of responsibility to ten percent of the total fee award, but not eliminate it entirely.

 Kurt Olsen, Andrew Parker and their firms are jointly and severally responsible for the full amount.

No word yet on whether any of the attorneys will appeal the decision to the 9th Circuit.

(This is a developing story. Please check back for further information.)

"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, July 12, 2023

UPDATE: AZ Drives Hard Bargain, Only Reimbursing ACLU For Fraction Of Costs Challenging Arizona To Cover Employees' Gender Reassignment Surgeries (READ Memorandum)

UPDATE, 9/15: "AZ Drives Hard Bargain, Only Reimbursing ACLU For Fraction Of Costs Challenging Arizona To Cover Employees' Gender Reassignment Surgeries"

Arizona legislative leaders had challenged a $500,000 payment the Attorney General had agreed to pay the ACLU for its successful constitutional challenge to Arizona's refusal to cover employees' gender reassignment surgery costs. And the judge asked to see the bills.

Turns out the state is only reimbursing 8% of the $6.6M in fees and costs, according to the memorandum filed last night with billing details.

Judge Marquez will now decide whether to approve the Consent Agreement (below) and Warren Petersen and Ben Toma's request to intervene. The would-be intervenors claim Hobbs' Executive Order removing the exclusion both mooted the settlement and inhibits lawmakers' abilities to legislate on the issue.

UPDATE, 9/1, 12pm: "UPDATE - SHOW ME THE RECEIPTS: Judge Orders ACLU To Show It Spent $500K Challenging Arizona To Cover Employees' Gender Reassignment Surgeries"

U.S. District Court Judge Rosemary Marquez today ordered plaintiffs to prove they incurred at least $500,000 in attorneys' fees in their long-running lawsuit to force Arizona to cover employees' gender reassignment surgery costs.

We set out the long and winding path of this litigation below, so we will not rehash the entire thing today. However, a long-in-the-works settlement spanning two Governors and two Attorneys General was reached in July, and it included the state paying the American Civil Liberties Union and other attorneys $500,000.

Judge Marquez's Order gives the plaintiffs one week to file their billing records to justify the $500,000. Such sua sponte - on her own, without a request - fees inspection has become more common recently, largely in the context of class action settlements. And, it is highly likely that Arizona's attorneys - outside counsel Fennemore Craig, hired by former AG Mark Brnovich - already asked whether the fees were at or above the half-million dollar mark.

Legislative leaders Ben Toma and Warren Petersen raised the issue in their motion to file a friend of the court (amicus) brief, but that permission has not been granted, and the judge did not mention it in today's Order.

*****

ORIGINAL ARTICLE, 7/12: "BREAKING: AZ GOP Leg Leaders Tell Judge Hobbs' Executive Order Re: Coverage For State Employees' Gender Reassignment Surgeries Is VALID, But Say It Messed Up Settlement"

Late last month, Arizona Governor Katie Hobbs issued an Executive Order removing a state-imposed exclusion in health insurance for state employees, prohibiting the insurance companies from covering any gender reassignment surgery costs for the employees. (below)

That Executive Order notes that the exclusion is the subject of litigation which began in 2019 - the exclusion was implemented by the prior administration in 2017 - and that the U.S. Supreme Court ruled in 2020 that discrimination against transgender persons is unconstitutional.

Last week, the parties filed a proposed settlement to resolve the lawsuit, which included an agreement that the court should permanently prohibit Arizona from reimposing the exclusion and payment by the state of $500,000 to cover the ACLU's attorneys' fees. 

The parties had attempted settlement negotiations early in 2022 and had begun the latest round before Katie Hobbs and Kris Mayes took office in January 2023 as Governor and Attorney General, respectively. And, it should be noted, the state continues to be represented by outside counsel (Fennemore Craig) selected by former AG Mark Brnovich.

On Monday, state Senate President Warren Petersen and House Speaker Ben Toma asked permission to file an amicus ("friend of the court") brief to stop the settlement. (The motion and brief are below.)

Their principle argument is that Hobbs' Executive Order jumped the gun and immediately MOOTED the case and that U.S. District Court Judge Rosemary Marquez is not permitted to sign the consent judgment. To succeed on that argument, the Executive Order must be valid. 

This is significant because the Republican legislators (and Republican County Attorneys) are generally declaring Hobbs' Executive Orders to violate the law.

Only if their mootness argument fails do they argue that the Consent Judgment would hamper the Legislature's ability to make policies in the future and that the attorneys' fees award is unreasonable. (They have hired Drew Ensign as outside counsel. Ensign was a Deputy Solicitor General under Brnovich.)

In their news release, the leaders' argument focuses on a different point. Speaker Toma notes that the state passed a law last year prohibiting all gender reassignment surgeries for minors. (Theoretically, removing the exclusion would permit children of state employees to obtain coverage for surgeries, although the EO does note that they would still have to be "medically necessary" in order to be covered and - covered or not - it would still be against the new statute.)

If the settlement is not approved, the court would proceed with oral arguments on the parties' competing motions for summary judgment. It remains to be seen whether Petersen and Toma's latest (quasi-)intervention will prompt a hearing of its own, or whether the judge will approve the agreed-upon judgment.

"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: AZ House Speaker Toma & Senate Pres. Petersen Waived Leg Privilege, Must Sit For Depos In Transgender Sports Case; But, Minor Girls Do, Too

In a twist this afternoon, a judge issued an Order compelling Arizona House Speaker Ben Toma and Senate President Warren Petersen to sit for...