8/20, 6pm: BREAKING: Arizona Supreme Court UNANIMOUSLY rules that ABORTION RIGHTS initiative STAYS ON NOVEMBER BALLOT
The Arizona Supreme Court unanimously ruled that the citizens' abortion rights initiative did not omit a critical provision in its petition summary, and that it will remain on the November ballot.
The challenge was filed by Arizona Right to Life. The Order, written by Chief Justice Ann Timmer, said that the Plaintiff/Appellant instead "challenges the Description's accuracy in describing these (principal) provisions." And, that is not for the court to decide, said the Order.
8/14, 12pm: "BREAKING: "Unborn human being" is impartial and will be used to describe abortion rights Constitutional amendment in November ballot pamphlet, per split AZ Supreme Court"
The Arizona Supreme Court split 5-2 today in allowing legislative Republicans to use "unborn human being" as part of their "impartial analysis" of the citizens' Constitutional amendment measure placing abortion rights into the Arizona Constitution.
The Justices will release their full written Opinion at a later date, but said they believe it qualifies as "impartial analysis" because one of the Republicans' statutes (that would be overturned) uses the phrase instead of the scientifically-accepted term of "fetus". (There are approximately 15 Arizona statutes that use the term "fetus" and two that use "unborn human being".)
Chief Justice Ann Timmer and Justice James Beene dissented and would have left the lower court's injunction against the language in place. That means the majority includes Vice Chief Justice John Lopez, Justices Robert Brutinel, Kathryn King, and Bill Montgomery. Retired Justice John Pelander is the 5th vote, as he substituted in for the recused Clint Bolick (details below).
The Leg Council's "impartial analysis" will be front and center in the publicity pamphlet mailed by the state to all voters. That is the one that will be followed with paid arguments in favor of the measure and opposed to it.
Below is the language that will be on the (separately mailed or voted in-person) actual ballot.
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UPDATE, 8/6, 11:15am: "BREAKING: Justice Montgomery's (Initial) Answer: I Refuse To Recuse, Planned Parenthood Is Not a Party In This Case"
Arizona Supreme Court Justice Bill Montgomery today refused to recuse himself from the expedited appeal on whether Republicans in the Legislature can substitute "unborn human being" for "fetus" in an impartial description of November's abortion rights ballot measure.
Montgomery writes that just because he recused himself last year from the 1864 abortion ban case in which Planned Parenthood was a named party, does not mean that he cannot impartially decide the current case. "The present matter does not involve either of the parties from PPAZ nor any of the facts or legal issues present in that case. Thus, the basis for the previous recusal in PPAZ, as well as the PPAZ motion for recusal, is not relevant to these present proceedings."
As noted before, Montgomery also initially refused to recuse in the previous case. He reconsidered one week later.
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UPDATE, 8/5, 5pm: "BREAKING: Right To Life Lawsuit Against Arizona's Abortion Rights Ballot Measure DISMISSED"
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UPDATE, 8/5, 1:45pm: "BREAKING, 2nd TO STEP ASIDE? AZ Supreme Court Justice Bill Montgomery Needs to RECUSE From Abortion Rights Ballot Language Case, Motion Argues"
Leading with two provocative and religious Bill Montgomery quotes about Planned Parenthood, abortion rights advocates filed a Motion for the Arizona Supreme Court Justice to recuse himself from the expedited appeal on how the proposed constitutional amendment should be described on November's ballot.
Their motion begins by restating some of what then-Maricopa County Attorney Montgomery told a 2015 protest: “Planned Parenthood kills children and sells their body parts.” And, “The voice of the Holy Spirit will whisper in your soul,” and “you will not be at rest until you reconcile with the truth.”
The ballot measure would enshrine abortion rights in the Arizona Constitution, but Republican lawmakers voted to change the term from a "fetus" to an "unborn human being" and claim that that is impartial.
"This Motion for Recusal raises a related – but similarly simple – legal question; would a reasonable, objective observer doubt the ability of an Arizona Supreme Court justice who publicly said similar phrases to act impartially in resolving this appeal?"
It notes that Montgomery initially refused to recuse himself from the case earlier this year that ended up reinstating the 1864 complete abortion ban, but changed his mind the following week after raising an incident where he had investigated some left-behind boxes of Planned Parenthood materials for criminal wrongdoing.
"...but we have no idea what “additional information” caused him to recuse only eight days after refusing to do so in a 10-page, single-spaced order. That recusal now speaks volumes. And that’s all the more true because Planned Parenthood entities are large financial backers of the ballot measure at issue."
Although Planned Parenthood Advocates of Arizona has been a key member of the coalition getting the abortion rights measure on November's ballot, the Motion describes it as an "endorser" and "large financial backer".
Justice Clint Bolick recused himself from this expedited case last week, and was replaced by former Justice John Pelander.
Briefing is to be completed this week, and the court will consider the matter without oral argument.
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UPDATE, 4:45pm: "Justice Bolick Issues Statement Clarifying His Recusal Guidelines"
Following our reporting of yesterday's recusal in the Prop. 139 ballot language case (and previous articles elsewhere), Justice Clint Bolick today issued a statement (through the court) clarifying when he will and when he will not take himself off of an appeal.
When his wife is "a prime sponsor or prominently identified as a supporter or opponent" of a law that then faces a constitutional challenge, he will recuse. "Otherwise, he (I) will not."
Here's the full statement:
Justice Bolick worked closely with the Court’s ethics counsel to develop guidelines for disqualification consistent with his duty under Rule 2.7 of the Rules of Judicial Ethics to decide cases in which he does not have a conflict. In addition to disqualification rules that apply regardless of his wife Shawnna Bolick’s elected status, such as when she is a party to litigation, he will recuse in any challenge to the constitutionality of a law in which he is aware that his wife was a prime sponsor or prominently identified as a supporter or opponent. Otherwise, he will not.
Bolick faces opposition to his judicial retention on this November's ballot, and has promised to fight to retain his seat on the bench. Also on the ballot is a legislative referral - that Sen. Bolick voted in favor of - to nullify the retention vote (and radically change the judicial retention process).
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UPDATE, 4:15pm: "U.S. and Arizona Supreme Courts Give Arizona AG Mayes a "Just In Case" Extension On 1864 Abortion Ban Case"
The Arizona Supreme Court today agreed not to put its status quo-shattering April Opinion putting the 1864 complete abortion ban into effect for seven more weeks, until after the Legislature's repeal goes into effect.
Attorney General Kris Mayes last month asked the U.S. Supreme Court to give her office an extension to file a Petition appealing the Arizona decision. Her request specifically indicates that her office will not know until the September 13 deadline for citizens' referendum petitions to be filed whether an appeal will be necessary or moot. (Such a drive would require 127,985 valid signatures.)
After the extension to September 23 was approved by (assigned) Justice Elena Kagan, the Arizona Supreme Court today agreed to not issue its mandate before then.
Barring a successful super-stealthy petition drive, the Legislature's repeal of the 1864 abortion ban will go into effect, and all eyes will again be on whether voters approve Prop. 139 (below) in November.
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UPDATE, 1:20pm: The article has been updated to reflect that state Sen. Shawnna Bolick is one of the Appellants because she is a member of the Legislative Council.
Arizona Supreme Court Justice Clint Bolick recused himself yesterday from hearing the expedited appeal on whether the official ballot language for Prop. 139 - the abortion rights measure - should use the phrase "unborn human being" to describe what the proposed constitutional language calls a "fetus".
The Court also set the expedited briefing schedule for the ballot language case, with all briefing to take place next week and for a subsequent decision without oral argument. (That is standard operating procedure for election appeals to the Supreme Court, especially with a ballot printing deadline looming.)
Bolick is married to one of the defendants appealing the case, and retired Justice John Pelander will take his seat on the bench (for this case).
Bolick did NOT recuse himself from the April 9 Opinion which put Arizona's 1864 complete abortion ban into place. That controversial decision was handed down two months after his wife, state Sen. Shawnna Bolick, led many of her Republican colleagues to issue a Legislative Proclamation officially urging Arizonans not to sign petitions to put the abortion measure onto this November's ballot.
Although the checking and challenging process is continuing, the proposed constitutional amendment protecting all abortions before fetal viability and require a healthcare professional to determine that a post-viability abortion is necessary to protect the potential mother's health turned in more than 800,000 signatures, and is now dubbed Prop. 139.
The Republican-controlled Legislative Council decided to describe the fetus as an "unborn human being" in the Official Description of Prop. 139, and the proponents took the matter to Court.
Last week, Superior Court Judge Christopher Whitten quickly determined that the description was not "an impartial analysis of the provisions" and ordered a summary "that replaces the phrase with a neutral term." Bolick is one of the six Republican members of the Leg Council; together with House Speaker and Senate President Warren Petersen, the Republicans appealed last week's decision.
While Justice Bolick has now recused himself, there has been no indication that Justice Bill Montgomery also plans to.
Last year, Planned Parenthood filed a Motion for Recusal, which Justice Montgomery initially denied in a lengthy written Order. However, one week later, he reversed himself in light of information that he had also led an investigation into some discovered Planned Parenthood files.
Planned Parenthood is one of the founding members of the Arizona for Abortion Access coalition that has put forward Prop. 139.
Although he could again change his mind, it may be difficult for Justice Montgomery to distinguish his November recusal from a failure to recuse in this expedited case involving the same party. To date, the abortion rights coalition has not filed a new Motion for Recusal in this case.
Disclosure: This article was reported by AZ Law founder Paul Weich. Paul has been an active participant in AAA coalition member Healthcare Rising in promoting this initiative.
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"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet.
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