BREAKING: 9th Circuit REVERSES, and Rules Arizona Abortion Providers Do Have Standing To Challenge State's Ban On Abortions Due To Genetic Abnormality

A 9th Circuit panel today ruled that Arizona abortion providers do have the necessary standing to ask for an injunction stopping the state's ban on abortions sought solely because of a genetic abnormality in the fetus. The Opinion REVERSES a lower court ruling earlier this year that refused to stop the 2021 law from going into effect after the Dobbs' decision reversed Roe v Wade.

The opinion, written by Judge Ronald Gould - the other two, approving judges were Arizonans Andrew Hurwitz and Roopali Desai - rested partly upon the physicians' assertions that the vagueness in the law have forced them and others to over-comply, inhibiting their practices and decreasing their patients' well-being.

Contrary to the holding of the district court, standing does not also require that the economic injury be sustained while engaging in an activity separately protected by the Constitution, such as First Amendment protected speech.  Rather, our cases make clear that an Article III injury in fact can arise when plaintiffs are simply prevented from conducting normal business activities.

Today's decision sends the issue back to District Court Judge Douglas Rayes, with instructions to re-determine whether the law should be prevented from going into effect. He previously enjoined the other portion of the law, which would have granted a fetus "personhood".

The renewed court battle also comes as many of the same parties (and attorneys) are preparing for oral arguments before the Arizona Supreme Court on December 12, in a case that will determine whether Arizona's Territorial-era complete ban on abortions snapped back into place after the Dobbs' decision. (A determination that it did could render the fight about the genetic abnormalities ban irrelevant.)

Meanwhile, Arizona abortion rights advocates are also attempting to place a constitutional amendment on the 2024 ballot which would protect access to reproductive healthcare.

This article was reported by AZ Law founder Paul Weich. 

"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: AZ Supreme Court SANCTIONS Hamadeh $55,000 For Improper Special Action Petition (READ Order

The Arizona Supreme Court this afternoon sanctioned unsuccessful Attorney General candidate Abe Hamadeh (R-AZ) more than $55,000 for filing an improper Special Action Petition with the highest court in the state.

The sanctions are designed to cover the attorneys' fees and costs incurred by now-AG Kris Mayes and the Arizona Secretary of State's Office.

Hamadeh had found himself in a strange situation (fully-documented by Arizona's Law) because the trial court judge in his Election Contest long failed to sign an appealable judgment (thus making an appeal premature).

Hamadeh's attorneys asked the Supreme Court to not only order Judge Jantzen to sign a final judgment dismissing the contest, but also to reverse Jantzen's decision not to grant a new trial. This, Chief Justice Robert Brutinel today wrote, unnecessarily expanded the Special Action and prompted Mayes' attorneys to spend much more time (aka fees) on the matter. (For example, Republican lawmakers weighed in and brought up other legal issues.)

Mayes's outside counsel incurred $42,123.15 in fees (and $154.81 in costs).

Hamadeh also argued that the Secretary of State's Office should not be awarded its $12,921.50 in fees because they were a nominal party. However, Chief Justice Brutinel pointed out the parts of Hamadeh's Petition which alleged that the Office "violate(d) the duty of candor to the tribunal and to falsely assert that Petitioners had no evidence...." Thus, the Secretary of State's Office was "more than a 'nominal' defendant who need not be expected to remain silent to refute these allegations." 

Hamadeh does have an appeal of the dismissal of his Election Contest currently pending in the Court of Appeals. (Mayes and the Secretary of State's Office have cross-appealed the denial of sanctions in the trial court.) Briefs from the defendants (also, they are appellees and cross-appellants) are due on November 6.

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

This article was reported by AZ Law founder Paul Weich. 

"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 UPDATE: The REAL Reason *WHY* Kari Lake Late-Filed Request To Expedite SCOTUS Appeal To Ban Arizona Vote-Counting Machines (NEWS ANALYSIS)

BREAKING UPDATE, 3/21: The Real Reason *WHY* Kari Lake Late-Filed Request To Expedite SCOTUS Appeal To Ban Arizona Vote-Counting Machines (NEWS ANALYSIS)

In a move that can best be described as "rich", Kari Lake and Mark Finchem today asked SCOTUS to expedite her appeal Petition. And, the real reason is not that they are (suddenly) more worried about vote-counting machines being used in November - which is what they claim.

The Motion to Expedite comes more than five months after the 9th Circuit issued its Opinion on Oct 16, (as published here, below, in the original article). 

Lake had 90 days to appeal. She asked for not one, but TWO, month-long extensions, citing other professional obligations. (Justice Kagan granted them.)

We did not previously publish the extension requests. However, they now are much more relevant. Here they are, below.

Lake's attorneys - Kurt Olsen and Larry Joseph - filed the Petition for Writ of Certiorari (asking the Justices to accept the discretionary appeal) just under the extended deadline last Thursday. The Clerk set April 17 as the government's deadline to respond. 

If they had filed the Motion to Expedite with the Petition, the Court could have decided when to set the response deadline.

However, the real reason for filing the expediting request today was not in the (too-long) 23-page Motion. Rather, it is found in the 176-page Appendix filed separately.

There, we see three new affidavits from key election fraud advocates Clay Parikh, Ben Cotton and Walter Daugherity. These are dated March 18, 19 and 16, respectively.

In other words, even with the five months and two extensions, Lake's/Finchem's/Lindell's team could not finish putting together their Petition. This Motion to Expedite was simply an improper effort to get a de facto third extension to cover up their most recent (work management) failure. (Remember, this case was dismissed, sanctioned, and affirmed on appeal.)

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UPDATE, 3/14/24: "BREAKING: Kari Lake Goes To the (U.S.) Supreme Court, Brings New/Not New Allegations To Outlaw Voting Machines (READ Petition)"

Kari Lake and Mark Finchem told the U.S. Supreme Court today that they have uncovered new evidence of unlawful conduct in past Maricopa County elections, and that the Justices should therefore find that they had standing to file their 2022 suit to ban electronic voting machines.

While not repeating the claims they made in the lower courts that Arizona does not use paper ballots, Lake/Finchem attorneys Kurt Olsen and Larry Joseph do claim to have recently discovered that Maricopa County gave Dominion employees control over the election systems and committed other violations in 2020. Their argument is that the lower courts would not have dismissed the case (and assessed $122,000 in sanctions) but for these discoveries.

Their summary of what they want the Supreme Court to now consider also includes allegations that Maricopa County did not do required logic and accuracy tests, that passwords were not tightly controlled, and software was altered. The full list is found on pp. 17-18 of the Petition, below. However, they are theories that have long been thrown around - maybe even in this case. 

Asked about today's laundry list, Maricopa County Recorder Stephen Richer told Arizona's Law "And, they're not even new."

After considering responses, the Supreme Court will conference and decide whether or not to accept review of the case.

Olsen, Alan Dershowitz and Lake's other attorneys have separately appealed the sanctions to the Ninth Circuit, with oral arguments expected to be in July.

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Original article, 10/16/23: BREAKING: 9th Circuit Re-DISMISSES Kari Lake Hand Count Lawsuit (READ Opinion)

A panel of 9th Circuit judges did not require much time to affirm the dismissal of Kari Lake and Mark Finchem's lawsuit to force all future ballots to be tabulated by hand. 

The unanimous Opinion handed down today agreed that Lake and Finchem had only presented "speculative allegations that voting machines may be hackable", and that they therefore could not establish that they had a right to bring such a suit.

Lake and Finchem had initially attempted to force a handcount in the 2022 elections. That case was dismissed by District Court Judge John Tuchi. Since they both lost in that election, they appealed by arguing that future elections - and they are now both 2024 candidates - should be counted by hand.

Oral argument took place on September 12 in Phoenix. The 9th Circuit panel issued a "per curiam" opinion, in which none of them are listed as the authoring judge. The panel consisted of Judges Andrew Hurwitz, Ronald Gould, and Patrick Bumatay.

The judges found that even if Lake/Finchem had standing, they could not prove that "future injury was either imminent or substantially likely to occur."

Their operative complaint relies on a “long chain of hypothetical contingencies” that have never occurred in Arizona and “must take place for any harm to occur—(1) the specific voting equipment used in Arizona must have ‘security failures’ that allow a malicious actor to manipulate vote totals; (2) such an actor must actually manipulate an election; (3) Arizona’s specific procedural safeguards must fail to detect the manipulation; and (4) the manipulation must change the outcome of the election.” This is the kind of speculation that stretches the concept of imminence “beyond its purpose.”

Separate panels are considering the appeals by Lake's and Finchem's attorneys, contesting the $122,000 in sanctions imposed against them. (There are separate appeals from Alan Dershowitz and the Kurt Olsen/Andrew Parker groups.)

This article was reported by AZ Law founder Paul Weich. 

"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 Vacates ANOTHER Arizona Death Sentence; Although This Time, Without Scolding Arizona Supreme Court

The benches for the U.S. Supreme Court Justices are barely warm today as they begin their new term, but they have again taken aim at Arizona, vacating another death sentence and sending the case back to Maricopa County Superior Court.

Without any noted dissents, the Justices summarily vacated the death sentence given to Manuel Ovante for one of his 2008 killings (while he and his friends were looking for meth). He pled to the murders after a judge told him he could be eligible for parole if he was sentenced to life. The sentencing jury was later told that, too, and then decided to impose a death penalty. By law, he would not have been eligible for parole. The Arizona Supreme Court decided that that incorrect information did not make Ovante's guilty plea involuntary.

The U.S. Supreme Court vacated two similar Arizona death penalties earlier this year, including strong rebukes of the Arizona Supreme Court for ignoring its similar instructions in a 2016 opinion. 

For more on the earlier 5-4 Opinion, Cruz, please see our previous article, "U.S. Supreme Court OVERTURNS Arizona Death Sentence For a Tucson Cop Killer, Again Criticizes Arizona Supreme Court". For that article, former Acting U.S. Solicitor General Neal Katyal told Arizona's Law that we "believe Arizona must be far more careful in how the death penalty is administered." (Katyal represented the Petitioner pro bono.)

Today's decision undoes Ovante's death sentence, and refers back to the February Cruz case.

The Justices could have proceeded with the case to again rebuke Arizona courts. However, the Arizona Supreme Court's decision not to consider Ovante's appeal was in November 2022, so the U.S. Supreme Court obviously did not want to gratuitously issue another scolding 

This article was reported by AZ Law founder Paul Weich. 

"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.