NEW: Purdue Pharma Tells U.S. Supreme Court To Send Arizona To Bankruptcy Court

In July, Arizona Attorney General Mark Brnovich garnered national attention for trying to bring major opioid manufacturer Purdue Pharma and the Sackler family to the U.S. Supreme Court to set aside billions of dollars of fraudulent transfers. Yesterday, Purdue asked the Justices to send Arizona to Bankruptcy Court.

In its brief, Purdue's main contentions are that the Purdue Pharma bankruptcy filed in September puts a freeze on Arizona's case, and that the Bankruptcy Court provides the correct forum to resolve Arizona's fraudulent transfer allegations.

Brnovich and outside counsel William Consovoy attracted a lot of attention and interview requests with the "novel" and "audacious lawsuit".  Yesterday's filing is only from Purdue Pharma, and it appears that the Sackler family defendants did not bother to file a brief by the (extended) deadline.

Bankruptcy filings do place an "automatic stay" on legal and collection proceedings, and there is no indication (in the Supreme Court case) that Arizona has asked that stay to be lifted.

Purdue's attorneys also argue that Arizona should have pursued its fraudulent transfer claims in its state courts, rather than trying to convince the U.S. Supreme Court to sit as a trial court. (It notes that Arizona makes the "breezy assertion" that fact-finding would be straightforward.)

In asking the Supreme Court to hear the case, Arizona noted that many states, governments and organizations were all racing to go after the Purdue/Sackler monies and that the highest court in the land should be the referee. Attorneys General in Ohio, Alaska, Louisiana, North Dakota, and Utah supported Arizona's suit, filing a friend of the court brief.

The Supreme Court has not yet decided whether Arizona's case may proceed, whether to send the Attorney General to Bankruptcy Court, or some other option.

Earlier this month, AG Brnovich expressed some concerns about the proposed settlement that many states reached with Purdue, stating that the company had "sought to undermine material terms of the deal.”

AZ Law has requested comment from the Attorney General's Office and will update as warranted.

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BREAKING: Governor Appeals Judge's Upsetting Education Funding Ruling To 9th Circuit, Opposes $45k Attorney's Fees

Last month's ruling that caused Arizona Governor Doug Ducey to call for the judge an "embarrassment" and call for him to retire from the federal bench has now been appealed to the Ninth Circuit. The ruling stated that the Governor had acted illegally in implementing the Prop. 123 education funding scheme.

The Governor's attorneys are also opposing the plaintiff's attorney's application for $45,000 for fees. Attorney Andrew Jacob was asked by U.S. District Court Judge Neil Wake to represent plaintiff Michael Pierce pro bono (without fees); however, Jacob notes in his application that previous Ninth Circuit opinions make it clear that that does not disqualify a successful litigant from being awarded fees, anyway.

The Governor makes the argument that the state's sovereign immunity prevents Pierce from obtaining the fees award, and that the nature of this action does not provide for the successful party from receiving its attorneys fees. The Reply - filed today - argues that the Eleventh Amendment of the U.S. Constitution permits an award in the case of "bad faith litigation tactics." In its harshest language:

Governor Ducey violated the Enabling Act in bad faith because the language in the
Act requiring prior Congressional approval was clear and because the Governor’s
argument that this language was no longer in effect bordered on frivolous. Governor
Ducey’s vigorous defense of his actions was improperly oppressive because he intended to exhaust the efforts of pro bono counsel rather than to prevail on the merits. This is sufficient bad faith to award fees as a sanction without violating the Eleventh Amendment.

The Plaintiff's argument reflects the Court's September 30 Order that so enraged the Governor. Ducey and his staff then mercilessly blasted Judge Wake, calling him an "embarrassment", and that the decision was "incoherent", "biased", and "terrible".

While the Court found that Prop. 123 was illegal, it did not order a halt to the funding method that remains in place until it expires in 2025.

The Ninth Circuit has set January 27 as the deadline for the Governor's Office to file its Opening Brief.

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LISTEN: "AZ Law's" Oct. 19 Installment - Assessor or Human Smuggler, Jodi Arias Appeal, and More

This broadcast episode of "AZ Law" featured articles and commentaries regarding the adoption-related legal troubles of the Maricopa County Assessor, the Jodi Arias appeal, a State Senate discrimination case, the U.S. Supreme Court decision not to review Arizona's rental car tax, and the new Maricopa County Attorney's first meeting with reporters.

"AZ Law" includes articles and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts etc.

AZ Law also 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.


Thanks for listening, and your input is appreciated - Paul.Weich.AZlaw@gmail.com.

LISTEN: "AZ Law's" Oct. 4 Installment - Prop. 123 Articles/Opinions, New Maricopa County Atty, Jaguars, Russian Attacks

This installment includes articles and commentary on a federal judge's decision declaring Arizona's Prop. 123 regarding education funding and the state's permanent land trust to be "illegal"... and the Governor's personal attacks on that judge. 

Other articles discuss the new Maricopa County Attorney, jaguars in Arizona, and how Arizona courts will combat possible Russian disinformation attacks.

"AZ Law" includes articles and updates about opinions from the Arizona Supreme Court, U.S. District Court, etc.

More on these cases and other legal news can be found at ArizonasLaw.org.

AZ Law also 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.

Thanks for listening, and your input is appreciated - Paul.Weich.AZlaw@gmail.com.

SPECIAL AUDIO PROGRAMMING: The Whistleblower Complaint, Read In Its Entirety

"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.

BREAKING, UPDATE: Supreme Court Appoints Independent Counsel To Handle Ethics Complaints Against Fellow Justice Bill Montgomery, and Prosecutor Juan Martinez

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.

Arizona Governor Doug Ducey named Montgomery as a Supreme Court Justice the following day. Yesterday, Acting Maricopa County Attorney Rachel Mitchell confirmed that Martinez has been reassigned from trying homicide cases, due to the ethics complaint.

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. 

LISTEN: "AZ Law's" Sept. 21, 2019 Installment - Brush & Nib Articles/Opinions, New Trump Nominee For Arizona Bench

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.

We conclude with an article on President Trump nominating a Tucson judge for a lifetime appointment to the federal bench in Arizona.

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. 

NEW: Trump Taps Tucson Jurist For U.S. District Court Judgeship

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.

(A continuing thank you to Judicial Nominations Blog.)

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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. 

NEW: Goodyear Firefighter's Workers' Comp Claim For Leukemia Should Be Re-heard, Says Arizona Supreme Court (READ Opinion)

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.

NEW: AZ Supreme Court Rejects Gang Killer's Argument That Death Penalty Scheme Is Unconstitutional (READ Opinion)

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.

State v. Champagne, death penalty upheld by arizonaspolitics on Scribd