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Top 10 legal stories of 2010: matching funds, employer sanctions, tuition tax credits

The nation’s attention often focused on Arizona court cases in 2010, with several of the state’s high-profile lawsuits landing on the docket of the U.S. Supreme Court.

Issues that became worthy of federal or state Supreme Court interest included matching campaign funds, employer sanctions, secret ballots for union elections, a massive tax rebate, drunk driving and lawyer discipline. And Arizona’s controversial illegal immigration law is considered a likely candidate for the U.S. Supreme Court.

One case actually had a major impact on Arizona’s elections even before the U.S. Supreme Court agreed to hear it.

MATCHING FUNDS

The high court in June blocked the state from distributing matching funds for publicly funded political candidates. Clean Elections candidates had been receiving a dollar-for-dollar match if their privately funded opponent spent more than the specified threshold.

The U.S. Supreme Court issued the ruling without granting review, but court observers said the ruling not only indicated the court would accept the case, but that the days of matching funds were probably over.

The court waited until Nov. 29 to grant review, and the case will be heard in spring 2011.

The decision to block matching funds came just as candidates were gearing up for the Aug. 24 primaries, and it became evident quickly that the fundraising advantage  had shifted to traditional candidates who were able out-raise their Clean Elections opponents who were limited to their initial disbursements.

The Goldwater Institute brought the case on behalf of several traditionally funded candidates who argued that the matching funds system chilled their speech and the speech of independent expenditure committees by delaying when they could spend money. They argued that candidates had, in some cases, waited to break their spending thresholds in order to delay the disbursement of matching funds to their opponents.

And while that case had a large legal impact, one that hasn’t even left the trial stage made the greatest splash.

SENATE BILL 1070

For the four months between Gov. Jan Brewer’s signing of SB1070 and Judge Susan Bolton’s decision to put key provisions of the law on hold, Arizona was at the center of the immigration debate.

There were few court proceedings, but the case brought by the U.S. Department of Justice generated waves of protests in the streets, boycotts of businesses in the state and battered or boosted political careers.

And while much of the debate centered on whether the law would lead to racial profiling, the U.S. Department of Justice’s argument in court was that the federal government had exclusive authority to regulate immigration, a principle the state has had to debate in other cases that challenged Arizona’s immigration enforcement laws.

Brewer and the bill’s main sponsor, Sen. Russell Pearce, said they expected from the outset that the case eventually would be decided by the U.S. Supreme Court.

The 9th Circuit Court Appeals heard the case Nov. 1 with Brewer in attendance.

Arizona in 2010 had the unusual distinction of having three cases go before the U.S. Supreme Court.

EMPLOYER SANCTIONS

Besides the matching funds case, the U.S. Supreme Court will settle issues on tax breaks for individuals who donate to private school-scholarship organizations and penalties for employers who knowingly hire illegal immigrants.

“We are on the cutting edge of a lot of areas of law so we, for whatever reason, have cases that are of interest to the U.S. Supreme Court,” said Arizona Solicitor General Mary O’ Grady.

O’ Grady defended the state’s employer sanctions law, formally called the Legal Arizona Workers Act, on Dec. 8.

The 9th Circuit Court of Appeals had upheld the law, which requires employers to use the federal E-verify system to check the status of every new hire and fire those found not to be in this country legally. Businesses can lose their business licenses for a second violation of the law.

The U.S. solicitor general recommended a review of the case by the U.S. Supreme Court.

The case has national importance since many states and local governments have followed Arizona’s lead, and it could have an impact on SB1070 because both deal with the question of exclusivity of federal authority over immigration, O’ Grady said.

SCHOOL TUITION ORGANIZATIONS

The first Arizona case to be heard in the U.S. Supreme Court in 2010 was a challenge to the state’s program that provides dollar-for-dollar income tax breaks for donations to school tuition organizations, or STOs. Arguments were Nov. 3.

A group of taxpayers represented by the American Civil Liberties Union contended that the government is unlawfully advancing religion by allowing the program. Most of the STOs are religious organizations that award scholarships to students to attend religious schools.

“Our claim is that state money is being given to the beneficiaries of a state spending program on the basis of religion,” law professor Paul Bender, who represented the taxpayers, said to the court. “It’s a claim about discrimination in the distribution of these state funds.”

The state argued that the law that enabled STOs never mentions religion, supports the secular purposes of school choice and provides healthy competition for public schools.

“Arizona’s tuition tax credit does not violate the establishment clause because it’s a neutral law that results in scholarship programs of private choice,” said Paula Bickett, who argued the case on behalf of the state.

SECRET BALLOT

Not all of Arizona’s big legal battles were in the federal courts.

The Arizona Supreme Court forced a special session of the Legislature in August after ruling that language in Proposition 108, a proposal aimed at guaranteeing secret ballots for public and union elections, violated the state’s constitutional requirement that ballot measures be limited to a single subject.

The proposal was meant to stave off possible federal legislation, also known as “card check,” that would require employers to recognize a union if a majority of workers signed a petition card indicating they wanted one.

Brewer called the special session in which legislators fixed the language by dropping the part about public office elections.

Voters overwhelmingly passed the measure Nov. 2.

GIFT CLAUSE

Early in the year the state’s high court ruled that a $97 million tax-rebate Phoenix offered to a private mall developer that built a shopping and residential complex called CityNorth violated the gift clause of the state Constitution.

The court, however, applied the ruling prospectively and did not invalidate the CityNorth deal because its previous rulings on the issue had been confusing, which probably led the city to conclude that the agreement was constitutional in the first place.

The Goldwater Institute brought the suit.

“The ruling should stop schemes that government concocts to subsidize developers based on grandiose promises that often fail to materialize,” Clint Bolick, who leads the institute’s legal section, noted in a statement to the media.

IMPLIED CONSENT

The court also ruled that police cannot draw blood from a suspected drunken driver without first getting a search warrant, unless the suspect gives explicit consent to a sobriety test.

At question in the case was what constituted a refusal to submit to a sobriety test.  Arizona’s implied consent law states that all drivers must submit to a test if arrested on suspicion of drunken driving. The penalty for refusal is an immediate driver’s license suspension, but police cannot draw the motorist’s blood without getting a search warrant.

The law also states that “a failure to expressly agree to the test or successfully complete the test is deemed a refusal.”

The court’s ruling stemmed from the drunken-driving conviction of Jose Carrillo, who was arrested in 2007. Phoenix police placed a tool box on his lap and then drew blood from him without a search warrant. Carrillo said at trial that he didn’t speak English and didn’t consent to the blood draw, but police said he willingly offered his arm after they communicated to him in basic Spanish and gestures. Carrillo said he offered his arm only because he was afraid.

ANDY THOMAS

Disciplinary proceedings against former Maricopa County Attorney Andy Thomas were initiated in December when a special investigator alleged in a report that Thomas and a former deputy county attorney violated several ethical rules and even committed felonies.

The violations stemmed from their prosecutions and investigations of judges, county management and the Maricopa County Board of Supervisors.

Special investigator John Gleason recommended that Thomas, who resigned in April to run for state attorney general, be disbarred. He also recommended disbarment for Lisa Aubuchon, the deputy county attorney involved in all of the prosecutions and investigations.

Gleason alleged that Thomas, Aubuchon and Maricopa County Sheriff Joe Arpaio initiated investigations without cause or complaint and brought criminal charges against Judge Gary Donahoe without conducting an investigation against him. The reason for the charges, Gleason alleged, was to get Donahoe off a case that involved the County Attorney’s Office because he had issued rulings unfavorable to Thomas in the past.

The disciplinary cases against Thomas are expected to reach hearings by mid-year.

NEW JUSTICE

The Supreme Court lost a justice to retirement in August, and by November the governor had chosen his replacement.

Justice Michael Ryan left the court after a career that included stops at all levels of the judiciary.

In January, Judge Robert Brutinel of Yavapai County Superior Court will take the seat vacated by Ryan.

Brutinel, a Republican, beat out two veteran appellate court judges who had made a list of finalists for the Supreme Court in 2009. Finalist Ann Scott Timmer, chief judge of the Arizona Court of Appeals District One, made the list of finalists for the third time, twice under Republican governors.

During the appointment process, Brutinel emphasized his small-town roots and extensive experience as a Superior Court judge, saying that Superior Court judges fully comprehend the importance of their decisions on the lives of litigants because they are face-to-face with them in court.

DEATH PENALTY

Arizona also had its first execution in three years in 2010.

Jeffrey Landrigan was executed Oct. 27 after the U.S. Supreme Court lifted a stay that was based on questions surrounding the state obtaining a drug used in the execution that was in short supply.

Sodium Thiopental is a powerful sedative and is the first in a series of drugs given in an execution. The manufacturer of the drug, Hospira, had a shortage of it in the United States and when Arizona obtained some, Landrigan’s legal team wanted to know where it came from.

Landrigan, who rejected a plea deal 20 years earlier to spare his life, argued through an attorney that since the drug’s source was unknown, there was the possibility it was of an inferior quality and he would suffer.

The state eventually disclosed that it got the drug from Great Britain and had enough for four more executions.

A U.S. District Court judge stayed the execution on grounds the drug might be unsafe and the 9th U.S. Circuit Court of Appeals agreed, but the U.S. Supreme Court lifted the stay, saying there was no proof the drug was unsafe.

Landrigan’s attorney, Dale Baich, a federal public defender, said the issue of the drug’s shortage and source will still be in play in future executions.

Landrigan was convicted in 1990 for the murder of Chester Dyer in Phoenix.

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