Monday, October 30, 2023

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.

Tuesday, October 17, 2023

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.



Monday, October 16, 2023

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.

Monday, October 2, 2023

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.


Arizona one of 8 states joining U.S. FTC in suing to block Kroger (Fry's)/Albertson's-Safeway merger

 Arizona AG Kris Mayes, the FTC and several other states are suing to BLOCK the Fry's (Kroger)/Safeway-Albertson's merger. The case ...