"AZ Law" is a new, nonprofit journalism effort covering Arizona's courts, legal system and laws. "AZ Law" is now airing on Sun Sounds of Arizona. Our sister website can be found at ArizonasPolitics.com. Your ideas for articles, programs, etc. are welcome, at "Paul.Weich.AZlaw-at-gmail.com".
"AZ Law" is a new program developed for Sun Sounds of Arizona. Sun Sounds is a non-profit reading service for people with disabilities which make it difficult for them to read or hold printed material.
Most of Sun Sounds programming, therefore, is devoted to reading articles from newspapers and magazines, as well as books.
Yesterday, I had the opportunity to present the Whistleblower Complaint that has prompted the formal impeachment inquiry into President Donald Trump. This instantly-historical document is presented in its entirety for streaming or downloading.
Sun Sounds listeners can stream or download the special program here, and it is being broadcast at various times.
AZ Law readers can stream or download this reading of the Whistleblower Complaint here. And, it is available on Apple iTunes, Spotify, Google Play and most other places where people find their podcasts these days.
"AZ Law" typically includes articles and updates about opinions from the Arizona Supreme Court, U.S. District Court, etc.
If you know someone who could benefit from Sun Sounds' 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here.
Thanks for listening, and your input is appreciated - Paul.Weich.AZlaw@gmail.com.
Arizona Supreme Court Chief Justice Robert Brutinel today appointed Independent Bar Counsel to investigate and handle an ethics complaint filed against now-fellow Justice Bill Montgomery. The order also grants the State Bar's request to hand the complaint against Maricopa County prosecutor Juan Martinez to the independent counsel.
The State Bar of Arizona's Chief Bar Counsel is permitted to request such a handoff if the office believes it "may be compromised by a specified conflict of interest or may reasonably be questioned." AZ Law has requested more information from the State Bar as to the basis for the request.
The ethics complaints against former Maricopa County Attorney Montgomery and one of his most visible prosecutors were filed on September 3. The attorneys currently representing convicted killer Jodi Arias filed the complaints, parts of which relate to the Arias case.
Brutinel's Order (below) grants the State Bar's Chief Bar Counsel's request and assigns it to the IBC "to provide review and disposition" of the complaints. The Independent Bar Counsel's office was set up by the Supreme Court last year, and it operates from the Commission on Judicial Conduct.
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"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. "AZ Law" can also be downloaded and subscribed to in all major podcast stores - iTunes, Google Play, Spotify, Podbean, etc.
This broadcast installment becomes something of a symposium on the Arizona Supreme Court's controversial decision in the Brush & Nib case - involving the tension between religious freedom and discrimination against same-sex couples. We feature articles and commentaries from several different perspectives.
Here is the Supreme Court's opinion(s) in Brush & Nib. Portions of it will be recorded for the next on-demand installment of AZ Law on Sun Sounds.
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"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. "AZ Law" can also be downloaded and subscribed to in all major podcast stores - iTunes, Google Play, Spotify, Podbean, etc.
President Donald Trump has nominated Pima County Superior Court Judge Scott Rash to fill a vacant judgeship on the U.S. District bench in Tucson. The nomination was announced last week but has not been reported in the Arizona media, although the lifetime appointment is a key one for Arizona courts.
Rash is currently the presiding Family Court judge and has been on the Superior Court bench since 2010. He previously worked in private practice on civil litigation and with the Arizona Attorney General's Office in criminal prosecution. He attended University of Arizona for both undergraduate and law school.
His most recent judicial performance ratings are from 2016, and show that he was unanimously approved as meeting performance standards.
Senator Martha McSally (R-AZ) noted that she met with Rash this past April and praised his nomination. “Judge Rash is a highly respected judge on the Pima County Superior Court and will make an excellent federal judge. With the huge caseloads in Arizona federal courts, it is important that his confirmation take place quickly.”
Rash's nomination will go to the Senate Judiciary Committee for a hearing and a vote, before being considered by the full Senate.
Arizona's Law will continue to follow the confirmation process, and will update this article as warranted.
"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. "AZ Law" can also be downloaded and subscribed to in all major podcast stores - iTunes, Google Play, Spotify, Podbean, etc.
A Goodyear firefighter now battling a rare leukemia may continue fighting for his workers' compensation claim, according to a unanimous opinion today from the Arizona Supreme Court. The Justices found that the Administrative Law Judge who had affirmed the denial of the exposure claim had not issued "any findings" to support his decision, and that it must therefore be set aside.
Gilbert Aguirre has been a Goodyear firefighter for 12 years and has responded to fires at meth labs, and others involving jet fuel, paint thinners and other chemicals. In 2015, he was diagnosed with chronic myeloid leukemia - or, CML. He brought the claim that his CML was caused by his workplace exposure to those toxic chemicals.
CopperPoint Insurance denied the claim against the City, and the Industrial Commission of Arizona reviewed the denial. The ICA's Administrative Law Judge heard conflicting testimony from both sides and affirmed the denial without stating his specific reasons for finding that Aguirre had not carried his burden of proof that the toxic chemicals he had encountered caused the CML.
Justice Andrew Gould wrote the opinion for the unanimous court and blasted the terse decision from the ALJ:
Here, because the ALJ made no findings, the award is legally deficient and must be set aside. Although the ALJ generally cited the occupational disease statute, he made none of the findings required under § 23-901.01(B) and (C). Specifically, the award neither resolves the material issue of whether Aguirre “was exposed to a known carcinogen . . . and the carcinogen is reasonably related to” his CML, nor does it resolve the conflicting opinions of Drs. Wilkenfeld and Salganick on this material issue.
The Court also rejected the City's argument that it had been the firefighters' responsibility to specifically raise the argument that the ALJ decision was deficient. "Here, the ALJ made no material findings at all. Thus, because he failed to fulfill his statutory duty, we cannot, as a practical matter, review his decision on appeal."
The full opinion is below.
"AZ Law" is a new program broadcast on Sun Sounds of Arizona, a non-profit service of Rio Salado Community College, providing audio access to print information to people who cannot read or hold print material due to a disability. Our next broadcast installment will be on Sun Sounds of Arizona at 11:00a.m., on Saturday, August 17. You can donate or listen to Sun Sounds here.
The Arizona Supreme Court today unanimously rejected the appeal of a gang member who killed his (semi-)brother-in-law and the man's girlfriend, then buried the bodies in his mother's backyard. In so doing, the Justices rejected his challenge to Arizona's death penalty scheme, saying that a proper jury instruction narrows an otherwise-vague aggravating factor.
Alan Champagne presented more than two dozen bases for appealing the Maricopa County jury's death sentence, and the Court rejected all of them. Champagne was convicted for the 2011 Phoenix murders of Philmon Tapaha and Brandi Hoffner in his apartment after a night of drinking, and smoking meth. After a week, he then conned the apartment maintenance man to help him build a wooden box (for car parts) and buried the bodies in his mother's backyard. (The house was being foreclosed upon.)
After Hoffner had witnessed the killing of Tapaha, Champagne offered her some meth, prevented her from leaving the bedroom, and then strangled her with an electrical cord. The State presented this to the jury as an aggravating factor in the sentencing.
Champagne argued that the statute's definition was vague, and that only the Legislature/Governor could narrow it. The Supreme Court disagreed:
Section 13-751(F)(6) provides that the trier of fact shall
consider whether “[t]he defendant committed the offense in an especially
heinous, cruel or depraved manner” as an aggravating circumstance in
determining whether to impose a death sentence. This Court has held that
“[t]he (F)(6) aggravator is facially vague but may be remedied with
appropriate narrowing instructions.” And we have approved of “especially cruel” instructions that require the jury to find two essential narrowing factors: “the victim was
conscious during the mental anguish or physical pain” and “the defendant
knew or should have known that the victim would suffer.”
The Supreme Court's full 36-page Opinion, written by Justice Clint Bolick, is below, and further descriptions of the case can be found in this series of Phoenix New Times articles from 2013.
The 9th Circuit rejected Doug Ducey's arguments late last week and ordered that the appeal challenging the Arizona Governor's control of the U.S. Senate seat previously held by John McCain be expedited. Nonetheless, oral argument on the demand for a special election will not be held before November.
AZ Law has been reporting on the twists and turns since the case was filed last November - several months after McCain passed away and the Governor had tapped former Senator Jon Kyl to (temporarily) fill the position. The passage of time has not been the friend of the plaintiffs who claim that the Senate succession law - passed by the Arizona Legislature during McCain's battle with glioblastoma - is unconstitutional.
Indeed, Ducey's attorneys explained to the 9th Circuit that expediting the appeal would not save much time and that we are already getting too close to the November 2020 special election to decide who will serve the last two years of McCain's term. After Kyl stepped down in December, Ducey appointed Martha McSally to serve for 2019 and 2020; McSally is running to serve out the following two years.
The Governor's opposition, submitted by the two outside law firms representing his office in this matter, states: "Simply, expediting briefing by approximately one month does not change the practical reality that Appellants are asking this Court to order a special statewide election that might advance the date to select the person to complete Senator McCain’s term by a few months, at most." It also echoes pointed comments from the District Court Judge that Plaintiffs' attorneys created some of the delays. (The Judge took a few months to rule that the new Arizona law did not violate the U.S. Constitution.)
The three-judge panel - two of whom are from Arizona - rejected the Governor's response without explanation. The initial appellate brief will be due on August 28, and the court is looking to set the expedited oral argument in November.
UPDATE, 7/30, 9:15am: The Senate just voted, 53-37, to confirm Liburdi as the newest U.S. District Court Judge for the District of Arizona. Both Arizona Senators - Republican Martha McSally and Democrat Kyrsten Sinema - voted to confirm. (Thanks to the Judicial Nominations Blog.)
UPDATE, 4:05pm: The Senate voted 51-37 to invoke cloture on Liburdi's nomination. Both of Arizona's Senators - Republican Martha McSally and Democrat Kyrsten Sinema - voted "aye". (Sinema can be seen on the floor as the vote was announced, in the picture below. The confirmation vote is expected by Wednesday.
The Senate will vote this hour on whether to proceed to a confirmation vote on President Donald Trump's nomination of Michael Liburdi to become a District Court Judge in Phoenix. Today's cloture motion is expected to pass.
AZ Law* has been following the confirmation process since Governor Ducey's former General Counsel was nominated for the lifetime judicial position in January. And, while the six months may seem like a long confirmation period - the Judiciary Committee approved him in March - close watchers of the process indicate that this is not a stretched-out nomination.
Both Arizona Senators have spoken in favor of confirming Liburdi, which makes his confirmation even more likely in the Republican-controlled Senate. However, his previous work on behalf of the Republican party and the Arizona Right to Life PAC (Chairman) may prevent him from getting many Democratic votes.
The final confirmation vote will likely take place tomorrow or Wednesday.
In this on-demand installment, hear original reporting, articles about Arizona court cases and a commentary about legal intimidation of aid workers in southern Arizona. On the audio menu for this post-holiday week are updates on the heavyweight battle between Arizona's Attorney General and the state's universities, Bad Braille, and court action on the special election to replace the late-Sen. McCain. Listen until the end to hear an article on why Arizona can't execute a Mexican immigrant, and a commentary alleging Arizona's new U.S. Attorney with trying to intimidate aid workers on the southern border.
"AZ Law" includes articles and updates about opinions from the Arizona Supreme Court, U.S. District Court, etc. Our next broadcast installment will be on Sun Sounds of Arizona at 11:00a.m., on Saturday, July 20.
More on the cases and legal news can be found at ArizonasLaw.org.
Aired 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. You can donate or listen here.
Have an idea for a report on AZ Law, or suggestions on how to make the program/website better? Please email us at Paul.Weich.AZLaw@gmail.com.
The Special Election to fill the rest of the late-Senator John McCain's 6-year term will not be moved up from next November. A federal judge today dismissed a lawsuit challenging the constitutionality of the Arizona laws that have permitted Governor Doug Ducey to appoint replacements for a period of nearly 2 1/2 years.
An appeal of U.S. District Court Judge Diane Humetewa's decision has, in effect, already been filed. As AZ Law reported last week, plaintiffs appealed the "effective denial" by failing to rule promptly - a theory fiercely contested by Governor Ducey's outside counsel. This week, the Ninth Circuit gave the sides until Monday, July 1, to explain whether an appealable order was in place and whether the appeal should be expedited.
Although plaintiffs' counsel has not yet responded to AZ Law's requests, it would seem likely that today's dismissal be immediately appealed in the already-open matter.
Judge Humetewa scolded plaintiffs' counsel for its efforts to nudge the Court into issuing a ruling. In a footnote, the judge noted that many of the delays in moving the case forward had been because of counsel's earlier scheduling conflicts.
As to the substance, the Judge agreed with the Governor's arguments that the cost of a special election and maximizing voter turnout are important State interests that help justify Arizona's special election statute. She addressed the 27-month period:
"Because Senator McCain died just days before the scheduled 2018 primary election,
over two years will pass before the voters have a chance to fill the seat by election. While this period may not be a short period of time, nothing in the Seventeenth Amendment limits the period of time an appointed senator can be in office. The 27-month period, on its own, is not unreasonable considering case precedent, and does not amount to an unreasonable restriction on Plaintiffs’ right to vote. Because there is no unreasonable restriction on Plaintiffs’ right to vote, Plaintiffs cannot establish a violation of their Constitutional rights and therefore, Count One will be dismissed."
Chandler attorney Tom Ryan was not involved in the case, but has vocally opposed the law. He tells AZ Law:
The Arizona GOP was well-aware of Sen. McCain’s dire diagnosis and changed Title 16 to give Gov. Ducey the right to play around with a Senate appointment. This change has effectively deprived Arizona voters a say in many national issues including important appointments to the U.S. Supreme Court and other spots on the Federal bench.
