2020 Arizona law school grads want OK to skip bar exam


Recent law school graduates have until July 10 to decide whether they’ll risk COVID-19 by sitting for the bar exam later this month or jeopardize their chosen careers by delaying the test.

The Arizona Supreme Court denied a petition from several recent graduates from law schools affiliated with the University of Arizona and Arizona State University to grant diploma privileges, or the ability to practice law based on graduating from an accredited law school without requiring students to pass a separate exam.

Several other states, including Washington, Utah and Oregon, waived the bar exam requirement for 2020 graduates of accredited law schools with historically high bar passage rates.

In a letter to House Democrats explaining why the court decided against allowing Arizona’s aspiring attorneys to practice law without passing the bar, Supreme Court government affairs director Jerry Landau wrote that the court needed to ensure that people licensed to serve as attorneys in the state are qualified to practice law.

“We cannot admit students unable to pass anymore than admitting CPAs or doctors who don’t pass their exams,” Landau wrote.

The state bar is offered twice a year, in late July and in February. This year, in light of COVID-19, it’s also being offered online in October — but while the in-person exams include a multi-state test that will allow future attorneys to practice law in dozens of states, the October online exam limits them to practicing only in Arizona.

That’s a difficult and unnecessary choice for recent graduates, said Yesenia Gamez, a Tucson native and recent graduate of UofA’s James E. Rogers College of Law. Gamez plans to practice immigration law and has a job lined up working with a single practitioner based in Tucson.

She plans to remain in Arizona, so the October online test works for her — though doing so means she will have to pass the bar again if she ever decides to move or practice in another state.

“We’re asking the Supreme Court to trust that over the last three years we got the education that we needed to be successful attorneys,” Gamez said. “We have been in school for seven years at this point if you count college and law school. In law school we got to practice in clinics, we got to practice being attorneys under supervision. We took class after class after class, and at this point the bar exam is just a barrier for any law student.”

Would-be attorneys who want to maintain the ability to practice law in other states but don’t feel comfortable sitting for the exam this month can postpone the test until February, but that can mean risking jobs contingent on passing the bar.

Law school graduates who have not yet passed the bar are allowed to practice in a limited capacity under a licensed attorney provided they sit for the first bar exam after graduation. In May, the court extended that order to allow recent grads to continue a limited practice under attorney supervision until the February 2021 exam.

But law firms aren’t likely to want to hire someone they have to supervise for months on end, who may end up failing the bar exam or who may have to take time off to study for the bar, which is considered a full-time job in and of itself, Gamez said.

“There’s so many things that they’re not kind of taking into account with the options that they gave us,” she said.

Mark Harrison, an attorney at Osborn Maledon and a past president of the State Bar of Arizona, said law school graduates are already graduating into a tough job market. Firms might make concessions for the most attractive graduates, but not most students.

“Firms are laying off people,” he said. “Firms are deferring income with existing people. So the likelihood that a firm’s going to incur additional overhead, unless somebody’s really very attractive, it’s unlikely.”

The recent graduates’ request is far from anomalous, he said, given the current pandemic and courts in other states opting to allow diploma privileges.

Hannah Chute, a graduate of UofA’s law school who still intends to take the July exam, said the conditions for taking the test remain unsafe despite attempts by the Supreme Court to mitigate the spread of disease.

The test, which takes two full days, will be held in three separate halls at the Phoenix Convention Center with about 200 test-takers per hall, instead of putting 650 people in a single hall. Every test-taker must wear a mask or face shield and have their temperature taken at the door.

It’s far from a good environment to take the most important test of an attorney’s career, said Rep. Diego Rodriguez, a Laveen Democrat and practicing attorney. Rodriguez and fellow Democratic members of the House Judiciary Committee sent a letter to the Supreme Court on July 7 urging the court to grant diploma privileges to new graduates.

“The bar exam is the most important and the most stressful exam an aspiring attorney will take in their life because it’s literally the price of admission to start your professional career,” Rodriguez said.

ABOR: Out-of-state students can’t sue over ‘dreamers’ tuition

In this photo taken outside the Arizona State Supreme Court in Phoenix, Monday, April 2, 2018, immigrant students with deferred deportation status hold a banner in support asking the Supreme Court to rule in favor of continuing their access to in-state tuition costs. (AP Photo/Anita Snow)
In this photo taken outside the Arizona State Supreme Court in Phoenix, Monday, April 2, 2018, immigrant students with deferred deportation status hold a banner in support asking the Supreme Court to rule in favor of continuing their access to in-state tuition costs. (AP Photo/Anita Snow)

Out of state students who paid full tuition at Arizona universities have no right to sue for refunds even though the schools were charging less to people not here legally, an attorney for the Arizona Board of Regents contends.

In new legal filings, Emma Cone-Roddy acknowledged that the regents allowed “dreamers” who were living here to pay the same in-state tuition as other Arizona residents. And she did not dispute that federal law says if states do provide tuition benefits to illegal immigrants they must offer those same benefits to every other U.S. citizen or legal resident.

But Cone-Roddy pointed out to Maricopa County Superior Court Judge Teresa Sanders that the Arizona Supreme Court earlier this year determined the regents tuition policy was illegal and has since been rescinded.

More to the point, the attorney said even if the out-of-state residents were overcharged while the policy was in place — a point she is not conceding — it does not matter. She said nothing in federal law gives individuals the right to sue.

What Sanders decides would affect more than the three students from other states who want a refund of the difference between what they paid and what the universities were charging those in the Deferred Action for Childhood Arrivals program.

Lance Entrekin, the attorney for the students, wants Sanders to let him pursue refunds for all out-of-state students who, as he contends, also were overcharged. And with the difference in what each paid running up to an extra $20,000 a year, that could leave the universities on the hook for hundreds of millions of dollars.

At the heart of the lawsuit is the DACA program instituted by the Obama administration that allows those who arrived in this country illegally as children to both remain and work without fear of deportation.

In 2015 the regents agreed to allow those in the DACA program to pay in-state tuition if they met other residency requirements. That followed a trial court ruling upholding a similar policy in the Maricopa community colleges.

That policy remained in place even after the Court of Appeals, ruling in the Maricopa case, found it violates a 2006 voter-approved law denying tuition benefits to those not here legally. The regents rescinded it only earlier this year after the Arizona Supreme Court reached a similar conclusion.

Entrekin’s lawsuit is based on a federal law that also bars states from offering postsecondary education benefits to those in the country illegally. But he noted there is an escape clause: States that do this must offer the same benefit to any other U.S. citizen or legal resident “without regard to whether the citizen or national is such a resident.”

The regents policy did not do that.

Entrekin is suing on behalf of California resident Mikayla Foss and Michigan resident Abigail Garbarino who were attending Arizona State University, and Eleanor Wiersma from Maryland who was going to the University of Arizona.

Based on the federal law, he said they were entitled to pay in-state tuition just like DACA recipients. And Entrekin wants a refund for the higher tuition they paid this school year.

Cone-Reddy said they have no case — literally.

“The federal statutes plaintiffs rely on neither creates a legal right for them or any other out-of-state students, nor provides any private citizens with a cause of action,” she is arguing.

The attorney said the federal law does not deal with non-resident citizens like the three students here but instead address only the universities “and their authority to provide benefits to illegal aliens.” And if there is to be any enforcement of the law, Cone-Reddy said, it is only by federal immigration authorities.

Anyway, the attorney said, the Arizona Supreme Court in its ruling earlier this year made it clear that the universities had no legal right under state law to charge in-state tuition to DACA recipients. And that, she said, means there’s no basis for the students from other states to claim a legal right of refund.

Cone-Reddy also urged Sanders to reject a separate claim that the regents were “unjustly enriched” by charging them the higher tuition.

“The board was not enriched and plaintiffs were not impoverished because plaintiffs received the university education that the board agreed to provide in return for the amount of tuition that plaintiffs agreed to pay,” she wrote.

No date has been set for a hearing.

ACC to vote on taking over water company

Johnson Utilities owner George Johnson

The Arizona Corporation Commission will proceed with a vote today to install an interim manager at Johnson Utilities after the water company’s failed attempts in court to halt the appointment.

Chairman Tom Forese and Commissioners Bob Burns, Boyd Dunn and Justin Olson voted Tuesday to temporarily appoint a manager at the company, which serves about 35,000 homes in San Tan Valley, an unincorporated area in Pinal County.

The commissioners then directed ACC staff to draw up two separate agreements with EPCOR and the towns of Florence and Queen Creek for their consideration Thursday.

Commissioner Andy Tobin did not participate in the vote after the company filed a motion to disqualify him for allegedly violating ex parte rules, which he denied.

The commissioners’ vote was in line with a recommended order from Administrative Law Judge Sarah Harpring, which included more than 300 pages of discussion in support of the decision.

Still, in keeping with its litigious reputation, Johnson Utilities sought special action by the state Supreme Court and an emergency stay of the commission’s actions against the company.

“Unfortunately, this Commission has habitually overstepped its clear bounds in entering orders that, without question, go beyond what Arizona law has granted it jurisdiction to do,” wrote Johnson Utilities attorney Christian Beams.

The company argued the commission acted “as both prosecutor and judge,” and went against the state Constitution to determine it has “the power to appoint an interim manager where no abandonment has occurred.”

In arguing to the commissioners on Tuesday they should not vote to appoint a manager at the company, Johnson attorney Jeff Crockett insisted doing so would be an “extraordinary remedy.”

Dunn said the action was extraordinary but necessary to protect public safety and health.

The commission typically installs interim managers for companies demonstrating ongoing, unaddressed issues or significant problems the commission believes will not be addressed without intervention.

The central question of the company is whether the “Arizona Constitution or statutes permit the Commission to place a hand-selected receiver (or interim manager) into a private utility’s management?”

Without any indication one way or another on that issue, Supreme Court Justice Andrew Gould denied the company’s emergency motion for a stay and dismissed without prejudice the petition for special action.

Gould’s dismissal essentially tells the company it can pursue other remedies in the lower courts. The matter could be brought back before the Supreme Court at another time.

In the meantime, commission spokeswoman Holly Ward said the commissioners’ will move forward with the appointment.

The commissions will vote on the appointee today at 4 p.m.

The commission was also granted a temporary restraining order in Pinal County Superior Court against the company.

In that motion, ACC attorney Robin Mitchell said Johnson Utilities’ current manager – and sole employee – Gary Drummond testified that the company would cooperate with an interim manager only after exhausting all legal avenues.

“Johnson has demonstrated, throughout the course of the Commission’s investigation, that it intends to resist the appointment of an interim manager… with a series of litigious maneuvers designed to prevent the Commission and other regulators from completing their governing function over Johnson,” Mitchell wrote.

“The company will continue using [its] considerable financial resources to prevent the decision from taking effect, to the detriment of its own customers.”

Mitchell also pointed out that owner George Johnson, like his company, is no stranger to the courts.

Most recently, Johnson was one of four defendants indicted in the so-called “Ghost Lobby” bribery case, which ended in a mistrial on July 17 after the jury could not reach a unanimous decision. Johnson allegedly bribed former Commissioner Gary Pierce to the tune of $31,500 in exchange for Pierce’s favorable votes while he sat on the ACC.

The petitions to the Supreme Court from Johnson Utilities also noted the bribery of Pierce, though not by name.

After 8 years, Ducey hands off a changed Arizona to Hobbs

Gov. Doug Ducey speaks during inauguration ceremonies at the Arizona Capitol in Phoenix. Ducey became the first governor since Bruce Babbitt, who left office in 1987, to complete two full, four-year terms. (AP Photo/Ross D. Franklin, File)

Former Gov. Doug Ducey officially turned over the governor’s office to Gov. Katie Hobbs on Monday, marking a shift in party power at the state’s highest office and the end of a lengthy and consequential era in Arizona politics. 

Ducey, 58, becomes Arizona’s first governor since Bruce Babbit, who left office in 1987, to complete two full, four-year terms on the job. In eight years in office, Ducey presided over profound changes that will continue to affect the state for years to come. 

The governor signed conservative policies into law on everything from economic policy to education during his time as the state’s top executive. Beginning next year, Arizonans in all income brackets will pay a flat 2.5% tax and many families will get taxpayer money to cover education expenses – both products of legislation backed by the governor. 

In other areas, the ground has shifted under Ducey’s feet since he took office in 2015. 

The “Red for Ed” movement that led teachers around the state to go on strike eventually led to pay increases for teachers that the governor approved in 2018. The Arizona Republican Party, now dominated by figures from the MAGA faction of the party aligned with former President Donald Trump, is almost unrecognizable from the state party that helped elect Ducey to two terms in the governor’s office. 

Members of Arizona Educators United protest on April 10 as Gov. Doug Ducey gives his weekly KTAR interview. Dozens of teachers, students and other public education advocates marched outside as the temperature in Phoenix reached 100 degree for the first time this year. (Photo by Katie Campbell/Arizona Capitol Times)
Members of Arizona Educators United protest on April 10, 2018, as Gov. Doug Ducey gives his weekly KTAR interview. Dozens of teachers, students and other public education advocates marched outside as the temperature in Phoenix reached 100 degree for the first time this year. (Photo by Katie Campbell/Arizona Capitol Times)

Ducey frequently says that he’s left the state “better than (he) found it,” and he invariably cites Arizona’s economy as the prime example of his success. 

“He did a great job with the economy. There’s no doubt about that,” said longtime Republican consultant Chuck Coughlin. Specifically, Coughlin said, Arizona has added jobs not just in traditional sectors like home-building and development, but in a diverse range of industries, particularly high-tech manufacturing. 

The new manufacturing projects include battery and electric car makers who have set up shop in Pinal County and a semiconductor manufacturing plant that’s under construction in North Phoenix. Even President Joe Biden flew into Phoenix to help celebrate progress on the chip factory in December. 

In terms of lawmaking, Ducey’s signature accomplishments mostly came near the end of his tenure, and they run the gamut of conservative policy priorities. 

In 2022, his last legislative session, the governor signed a massive expansion of Arizona’s Empowerment Scholarship Account program, better known as school vouchers. The law removed eligibility requirements from the program, allowing any Arizona family to get state funds to cover their children’s education expenses, including tuition at private schools. 

Also last year, lawmakers delivered a billion-dollar package based on the governor’s vision for bringing more water to the state: desalination. A board set up to administer the more than $1 billion investment (which will come out of state coffers over three years) has already taken steps that could lead to financially backing a desalination plant in Sonora, Mexico. 

And in 2021, with the governor’s support, lawmakers passed the state’s historic flat tax. 

Those moves were possible, in part, thanks to Arizona’s growing revenues and enviable financial surplus. In 2015, his first year in office, Ducey signed a slim $9 billion budget. In 2022, that figure had doubled to $18 billion, but still included provisions to top up the state’s rainy-day fund, which now comes to more than one billion dollars. 

Daniel Scarpinato, a former chief of staff to the governor, credited the fiscal belt-tightening of Ducey’s first year – when the state faced a $700 million deficit – for paving the way for future spending packages. 

“I don’t think that we’d be in the position today of being able to do all these things if that (the deficit) had lingered,” Scarpinato said. 

The tax cuts and voucher expansion were, predictably, partisan endeavors, while the water project ultimately received widespread bipartisan support. In another area – public school funding – the governor’s legacy may still be up for debate. 

Even though Ducey ultimately signed the 2018 law that aimed to increase public school teacher pay around the state by 20%, Arizona remains close to last in average teacher pay across the country and public school class sizes have continued to grow in recent years. Scarpinato said that the bottom line is that teachers got a significant raise while Ducey was governor. 

But Stacy Pearson, a Democratic strategist, said Ducey shouldn’t be applauded for effectively restoring education funding that had been cut by former Gov. Jan Brewer, while allowing the state to remain far behind its peers. 

“That he’s trying to get us to celebrate going from dead last to second-to-last, or third-to-last, is laughable,” she said. 

Another important piece of legislation signed by Ducey might have a counterintuitive impact. 

A 2022 abortion law (passed in anticipation of the Supreme Court overturning Roe v. Wade) bans abortion after the 15-week mark of a pregnancy except in medical emergencies, but it may actually have the effect of loosening abortion restrictions in Arizona. That’s because the Arizona Court of Appeals ruled last month that the 15-week ban supersedes a more restrictive state law that dates to the 19th century. 

Outside of lawmaking, Ducey’s second term was largely defined by the Covid pandemic. Phoenix was one of the first cities to report a coronavirus case in January 2020 and, in March 2020, Ducey signed a series of emergency orders that largely shut down the state – closing schools, restaurants, gyms and other businesses.

But the lockdown was lifted abruptly in May and, that summer, the virus began spreading rapidly through the state. Hospitals were overwhelmed and thousands died, but the governor resisted calls to impose health and safety measures like a face mask mandate, arguing it would damage the state’s economy and that lockdowns imposed a toll on mental health.

By the time Ducey left office, more than 30,000 Arizonans had died of Covid and the state had the unwelcome distinction of the highest per capita Covid death rate of any state.


Gov. Claudia Pavlovich, Sonora, Mexico, and Gov. Doug Ducey, talk after a press conference Nov. 29, 2016, to announce Lucid Motors has agreed to open a plant in Casa Grande.

On border issues, Ducey in some ways brought a more restrained approach than his predecessor Brewer, who signed the controversial “show me your papers” law, SB 1070. He forged a close relationship with former Sonora governor Claudia Pavlovich and emphasized economic cooperation. But he also took some aggressive action aimed at border security. 

He initiated the “border strike force” in 2015 – a program aimed at stopping drug trafficking that eventually came under criticism for failing to live up to its name. And in 2022 started busing migrants to liberal cities on the east coast and building a shipping-container border barrier without federal permission – until the federal government secured a legal agreement to take it down. 

Ducey had the fortune of working with Republican-controlled legislatures during his time in office, but narrow majorities did lead to some conflict. In his final legislative session, he signed a budget that got bipartisan backing and included concessions to Democrats in the form of more public-school funding, after some hard-right lawmakers refused to get on board with Ducey’s budget plan. 

The Arizona Supreme Court from left are Justices Bill Montgomery, John Lopez, Ann Scott Timmer (vice chief justice), Robert Brutinel (chief justice), Clint Bolick, James Beene, and Kathryn King.

Among other actions that will reverberate long after he’s gone, Ducey’s numerous judicial appointments mean his judgement will help shape how the state’s legal system functions for years to come. 

Most notably, he expanded the Arizona Supreme Court from five to seven justices, though he insisted the move didn’t amount to court packing. As he leaves office, five of the justices are Ducey appointees. (The other two were appointed by Brewer.) 

Even while Ducey was still in office, the justices had a hand in securing some of his most important policy accomplishments. 

In 2021, the Arizona Supreme Court effectively quashed Proposition 208, a voter-approved initiative that would have raised taxes on high-earning Arizonans in order to provide more funding for public education. (The Arizona Supreme Court sent the case back to a trial court, but with instructions that basically forced the judge’s decision.) Had it taken effect, it would have significantly altered the flat tax program signed into law the same year. 

Compared to Brewer, who fought bitterly with the legislature and memorably wagged an accusatory finger at then-President Barack Obama when he visited Arizona, Ducey took a more low-key approach and, at least publicly, didn’t pick many fights. 

Even Pearson, for the most part a critic of the governor, gave Ducey credit for that. 

“I may not agree with his policies, but the guy did exactly what he said he was going to do … and he did it without scandal,” she said. 

Even so, Ducey had his own clash with a sitting president, in a moment that underscored the political shifts underway during his tenure. 

In 2020, as he certified Arizona’s election results, he silenced a call from Trump, who at the time was ramping up his claims that the election had been marred by widespread fraud. That led to a rift between the two men and was part of a broader schism between Ducey and more hard-right elements of the Republican Party. 

One question that remained unanswered as the governor’s office changed hands on Monday is what Ducey will do next. He declined to run for Arizona’s open U.S. Senate seat last year against Democratic incumbent Mark Kelly, but he has reportedly expressed interest in running the U.S. Chamber of Commerce. In interviews in recent weeks, the governor hasn’t offered hints about his future plans. 

Editor’s note: This story was revised on Jan. 9, 2023 to include a passage on the Covid pandemic. 

After court losses, ballot initiative backers regroup

Members of the Invest in Arizona Coalition deliver boxes of signatures to the Arizona Secretary of State’ Office on September 28, 2021, at the Capitol in Phoenix. The group was delivering boxes of signatures to stop income tax cuts passed by the Arizona Legislature earlier that year and a series of election law changes. The Arizona Supreme Court on April 21 struck the proposal from the ballot. PHOTO BY MATT YORK/ASSOCIATED PRESS

As in most recent election years, Arizonans will probably get the chance to vote on several ballot initiatives this November, but this year’s measures come on the heels of court rulings that have blocked a pair of high-profile proposals.

Last week, the Arizona Supreme Court said they’ll keep off the ballot Proposition 307 – a citizen referendum that would have let voters approve or reject a tax cut legislators passed last year. And last month, a Maricopa County judge tossed out Proposition 208, a measure voters passed in 2020 that would have imposed a tax on high earners to increase public education funding. Judge John Hannah wrote in his opinion that an earlier ruling by the Arizona Supreme Court effectively forced him to strike down the measure.

The outcomes are leading Democrats to cry foul about the court’s role and raising questions about the future of ballot measures as a policy tool.

“I think the court has made it obvious that they’re not afraid to … legislate from the bench,” said Julie Erfle, a Democratic consultant and commentator. David Lujan, who helped organize Prop. 208 and backed Prop. 307, said he is “frustrated that the Supreme Court continues to block the voice of voters.”

Roy Herrera, a Democratic attorney, said he has counseled clients that are thinking about mounting a ballot measure campaign that there’s a legal risk.

“If you’re trying to pursue a progressive ballot measure … you’re going to get challenged legally in every which way,” Herrera said. “And you’re going to be dealing with a court that seems to have a political leaning and that’s going to make it very difficult.”

Republicans, including Gov. Doug Ducey, have largely applauded the court’s moves. “This ruling is another big win for our state’s taxpayers,” the governor said last week, after the court ruled to keep Prop. 307 off the ballot.

Kory Langhofer, a GOP attorney who represented the Arizona Free Enterprise Club, which brought the suit against Prop. 307, disputed complaints about overreach. “You can’t say: ‘I keep losing, so the refs are biased,’” he said. And he downplayed the impact of the recent cases: “It’s not been a sea change, even though there’s been two cases here in the last six months.”

Citizen ballot measures – both original initiatives and referenda on laws passed by legislators – are a regular feature of Arizona elections. Except for 2014, there’s been at least one citizen ballot measure in every statewide election year going back at least three decades. The measures touch on a wide range of issues, from legalizing marijuana to regulating the payday loan industry.

In general, citizen initiatives and referenda are more commonly used by Democrats in Arizona, since they can serve to bypass the state’s Republican-majority Legislature.

Legal challenges touch just a fraction of all ballot measures, but the courts are getting involved more often of late. “Challenges to initiative petitions have increased, I’d say in the last four years,” said Andrew Gould, a Republican and former Arizona Supreme Court Justice who’s now running for attorney general.

The Arizona Supreme Court from left are Justice Bill Montgomery, Justice John R. Lopez, Vice Chief Justice Ann Scott Timmer, Chief Justice Robert Brutinel, Justice Clint Bolick, Justice James Beene, and Justice Kathryn H. King

The results haven’t been all bad for those backing ballot measures. For instance, in 2017, the Arizona Supreme Court rejected a challenge brought by business groups against Proposition 206, a measure voters passed in 2016 that raised the minimum wage and created mandatory sick leave.

That ruling was among the first after Gould and John Lopez joined the court in 2016, following Ducey’s controversial proposal to expand its membership to seven from five justices.

Herrera said he’s not sure whether the move made a difference in recent rulings. “The court was already all Republican before, so it’s a little bit hard to tell whether the outcomes would be different,” he said.

Still, the two recent cases have left some on the left reconsidering their tactics.

Herrera said one solution for frustrated Democrats could be to focus on gaining more representation at the Capitol – flipping legislative seats and electing candidates to statewide offices like the governorship. “That’s, ultimately, the only backstop we have to this kind of stuff, is to have actual elected officials,” he said. Erfle said that’s what she expects – “My guess is that a lot of these groups are going to start shifting their resources more heavily into elections.”

But Lujan pointed out that ballot measures present an easier route than legislation for policies that seek to raise revenue. That’s because if lawmakers want to raise taxes, they need two-thirds majorities in both the House and Senate. “Even if you flip the Legislature, that makes it difficult,” he said. “So that’s why we’ve had to rely on ballot measures in the past, and likely in the future, in order to raise the revenue that we need for schools.”

He said education groups might come back with another ballot measure in 2024, or 2026. But he did suggest that, if backers can gather enough support from lawmakers, working through the Legislature could be a better way to get an initiative on the ballot. “The other way to do this, hopefully in the future, would be to elect a Legislature that, rather than have to do ballot measures, they can refer something to the ballot,” he said.

In the meantime, this year’s ballot is likely to feature a handful of initiatives, including some with conflicting mandates. And even with Prop. 307 gone, progressive groups won’t be sitting this cycle out. The coalition Arizonans for Fair Elections is collecting signatures to get a sweeping initiative onto the ballot that would rewrite election laws – and limit legal challenges to citizen initiatives.

Gould said it’s not ideal to have ballot measures or courts deciding the fate of policy – a better solution would be for lawmakers to be more responsive to constituent demands. “If the Legislature was more active, then maybe people wouldn’t see the need to resort to” ballot measures and legal challenges, he said.

But he added that there’s a certain inevitability to legal challenges when major policies are at stake: “Our society is one in which every important issue, sooner or later, ends up in the courts,” Gould said.

AG starts execution process for 2 inmates


Arizona is finally ready to carry out its first two executions in seven years.

Attorney General Mark Brnovich filed the necessary paperwork Tuesday with the Arizona Supreme Court to have the state put to death Frank Atwood Jr. and Clarence Dixon.

Aide Ryan Anderson said there are still a few steps the court has to take. And then there’s the question of actually setting a date.

But Anderson said there is no reason why both cannot be executed before the end of the year.

There is one thing that has to be decided: the manner of death.

Arizona now uses lethal chemicals to execute inmates after it took 11 minutes for Donald Eugene Harding to die in 1992 by asphyxiation. Voters agreed later that year to replace the gas chamber with lethal injection.

But that law allows any inmate whose crime was committed before Nov. 23, 1992 to choose. In fact, Walter LeGrand was executed in the gas chamber in 1999 at his request and is believed to be the last person in this country put to death by that method.

A representative from the state Department of Corrections, Rehabilitation and Reentry said Tuesday that the gas chamber is “fully operational.”

Clarence Dixon
Clarence Dixon

Brnovich on Tuesday asked the Arizona Supreme Court, which has the last word, to set up a briefing schedule to review the request for death warrants to be issued. But in his legal filings, the attorney general said there’s really nothing left to discuss.

He said the justices need to determine if all of the appeals and post-conviction proceedings have been concluded.

“If those proceedings have terminated, as the state will show, the relevant statute and procedural rule, respectfully, leave this court no discretion to deny the warrant,” Brnovich told the justices.

And there are other complicating factors if either Atwood or Dixon choose lethal injection.

One is that the pentobarbital, the barbiturate the state plans to use, has to be compounded. And once that happens it has a shelf-life of 90 days. So that, Brnovich said, requires the dates to all line up so that the executions, once set, can be completed in that time period.

If these two go forward, it would break the logjam.

Brnovich said there are 115 inmates on Arizona’s “death row,” with about 20 of them, including Atwood and Dixon, having exhausted their appeals. The attorney general, in a prepared statement, made it clear that he considers the renewal of executions to be proper.

“Capital punishment is the law in Arizona and the appropriate response to those who commit the most shocking and vile murders,” he said.

Frank Atwood
Frank Atwood

In fact, in Arizona, the death penalty is not an option simply because someone murdered another person. Instead, it takes a jury concluding there were sufficient “aggravating circumstances” like whether the crime was done for money, whether the person was out on parole, and whether it was committed “in an especially heinous, cruel or depraved manner.”

“This is about the administration of justice and ensuring the last word still belongs to the innocent victims who can no longer speak for themselves,” Brnovich said.

Atwood, a previously convicted pedophile, was convicted for the 1984 death of 8-year-old Vicki Lynne Hoskinson. She disappeared in 1984 while riding her pink bicycle at on her way to mail a letter for her mother.

Authorities eventually tracked Atwood to Texas where he was arrested on charges of kidnapping, with murder charges added after Vicki’s skull and some bones were found in the desert northwest of Tucson the following year.

At trial, witnesses for the state testified that pink paint on the front bumper of Atwood’s car had come “from the victim’s bike or from another source exactly like the bike” and that Vicki’s bicycle had nickel particles on it that were consistent with metal from the bumper.

In seeking to overturn his conviction, Atwood argued that his trial counsel was ineffective. But Judge Sandra Ikuta, writing for the 9th Circuit Court of Appeals, said there were legitimate reasons for decisions made by attorney Stanton Bloom in how to conduct the defense.

And the judges said, in essence, Atwood’s theory that police and prosecutors planted evidence was so far-fetched as to have no credibility.

Mark Brnovich
Mark Brnovich

Dixon was found guilty of murdering Deana Bowdoin, an Arizona State University student, in 1978. She was found murdered in her bed with a macrame belt around her neck and blood on her chest.

While police found DNA they were unable to match it to anyone.

The break came in 2001 when Tempe police matched it to Dixon who by that time was serving a life sentence in prison for a 1986 rape. Dixon had lived across the street from Bowdoin at the time of the murder.

Dale Baich, a federal defender who represented Dixon in post-conviction proceedings, said corrections officials have yet to respond to questions about the process, including Covid safety measures and whether spiritual advisers will be allowed in the execution chamber.

He called the decision to execute him”unconscionable,” and not only because of Dixon’s mental condition. Baich cited statistics he said show that the death penalty is disproportionately imposed on poor people and people of color and is more likely to be imposed in Maricopa County.

It has taken years to determine when Arizona would again start executing inmates.

It started with questions of whether the state could — or would — get the necessary drugs for executions. And it took a court ruling to conclude that the public has no right to know where the state obtains the chemicals.

The state then tried to obtain sodium thiopental, a muscle relaxant. When the manufacturer would not sell the drug to Arizona to put someone to death, the state then ordered them from a suppliers in India despite warnings by the federal Food and Drug Administration that such a move was illegal.

The drugs were seized at Sky Harbor Airport and never released.

In the interim, the federal government managed to get its hands on pentobarbital and last year carried out its first executions in years. That led Brnovich to pressure Gov. Doug Ducey to either have his corrections department get the drugs or at least ask for the attorney general’s help in getting them.

It has taken until now for Arizona to get the drugs it needs.

All along, Hoskinson’s mother, Debbie Carlson, has been pushing Ducey to actively pursue the drugs to ensure that Atwood is put to death.

“I would like to thank Attorney General Mark Brnovich for standing with us in our quest for justice,” she wrote in a 2019 opinion piece in The Arizona Republic. “

It is now my hope that Gov. Ducey will hear our plea and direct the Department of Corrections to procure the drugs to execute the perpetrator.”


AG sues to end Tucson’s odd-year election cycle

In this Feb. 16, 2016, photo, the sun shines behind buildings in downtown Tucson. Attorney General Mark Brnovich is trying to force the city to align local elections with regular state balloting. ARIZONA CAPITOL TIMES FILE PHOTO
In this Feb. 16, 2016, photo, the sun shines behind buildings in downtown Tucson. Attorney General Mark Brnovich is trying to force the city to align local elections with regular state balloting. ARIZONA CAPITOL TIMES FILE PHOTO

Attorney General Mark Brnovich is asking the Arizona Supreme Court to force Tucson to align its local elections with regular state balloting.

The lawsuit filed August 26 follows a conclusion by Brnovich in July that cities have no legal right to maintain their own election dates when turnout is low.

Tucson officials disagree and have refused to budge. So now the attorney general hopes to force the issue.

But it remains to be seen whether Brnovich will have any better luck in court than he had before.

At the heart of the battle is a 2012 law that declared that all elections must be conducted in even-numbered years, and only on dates spelled out by the Legislature. But the state Court of Appeals concluded that there were no legislative findings to support the action overriding the decisions of charter cities like Tucson.

Mark Brnovich (Photo by Gage Skidmore/Flickr)
Mark Brnovich (Photo by Gage Skidmore/Flickr)

Undeterred, lawmakers returned with a 2018 version containing the same requirement – but with a twist. This law applies only when turnout for local elections is at least 25% lower than what happened at the most recent statewide vote.

As it turned out, the turnout for the city’s 2019 vote was 39.3%, compared to more than 67% for the 2018 statewide race.

Not only did the city refuse to change its election date, the council earlier this year specifically set the 2021 primary vote for August 3, with the general election for November 2, 2021.

So Brnovich wants the state’s high court to rein in the city, declare the ordinance void and put city elections on an even-year cycle.

Assistant Attorney General Linley Wilson acknowledged that Tucson is a “charter city,” empowered by the Arizona Constitution to enact its own laws and ordinances on matters of local concern. But she said there are limits to that, particularly when the Legislature decides to impose state laws.

“Allowing cities to legislate without prior state approval is not the same thing as allowing cities to override state law,” Wilson wrote. “The (Arizona) Constitution expressly provides that the powers of the charter cities are subject to this constitution and laws of the state.”

What that means, she said, is when there is a conflict between state law and a local charter, as there is in this case, it is up to the court to determine whether the matter is “of purely municipal concern” and whether state law supersedes the local enactment.

Tucson has won some other battles in that conflict between state and local laws.

The Supreme Court has ruled that Tucson is entitled to maintain its own unusual “modified ward” council system, where candidates are nominated from each of the city’s six wards but have to stand for general election on a statewide basis.

And Tucson has successfully defended having partisan city elections despite a state law requiring that local elections be conducted on a nonpartisan basis.

There was no immediate response from city officials.

AG takes no bail law to U.S. Supreme Court

In this Oct. 5, 2015 file photo, the Supreme Court is seen in Washington. The court’s June 21 ruling allows states to enforce laws requiring many out-of-state businesses to collect taxes on sales made to local residents. PHOTO BY CAROLYN KASTER/THE ASSOCIATED PRESS
In this Oct. 5, 2015 file photo, the Supreme Court is seen in Washington.  PHOTO BY CAROLYN KASTER/THE ASSOCIATED PRESS

The state Attorney General’s Office is asking the U.S. Supreme Court to reinstate a voter-approved provision of the Arizona Constitution which allows accused rapists to be held without bail while awaiting trial.

In legal papers filed in Washington, Assistant Attorney General Rusty Crandell argued that the state’s high court – or at least a majority of the justices here – ignored legal precedent in concluding earlier this year that pretrial detention without bail is permissible only when there is a “legitimate and compelling” purpose and that restriction is narrowly focused. Justice Ann Scott Timmer, writing for the majority, said that means defendants are constitutionally entitled to be released pending trial when there is no showing they will be a danger to the community.

But Crandell said that the crime of rape is “a uniquely horrific act” and there is a “frightening and high risk” that sex offenders will reoffend.

He also said that the law — the one the Arizona justices overturned — has procedural safeguards. That includes requiring prosecutors to prove to a judge that “the proof is evident or the presumption great” that the defendant did, in fact, commit the crime.

And Crandell took a slap at the justices who voted to void the law.

He said that courts should invalidate statutes only when necessary to comply with the Constitution “while leaving in place as much of the legislature’s work as possible.”

“The Arizona Supreme Court has made a practice of doing the opposite,” Crandell told the nation’s high court.

Arizona Supreme Court Justice Ann Scott Timmer (Photo by Ellen O'Brien/Arizona Capitol Times)
Arizona Supreme Court Justice Ann Scott Timmer (Photo by Ellen O’Brien/Arizona Capitol Times)

Prior to 2002, it was presumed that people charged with a crime were entitled to bail. There were only a few exceptions, like those for which the death penalty could be imposed, offenses committed while someone already was out on bail, and felonies where the person charged poses a substantial danger to others and no conditions of release could assure safety.

The 2002 voter-approved state constitutional amendment added sex offenses to that list.

This case involves Guy Goodman who was charged with sexually assaulting a victim.

At a pretrial hearing a police officer testified that Goodwin, a guest in the victim’s home after a night of socializing, molested her while she was sleeping. The officer also said that Goodman, when confronted with DNA evidence, confirmed the sexual assault.

A Maricopa County court commissioner said while there was evidence Goodman committed the offense prosecutors failed to show he posed a “substantial danger to other persons in the community.” At least part of that was based on the fact there was no evidence he had committed similar crimes in the seven years between the incident and his arrest or threatened the victim.

Instead, the commissioner set bail at $70,000, requiring electronic monitoring of his movements, and imposed other conditions like not possessing any weapons.

The state Court of Appeals overturned that decision. But in a 4-3 ruling, the Supreme Court said the 2002 no-bail constitutional provision could not stand.

Timmer, in writing the majority opinion, said one problem with the 2002 ballot measure is it did not provide any procedures to determine whether someone charged with rape would pose a danger if allowed out on bail.

Crandell, in his pleadings to the U.S. Supreme Court, said Timmer and her three colleagues were off base in making that a requirement for prosecutors to prove.

“This court has repeatedly recognized that the government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest,” he wrote. And Crandell took particular aim at the Arizona justices for saying prosecutors have to show there is a danger to the community.

“Unfortunately, there is no way to predict with confidence when or whether a particular sex offender will reoffend,” he said. And Crandell said in areas like these which are “fraught with medical and scientific uncertainties” courts should not rewrite laws but instead “afford legislatures the widest latitude.”

If nothing else, Crandell said, the Arizona Supreme Court should have limited its ruling to the Goodman case and not voided the voter-approved law entirely.

“Even assuming for the sake of argument that there exist actions constituting sexual assault that do not implicate a sufficient community interest to overcome an arrestee’s interest in obtaining bail, those few circumstances are no basis for invalidating a statute in toto,” he told the justices.

“The Constitution is not so blunt an instrument,” Crandell continued. “If anything, it calls for judicial restraint in invalidating the work of the legislative branch or, as here, the people acting through direct democracy.”

The court has not decided whether to hear the state’s appeal.

AG withdraws arguments on legality of hashish for medical marijuana patients


Fearing unintended consequences for patients, especially children, Attorney General Mark Brnovich on Monday withdrew his agency’s arguments urging the Arizona Supreme Court to declare hashish and extracts of marijuana illegal in all situations.

In a surprise move, Brnovich told the justices to ignore a week-old filing which asked them to refuse to consider legal arguments by Rodney Jones, a medical marijuana user, that he was wrongfully convicted of a felony for possessing 0.05 ounces of hashish.

Brnovich spokesman Ryan Anderson said his boss is concerned that the way his agency’s filing was worded could have implications far beyond whether Jones was legally convicted.

“The last thing the attorney general wants is to deny medicine to legitimate patients that may be ingesting their marijuana in an extract or a tincture-type of a form,” he said. And Anderson noted there are children who, under current interpretations of the law, are now getting the drug in liquid fashion to treat their seizures.

What happens now is unclear.

Anderson said that, on one hand, the Attorney General’s Office is legally required to defend criminal convictions obtained by county attorneys. And in this case, a trial judge ruled that it was illegal for Jones, a medical marijuana patient, to have 0.05 ounces of hashish.

That decision was upheld in a split ruling by the Court of Appeals, with Jones now seeking Supreme Court review.

Anderson said the filings of the criminal appellate division seeking to uphold the conviction were not run by Brnovich who is seeking reelection this year against a challenge by Democrat January Contreras. That failure to consult Brnovich is not normally a problem, Anderson said, with that division pretty much operating on its own, even though all the filings bear Brnovich’s name.

But Anderson said this case is different because of the wholesale arguments that alternate forms of marijuana are illegal. And that, he said, ran into something else.

“The attorney general has a responsibility to uphold the will of Arizona voters,” Anderson said. And he said it may very well be that the 2010 voter-approved law does permit patients to buy and use their marijuana in forms other than the leaves and flowers despite the lower court rulings.

The surprise move comes on the heels of a Capitol Media Services story detailing how the Attorney General’s Office was asking the justices to adopt a narrow view of what voters approved in 2010 when they adopted the Arizona Medical Marijuana Act.

That law allows patients with specific medical conditions and a doctor’s recommendation to obtain up to 2 1/2 ounces of marijuana every two weeks. That list includes cancer, glaucoma, AIDS, and nausea, seizure, and “severe and chronic pain.”

The law specifically allows for mixtures and preparations. And the state Department of Health Services has adopted rules permitting state-licensed dispensaries to sell other forms of the drug, including making them in to edibles, as long as the amount of marijuana used did not exceed that 2 1/2-ounce limit.

Yavapai County Attorney Sheila Polk, however, got a trial judge to agree with her argument that hashish, made from the resin of the plant, is not covered by the act but is a narcotic drug. Jones was sentenced to 2.5 years in prison, a conviction upheld by a 2-1 split in the state Court of Appeals.

That paved the way for Supreme Court review – and the now-abandoned arguments by the Attorney General’s Office that the 2010 law allows only for the use of leaves and flowers.

That legal position also created other problems.

Former state Health Director Will Humble, who crafted the rules after the 2010 vote, said he worked closely with the Attorney General’s Office in deciding what forms marijuana could be sold. And he told said that he was given the go-ahead to adopt rules that specifically allowed for the sale of not just the plant itself and its parts but also the extracts made from them.

Anderson said what may happen now is for Brnovich to take a more neutral position on the issue of what forms of marijuana are legal for dispensaries to sell and for patients to possess. That, he said, would leave it up to the Arizona Supreme Court to decide.

“I think the attorney general recognizes that legitimate patients can ingest marijuana in various forms,” Anderson said. But he said the 2010 law “is perhaps ambiguous.”

“And so what we’re asking the Supreme Court to do is to determine whether or not the Arizona Medical Marijuana Act, as it’s currently drafted, contemplates extracts and other forms of medical marijuana that may not be in a leafy bud form,” Anderson said.

Polk said late Monday she was not aware of Brnovich’s action. But she defended her decision to prosecute Jones – and to take the position that extracts like hashish are not covered by the 2010 law.

There’s another option. Both Anderson and Polk said the Arizona Legislature could seek to clarify the law and spell out clearly, one way or the other, what forms of marijuana other than leaves and flowers are legally available to patients.


AG: Officials must preserve public records even on private phones

texts, texting man

Public officials can’t use private phones or social media messages to get around public records laws, according to Arizona Attorney General Mark Brnovich.

In an opinion released this afternoon, Brnovich said public officials have a duty to preserve records that pertain to public business, even if they’re on private cell phones.

The opinion was requested by Democratic Sen. Steve Farley in December 2015 after a Capitol Times investigation found shoddy compliance with records requests for text and social media messages.

In that investigation, Arizona Senate Republicans refused to turn over any text messages, arguing that because elected officials had used private phones, the messages weren’t public records.

But case law does not back up that claim. The Arizona Supreme Court has decided that any documents, regardless of medium, are public records if they have a “substantial nexus” to government business.

Brnovich said communications on officials’ private devices aren’t inherently public records.

But, he said, “public officials have an affirmative duty to reasonably account for official activity,” regardless of whether their device or account is privately or publicly owned.

“In other words, public officials cannot use private devices and accounts for the purpose of concealing official conduct,” Brnovich wrote.

Still, Brnovich wrote, not all communications on government employees’ private devices or accounts are public records. If agencies had to maintain all records on private devices, as they must with certain records on state-owned devices, it would be “impossible” for agencies to manage.

Public employees also have privacy rights, he said, and classifying messages on private devices or accounts as public records could expose all of a person’s information on those accounts to a government agency as part of the record-keeping process.

But, Brnovich said, public bodies and officials have “independent obligations to record their work and otherwise maintain records.”

If a public official uses private electronic devices or social media accounts to conduct official business, it’s the duty of that official to record the activity to comply with public records statutes, Brnovich said.

Using a private device could “implicate the public official’s duty to provide a reasonable account of official conduct,” he added.

Dan Barr, a First Amendment attorney with Perkins Coie in Phoenix, said the opinion effectively confirms what’s already in the law. No one was arguing messages on private devices on private matters were public records, he said. Instead, it’s a “content-based” test – meaning if a message has to do with public business, it’s a public record, regardless of where it is located, he said.

And that’s Brnovich’s broad conclusion, though the opinion delves into whether all records on a private device would be a public record. Barr characterized the opinion as “poorly edited” and noted that an Attorney General opinion does not set a precedent or change any laws.

“What took them so long to issue this opinion? It took them two years to do this?” Barr questioned.

R15 026 I17 004 Issued Opinion (Text)

Amy Love: From an intern in the corner to a voice at the table

Cap Times Q&A

Amy Love, deputy director of government affairs for the Arizona Supreme Court, is hardly your typical lobbyist.

Her friends may imagine she wins the court’s favor with lawmakers by making campaign contributions and buying people boats. But she’s too busy being a “bean counter,” working the budget to keep the courts innovative, educating lawmakers about the impact of laws they pass and tracking bills closely–“because the judges are busy on the bench being judges.”

More than a decade ago, Love was in a very different place. Now, though, she doesn’t know too many people who love what they do as much as she does.

Amy Love (Photo by Katie Campbell/Arizona Capitol Times)
Amy Love (Photo by Katie Campbell/Arizona Capitol Times)

I heard an interesting story about your entry into politics. It involved a tattoo parlor?

I actually dropped out of college. I was working at a pet shop for a couple years, and they started ordering puppies from puppy mills. So, I quit and ended up randomly walking into the tattoo shop where I had gotten a tattoo with my sister and got hired on the spot as their receptionist. Within a year or two, we were in front of the City Council fighting a use permit for a shop that had opened illegally and they were tattooing minors, and the City Council ultimately denied their permit and passed some very basic ordinances for the city related to tattooing. That kind of prompted me to look into going back to school. I had been out for a while, and I realized how much I enjoyed the researching and the advocating and the public speaking. I applied to ASU, and in my final semester, I interned at the Supreme Court. (Government Affairs Director) Jerry Landau, after I finished my internship, was like, “We don’t want you to go. We all love you.”

What is in the future for you? Do you think you’ll stay at the courts for another decade?

Absolutely. I just finished my eleventh session, and ten of them have been with the courts. Jerry has been with us for a number of years, but he’s made it very clear that he doesn’t plan on doing this forever. If and when he decides to leave, the goal is for me to then become the director. So, I’ve gone from intern to analyst to liaison to deputy director, and then ultimately, my dream job is to be the director, to have Jerry’s job, and then to do this work until I’m done or they get tired of me or I die in my office or in the gallery of the Capitol. I don’t know a lot of people who are lucky enough to love what they do as much as I do.

I feel like it would be pretty daunting to know in the back of your head that there’s this big plan for your career already laid out for you. Does that weigh on you?

Not anymore. I definitely had imposter syndrome when I came back to the court. I’m one of the few non-attorneys at my level. I actually don’t have a post-graduate degree, so I have gotten by on just experience and my sense of humor, I guess. So, definitely when I came back as a liaison, that was kind of daunting. I think I’ve paced myself in a way that I feel like I am actually growing into the position. But it took probably three years to feel comfortable enough to speak up. I know my stuff, and I belong.

How have your interactions with the Legislature changed over the years?

It’s been really great to dedicate myself to issues surrounding family court or juvenile justice or child welfare, juvenile court, and I’m starting to become known for those things. It’s really rewarding for me when a policymaker or their staff will call and say, “Hey, this came across our desk as a proposed piece of legislation. Can we get your thoughts first?” When I started, I was the intern who sat in the corner, and now, I have a place at the table and a voice. And I’m very cognizant of how I use that voice.

And your voice essentially speaks for all of the courts in Arizona. What’s that like?

If I really thought about it that way, I would probably have a panic attack. And maybe it’s better that I don’t. I show up, and I do what is not just asked of me. I like to think that I’m strategic and I’m able to help. My mom always said, “Life isn’t fair.” The thing I love about the courts is it’s supposed to be fair to everybody who walks in that door. There’s a lot in life that isn’t fair, but we’re the one place where it’s intended to be so.

I noticed your Twitter handle is @LilBat, and I saw a post that said your mom also used to call you BAT. What’s the deal?

Oh gosh, that’s kind of embarrassing. Yes, since I was a baby my mom has always called me BAT, and it stands for beautiful and talented. It’s kind of cheesy. But every Halloween, she goes crazy. Like, anything that’s in the half-off bin with a bat on it. Almost all of the tattoos that I have are related to bats.

Do you ever feel like you have to cover up your tattoos?

I do try. Obviously, I have (bat) tattoos on my feet, and I think everyone at the Capitol knows now. I’ve learned that I’ve become kind of known for the tattoos on my feet. Would I do it again? Probably not, but I don’t think I’d go to the trouble and the expense and the pain of having them removed. It’s kind of a fun conversation starter. And Justice (Clint) Bolick, I joke with him because he successfully fought a court case for a tattoo shop, and to celebrate his win at the Supreme Court, he got a tattoo on his finger. We joke that we’re the only two inked people at the courts.

Arizona can put juveniles in prison for life, state Supreme Court rules

Arizona judges are free to sentence juveniles to what amount to de facto life sentences despite U.S. Supreme Court rulings that appear to prohibit that, the state Supreme Court ruled Friday.

In a unanimous decision, the justices insisted they were not ignoring what the nation’s high court has repeatedly ruled.

Instead, they said, those legal precedents involved juveniles who were sentenced to life behind bars without possibility of parole for a single crime. The Arizona cases, the justices here wrote, all involved juveniles sentenced to consecutive sentences for multiple crimes.

And that, wrote Justice John Lopez, means judges here handling juvenile cases are not bound by the U.S. Supreme Court precedent even though their consecutive terms amounted to the same thing.

But Lopez did not stop there. He and his colleagues took a slap at the justices on the nation’s high court for issuing their original rulings barring life sentences for juveniles in the first place, saying they were based on “judgments of other nations and the international community.”

“Relying on a single study about the sentencing practices of other nations, the (U.S. Supreme) Court observed that the United States stood alone in subjecting juveniles to parole-ineligible sentences,” Lopez said.

That conclusion clearly did not sit well with the Arizona justices.

“We pause here to express our concern with the Court’s reliance on international laws and judgments to resolve an issue raised under the United States Constitution, particularly when they are invoked by the court to disregard the most reliable evidence of national consensus: the will of the American people as expressed through their state laws,” Lopez wrote. “Such implicit deference to foreign decisions runs the risk of ceding to foreign government what our laws and our Constitution mean, and what our policies in America should be.”

Friday’s decision involves three cases:

– Martin Raul Soto-Fong, sentenced to three consecutive life terms for the 1992 robbery and triple murder at a Tucson El Grande Market, who will not be eligible for release until he has served 109 years behind bars;

– Wade Nolan Clay convicted of murder and attempted murder in a case out of Mohave County and sentenced to life with the possibility of parole after 25 years, and 12 years after that;

– Mark Noriki Kasic Jr. sentenced to consecutive prison sentencing totaling nearly 140 years after being convicted of six counts of arson and other charges stemming from a series of fires in Tucson garages and homes between 2007 and 2010.

Lawyers for all three petitioned for reduction of sentence based on U.S. Supreme Court rulings in the last decade which concluded there was a “national consensus” against imposing parole-ineligible life sentences on juveniles. The attorneys said that the consecutive sentences, while allow for parole, effectively became life terms which they said the nation’s high court has precluded.

Lopez acknowledged that the most recent U.S. Supreme Court ruling states that sentences of life without parole are barred “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”

But Lopez said he and his colleagues are interpreting that as not a categorical ban.

“It merely mandated that trial courts follow a certain process — considering an offender’s youth and attendant characteristics — before imposing a particular penalty,” he wrote.

Lopez also said nothing in those rulings say juveniles “must have a chance for reconciliation with society.”

And then there’s the big difference on which the Arizona Supreme Court is hanging its legal hat.

In each of the cases decided by the justices in Washington, the juveniles were sentenced to life without parole for a single crime. What happened here, Lopez said, is “very different.”

“Each received multiple sentences for multiple crimes which, in the aggregate, resulted in terms of incarceration that will or may exceed their life expectancy,” he wrote. And that difference, Lopez said, is what allows him and his colleagues to uphold the sentences at issue.

Then there’s the issue that the Arizona Legislature has never said that juveniles cannot be locked up for life.
Lopez said courts elsewhere which have held de facto life terms unconstitutional “have invariably usurped the legislative prerogative to devise a novel sentence scheme or otherwise delegated the task to trial courts to do so.”

“Here, petitioners invite us to invade the province of the legislature,” he said. Lopez, however, said the court has to act out of “our respect for the separation of powers, the will of our citizens, and the principles of judicial restraint.”



Arizona Chamber seeks to lower tuition for ‘Dreamers’

Arizona Chamber of Commerce President Glenn Hamer outside the Rayburn House Office Building. Hamer and other business officials from the state were in Washington to lobby the Arizona congressinoal delegation on immigration reform. (Cronkite News Service photo by Pei Li)
Arizona Chamber of Commerce President Glenn Hamer outside the Rayburn House Office Building. Hamer and other business officials from the state were in Washington to lobby the Arizona congressinoal delegation on immigration reform. (Cronkite News Service photo by Pei Li)

The head of a major business organization is looking for legal ways to make education more affordable for “dreamers” who attend state universities and community colleges in Arizona.

And while Glenn Hamer hopes for some state or federal legislative action, that goal ultimately could mean asking voters to rethink a law on who gets – and does not get – in-state tuition they approved in 2006.

The president of the Arizona Chamber of Commerce and Industry said Thursday he thinks there may be some wiggle room in enforcing that law which says those not in the country legally have to pay more than the tuition available to other Arizona residents.

Hamer said that law is based on the idea that Arizona taxpayers should not be subsidizing those who have entered the country illegally or overstayed their visas. But he believes there is a way to legislatively determine that there is some rate – less than full out-of-state tuition – that complies with the law.

There is already some precedent for that. The Arizona Board of Regents has a policy saying those in the Deferred Action for Childhood Arrivals program can attend at a tuition of 150 percent of what is charged to residents.

But that rate can still add $6,000 a year on to a student’s bill. And Hamer said he believes that legally can be driven lower.

Ideally, Hamer said, the whole problem would be resolved if Congress were to deal with the issue and formally declare that DACA recipients are in this country legally.

At this point, DACA exists only because of an executive order signed by Barack Obama when he was president.

The Arizona Supreme Court ruled unanimously last year that does not make those in the program eligible for in-state tuition, no matter their residency status. If Congress acts, then the court ruling becomes legally moot.

But Hamer also has a back-up plan of sorts if the tuition for DACA recipients cannot be legally tweaked and Congress fails to act: Take the issue back to Arizona voters.

The idea of restricting access to in-state tuition was approved in 2006 by a margin of more than 70 percent in favor. But Hamer said things are far different now.

“I could certainly make the argument that, way back when, we were not thinking about dreamers,” he said.

In fact, DACA did not even exist at that time. It was only in 2012 when Obama decided that those who came here as children and met other qualifications could not only remain without fear of deportation but also be allowed to work.

“I believe the average age of a dreamer in terms of the entrance into the United States was 6 years old,” he said, meaning they were not making a conscious decision to violate federal immigration law. “They’re going where their parents are taking them.”

Hamer said multiple polls have shown popular support for providing a permanent solution, including possibly a path to citizenship, for the more than 800,000 who have been accepted into the program nationally, including more than 23,000 in Arizona.

And he said that there already is a basis for resolving the issue: a grand compromise that would give President Trump the $5 billion he wants for a border wall in exchange for legalizing not only DACA recipients but also others who are in this country illegally.

But, failing federal resolution, Hamer said it’s in the interest of the state – and the business community he represents – to create the maximum opportunity for DACA recipients in Arizona to have a higher education, and one that is affordable. And that, he said, cold ultimately require revisiting that 2006 law.

That raises problems of its own.

The most immediate is that the 2006 law, having been approved on the ballot, is subject to the Voter Protection Act. That constitutional provision bars lawmakers from repealing or making major changes to anything that voters have approved. Instead, these have to go back to voters.

“The Voter Protection Act is certainly a challenge,” Hamer said.

Then there’s the fact that any alteration or repeal would go on the 2020 ballot at the same time that Trump is up for reelection. That raises the possibility that border security could be a major campaign issue.

That’s why a frustrated Hamer said his organization is hoping to get it resolved in Washington.

“I don’t think it’s too much to ask Congress to do its job once every 30 years,” he said.

But Hamer said the issue is far too important to Arizona to have it live or die based on what Congress does or does not do. If nothing else, he said, it’s good for business.

“We’re now in an economy where there’s more jobs open than human beings to fill them,” Hamer said. “We need workers of all skill levels.

And Hamer figures that if college graduates earn an average of $1 million more over a lifetime versus those with just a high school diploma, that’s money they’re going to be spending.

“That’s good for everyone,” he said.

Hamer also pointed out Arizona has a goal of having 60 percent of its students get some sort of postsecondary certificate or degree by 2030

“Starting with increasing opportunities for the DACA population seems like a pretty good way to make some progress,” Hamer said.

Arizona court gives teachers union tax hike ‘F’

Wooden gavel

The Arizona Education Association (AEA) can breathe a sigh of relief — not because state courts just threw the union’s “Invest in Ed” near-$1 billion tax hike plan off the ballot for the second time in a row, but because the court’s scathing rebuke dealt only with this one instance of the union’s misinformation playbook.

Just two years after the Arizona Supreme Court threw out the first iteration of Invest in Ed  – for failing to disclose to voters that its provisions would have increased taxes on virtually all state taxpayers — the AEA resurrected the initiative this year and managed to gather roughly 400,000 signatures to place it on November’s ballot. But as the court made embarrassingly clear to the union in its recent ruling, those signatures once again sprang up amid flagrant violations of state law and the union’s failure to properly disclose to voters what they had actually snuck into the initiative.

As the court explained, “Instead of identifying all principal provisions in the Initiative’s description, Defendant Invest in Education circulated an opaque ‘Trojan horse’ of a 100-word description, concealing principal provisions of the Initiative” from voters.

Matt Beienburg
Matt Beienburg

Unfortunately for the union, this Trojan horse ran afoul of existing legal standards which require the 100-word voter summaries but frown on those that “creat[e] a significant danger of confusion or unfairness for a reasonable Arizona voter.”

Yet that’s exactly what the union’s official summary did when it left out five separate significant components of what the ballot initiative would have actually done, like 1) hiking rates not just on individuals (as suggested in the summary) but also on small businesses, and 2) implementing not just what was euphemized to voters as a minor “surcharge,” but rather a permanent and near doubling of the state’s top tax rate.

It’s important to keep in mind exactly what Invest in Ed’s plan would have cost Arizonans. All told, it would increase the costs of, and spending on, the state’s K-12 system to the tune of nearly $1 billion. Lest you forget, that’s on top of the annual $650 million that Arizona lawmakers recently authorized for 20% teacher pay raises, plus an additional $370 million a year in K-12 funding restorations.

But far more embarrassing for the union than the violations themselves was the fact that, as the court wrote, the Arizona Supreme Court had already explicitly told the union in 2018 how it could properly reintroduce and describe its measure the next time around, but that “Instead of using the phrasing that had been blessed by the Arizona Supreme Court, [Invest in Ed] chose to use different language.”

As the court continued in stark terms:

“The disappointing aspect of this case is that [Invest in Ed] ignored the lessons provided by the Arizona Supreme Court in…2018. When a teacher specifically instructs a student exactly how to complete a math problem, and when the student disregards the instruction and does the math problem incorrectly on a future test, should the student receive a passing grade? The simple answer is no….[Invest in Ed] can be described much like the student in this example.”

The immediate result of all this appears to be the demise, yet again, of the union’s Invest in Ed plan. But there is a larger lesson the unions ought — though I fear likely won’t — take from the court’s vigilance: that systematically misleading voters at every turn is unacceptable practice.

 Consider, for example, if the union’s broader talking points were held up to the same light of truth and impartiality as those studied here: the incessant falsehoods and half-truths about K-12 funding in the U.S. Indeed, imagine if the union had to similarly square with voters about the enormous inflation-adjusted increases in American K-12 spending over the past 30 years, or the fact that U.S. K-12 spending already far outpaces that of most other developed countries, or the fact that school choice options have routinely rescued students whom the unions have failed.

 This might all be a bit more than the unions will ever be legally forced to admit, and for that reason, they can surely breathe a sigh of relief. But at least in the case at hand, Arizona’s teachers union and its Invest in Ed plan have been held to the standard of truthfulness that voters deserve.

Arizonans can breathe a sigh of relief, as well, knowing that at least for now, Invest in Ed’s deceptive scheme will not be put before the voters, saving the state from the massive near-$1 billion tax hike the proposal would have delivered — and the devastating consequences for individuals, businesses, and the state’s economy. But be forewarned: should the court’s decision be overturned, Invest in Ed’s could gain new life at a significant cost to our state.

Matt Beienburg is director of education policy at the Goldwater Institute and is director of the institute’s Van Sittert Center for Constitutional Advocacy. 


Arizona gets high marks for pretrial justice system, but money bond still in use

Arizona found itself at the higher end of nationwide rankings for once after the Pretrial Justice Institute awarded the state high marks for its pretrial system.

According to the first State of Pretrial Justice in America report released November 1, Arizona was one of only eight states in the country to earn a B, a grade that was based on three factors: the state’s rate of pretrial detention, the extent to which counties are employing a validated pretrial assessment tool and the extent to which the state has functionally eliminated the use of money bond, which Arizona has not yet done.

However, the state’s pretrial detention rate sits at 16.7 per 10,000 residents, according to the report, and all 15 counties use a validated risk assessment tool. The point of such a tool, said Cherise Fanno Burdeen, the institute’s CEO, is to guide judicial discretion to avoid a “disparate impact on poor people and people of color.”

New Jersey claimed the only A grade, while the nation as a whole received a “quite dismal D.”

“Arizona is on the right track,” Burdeen said. “As the report says, this takes into account current conditions.  A few years ago, New Jersey would have gotten an F. And here they are in 2017 with an A. So, Arizona could very quickly advance this grade.”

The rest of the country has a long way to go in comparison. Ten states received a C, 13 received a D and 17 fell to the bottom of the pack with an F.

Dave Byers, administrative director for the Arizona Supreme Court, said the grade recognizes the hard work done by the courts over the past few years, particularly efforts by last year’s fair justice task force.

As for the points lost on the elimination of cash bail or lack thereof, Byers said he and other experts have not been able to figure out a way to eliminate money from misdemeanor cases completely.

“I’ve talked to them, and no one can figure this out,” Byers said.

Byers said the state Constitution allows a person who has committed a felony to be detained without the use bail if they are a high risk to the community or flight risk. The Constitution does not extend that to misdemeanor offenders.

For example, someone who has been arrested repetitively for drinking and driving and will not stop gets charged with a misdemeanor case. The judge presiding over that case may easily recognize that individual poses a high risk of getting back in the car and hurting someone, but the judge has no way of holding the person without imposing a high money bail.

On the felony side, money bail has not been entirely eliminated either, Byers said. But judges are now equipped to assess risk.

“It appears that in order to completely eliminate money out of the whole system, you’d have to change the Constitution,” Byers said. “And that won’t be easy because there will be a big debate.”

Until that can be done, the court’s task force has made progress on its original 65 recommendations, not only with regard to bail reform but also fines and fees.

Rep. Eddie Farnsworth (R-Gilbert)
Rep. Eddie Farnsworth (R-Gilbert)

Several bills that came out of the court’s efforts died during the last legislative session when House Judiciary Committee Chairman Eddie Farnsworth, R-Gilbert, refused to hear them.

But Byers said legislation will be brought back for consideration to address matters like judges’ discretion in imposing fines that offenders may not be able to cover.

“We know we’re changing a culture, and that’s a big effort that will go on for years,” he said. “Whenever you go to change a culture, you have to expect resistance and doubt. But I’ve been amazed at how many judges are embracing this. They’ve seen these problems for years, and they’re just happy we’re doing something about it.”

Arizona Supreme Court agrees to consider frozen embryo case

court decisions binders

The state’s high court has agreed to wade into the controversial issue of the rights of parties in a divorce to decide what happens to the eggs they previously had fertilized and whether one can be forced to become a parent.

In a brief order August 28, the justices of the Arizona Supreme Court said they want to review whether the Court of Appeals properly interpreted a legal agreement about who gets to use the frozen embryos when the formerly married spouses cannot agree.

But the bigger issue could be whether the justices will direct courts handling such cases to balance the competing interests of the parties in deciding whether to let an embryo be implanted or ordering it donated to someone else – or even destroyed. That would put trial judges in the position of having to consider whether the argument of one person to bring the embryos to life can be outweighed by the argument of the other who does not want that.

And that even could result in situations where a now-former spouse who did not want the embryos brought to term and does not now want to be a parent actually being legally responsible for child support.

Less clear is how much of a precedent will be set by the Supreme Court.

Ruby Torres
Ruby Torres

In 2018 – and directly in response to this case – the Arizona Legislature approved a new law saying that judges must grant viable embryos to whichever parent will allow them to be born, regardless of what a couple decided when first having an embryo frozen.

On paper, that means Arizona law now reads that a man’s decision he no longer wants to be a parent can be overridden if his ex-wife wants to become a mother, using an embryo he helped to create. But it also means that a woman could wind up having no say as her former husband gives the frozen embryos to a new spouse who would give birth to a child who is biologically related to her.

The constitutionality of that new law, however, remains untested. And that leaves only this case for the justices to decide the questions of contracts, the rights of the biological parents – and whether the state can mandate parenthood on someone.

Court records show that Ruby Torres was diagnosed in 2014 with bilateral breast cancer, with her oncologist saying she would need to begin chemotherapy within a month. He also told her that treatment would impair her ability to get pregnant.

John Terrell, then her boyfriend, agreed to be the donor after learning she had asked someone else.

An agreement provided by Bloom Reproductive Institute, which was handling the procedure, spelled out that any resulting embryo would be their joint property. Both also agreed to a provision that said in the case of divorce that it would be up to a judge to decide whether to allow the embryo to be used to achieve pregnancy or to donate it to another couple.

What ultimately occurred is the trial judge directed the fertility clinic to donate any remaining embryos to a third party or couple, concluding that Terrell’s “right not to be compelled to be a parent outweighed Torres’ right to procreate and desire to have a biologically related child.”

But the Court of Appeals, in a split ruling earlier this year, called that decision flawed.

On one hand, appellate Judge Jennifer Campbell, writing for the majority, acknowledged that the contract Torres and Terrell signed spells out that in the event of a separation or divorce the embryos could be used solely with the “express, written consent” of both parties. But she said that Terrell should not be allowed to use his veto power.

“Applying this approach invites individuals to hold hostage their ex-partner’s ability to parent a biologically related child in order to punish or to gain other advantages,” she wrote. “We decline to give one party a blanket veto.”

Campbell also said what weighs in favor of Torres is that she has a less than 1 percent chance of becoming pregnant by normal means and only a “remote possibility” of adoption or insemination with a donor embryo.

The decision by the Supreme Court to review that ruling is not entirely a surprise. Appellate Judge Maria Elena Cruz said the decision by her colleagues was legally wrong. She said the two other judges on the panel were ignoring a constitutional provision which says the state cannot interfere with contracts.

She agreed that the agreement the couple signed does have language leaving the fate of the embryos up to a trial judge. But Cruz said that fails to recognize the mutual-consent requirement to use them.

“Nothing in the agreement states that a court is free to disregard the other terms of the agreement when it decides the question,” she wrote. She also said Torres is not contesting the provision about the “express, written consent of both parties,” saying the majority has “wholly cast (that language) aside.”

And there’s something else. Cruz also said the majority ignores the fact that there’s another side to the legal right to procreate – the right to avoid procreation.

Arizona Supreme Court allows ballot measures to stand

Arizonans will be able to vote in November on two controversial ballot measures even though petition circulators did not comply with the law, the state Supreme Court ruled late Wednesday.

In separate orders, the justices said those who gather signatures for money are required to register with the Secretary of State’s Office for each petition campaign for which they work. And Chief Justice Robert Brutinel said that did not happen in either the initiative to require disclosure of “dark money” in politics or another to cap medical debt payments.

But Brutinel pointed out that the Secretary of State’s Office provided no procedure for those already registered to circulate other petitions to submit new registrations. He said that made it physically impossible for circulators to comply with the law.

More to the point, Brutinel said knocking the petition drives off the ballot for a problem that circulators and organizers did not create – and could not fix – “would unreasonably hinder or restrict” the constitutional right of the people to propose their own laws. So he and his colleagues agreed that the signatures gathered by those who did not register anew should count.

That conclusion is crucial. A contrary ruling would have left both measures short of the number of valid signatures needed to appear on the Nov. 8 ballot.

Still undecided is the fate of a third initiative which would reverse some of the changes in election laws approved by the Republican-controlled legislature. Its fate hangs on whether the courts decide on the validity of thousands of petition signatures, unrelated to the registration requirement.

Wednesday’s rulings are setbacks for business interests who oppose both greater financial disclosure of who is putting money into political campaigns and those who believe it is a bad idea to provide individuals more protection from creditors.

In seeking to keep them off the ballot, attorneys Thomas Basile and Kory Langhofer, who represented the foes of both measures, pointed out state law requires anyone who is a paid circulator to first register before gathering signatures. The same requirement exists for out-of-state residents.

And that requirement, they argued, exists for each petition they want to circulate and for each election.

They said that did not occur for many circulators, saying that means none of the signatures they gathered were valid or could be counted.

Brutinel said the lawyers are legally correct. But the justices refused to void the signatures.

“Any circulators’ lack of compliance with (the law) does not invalidate the signatures gathered by these circulators on the record or circumstances before us,” he wrote.

And the key is that record – and those circumstances.

Brutinel pointed out the online portal set up by the secretary of state to register circulators does not allow any individual to submit more than one affidavit.

“By also refusing to accept manual submission of a hard copy affidavit, the secretary of state rendered it impossible for circulators to successfully submit a registration application as required … if they had already registered to circulate other petitions,” he wrote. And that would make it unfair and improper to keep a measure off the ballot for failing to comply with a law that could not be complied with, he said.

Going forward, Brutinel said, he and his colleagues have “every expectation” the secretary of state to fix the problem.

Separately, the justices rejected other challenges aimed at keeping the measures off the ballot, including the failure of circulators to provide apartment numbers with their addresses.

What’s dubbed the Voters’ Right to Know Act is designed to eliminate exemptions in state campaign finance laws.

Those statutes require public disclosure of who is spending money to influence candidate elections and ballot measures. But state lawmakers crafted an exception for “social welfare” organizations who are free to run commercials seeking to influence the outcome but can hide the names of their donors.

The initiative seeks to deal with that by requiring the disclosure of true source of donations of more than $5,000 on political campaigns. And former Attorney General Terry Goddard, who is leading the effort, said those dollars would have to be traced back to the original source and cannot be “laundered” through a series of groups.

Foes include the business-oriented Free Enterprise Club. Its president Scot Mussi, called it “an unconstitutional measure designed to silence and harass private citizens, and non-profit groups from exercising their First Amendment rights.”

This is the third try for the plan.

A similar 2018 effort failed after foes mounted a court challenge to some of the 285,000 signatures collected, many by paid circulators. The 2020 measure using only volunteers faltered during the Covid pandemic which included, for a period of time, a stay-at-home order.

The measure on debt, if approved by voters, would increase the amount of equity someone could have in a home to keep it from being seized in bankruptcy to $400,000, up from $250,000. And it would mandate annual cost-of-living increases in that figure rather than having to wait for state lawmakers to marshal the votes for future changes.

Current law also allows individuals to keep up to $6,000 in household furniture, appliances and consumer electronics. That would increase to $15,000, also with inflation adjustments.

And the protected equity in a motor vehicle would go from $6,000 to $15,000 for most individuals, with the figure going from $12,000 to $25,000 for any debtor or family member with a physical disability.

Separately, the measure would cap the amount of someone’s wages that could be attached. And another provision specifically limits the amount of annual interest that could be charged on medical debt to no more than 3%.

Michael Guymon, president and CEO of the Tucson Metro Chamber of Commerce, argued that the measure would restrict the ability of Arizonans to access credit and loans.

“This is because lenders will have little or no ability to recoup money from people who don’t pay their debts,” he said in a statement against the plan.


Arizona Supreme Court allows death row execution to proceed

PHOENIX (AP) — The Arizona Supreme Court is allowing the state to move forward with the execution for death row inmate Murray Hooper next month. 

The state’s high court granted the motion for a warrant of execution Wednesday. 

Murray Hooper

The 76-year-old will die by lethal injection or gas on Nov. 16, according to the warrant signed by four justices. The other three recused themselves. 

Kelly Culshaw, an assistant federal public defender representing Hooper, did not immediately respond to a message seeking comment. 

Hooper would be the third inmate put to death this year after Arizona recently resumed carrying out executions. 

He and two co-defendants were sentenced to death for the New Year’s Eve 1980 murders of a Phoenix man and his mother-in-law during a home robbery. 

The other two men died before their sentences could be carried out. 

When Arizona Attorney General Mark Brnovich announced in July that he intended to seek the warrant, he called death “the appropriate response … for the victims, their families and our communities.” 

The state hadn’t executed anyone for nearly eight years before Clarence Dixon died by lethal injection in May for the 1978 murder of a 21-year-old Arizona State University student. 

Frank Atwood was executed in June at the state prison in Florence for the 1984 killing of an 8-year-old Tucson girl. 

There are 111 inmates on Arizona’s death row, and 22 have exhausted their appeals, according to the Attorney General’s Office. 

Arizona Supreme Court backs Horne in challenge to $400,000 campaign fine

Attorney General Tom Horne and his former campaign consultant Kathleen Winn testify regarding alleged campaign finance violations. (Photo by Tom Tingle/The Arizona Republic)
Attorney General Tom Horne and his former campaign consultant Kathleen Winn testify regarding alleged campaign finance violations. (Photo by Tom Tingle/The Arizona Republic)

The Arizona Supreme Court ruled today that Yavapai County Attorney Sheila Polk violated Tom Horne’s due process rights by levying a $400,000 fine against him and a former aide over campaign finance violations.

The decision overturned two lower court rulings and handed the former attorney general a major victory in the scandal that ultimately contributed to his election defeat.

The justices ruled that due process does not permit Polk to levy the fine against Horne and Kathleen Winn, participate in prosecuting them, and serve as the final decision-maker in rejecting an administrative law judge’s recommendation that the case be dismissed, which the Supreme Court noted would “receive only deferential judicial review.”

Writing for the unanimous court (three justices recused themselves and were replaced by other judges), Justice Clint Bolick said Polk could have made both the initial decision on the fine and the final determination to reject the administrative law judge’s decision. But by taking an active role in the prosecution, where Polk acknowledged being involved in preparation and strategy, she deprived Horne and Winn of their due process rights, even if there was no actual bias on Polk’s part, Bolick said.

Polk could also have supervised the attorneys involved in the prosecution, but she needed to be walled off from any advocacy functions or strategic decision-making if she was going to ultimately decide whether to reject the administrative law judge’s recommendation, Bolick continued.

Bolick said once an official determines that a legal violation has occurred, that official “can be expected to develop a will to win at subsequent levels of adjudication.”

“At minimum, in the context of a regulatory agency adjudication, a process that involves the same official as both an advocate and the ultimate administrative decision-maker creates an appearance of potential bias,” he continued.

Horne called the ruling “very good news.”

“I was hit with a false, malicious, defamatory charge of having coordinated with an independent campaign. The only neutral judge to hold a hearing and take evidence was the Administrative Law Judge, who found for defendants,” Horne told the Arizona Capitol Times in an email.

In a statement provided to the Capitol Times, Polk said she carefully followed the administrative process as set forth in Arizona law, but the Supreme Court decided that due process imposed additional requirements that are not in the statutes.

“As a member of the executive branch, it is my duty to apply the law as written by the Legislature while it is the duty of the Supreme Court to interpret the law,” Polk wrote. “I respect our Supreme Court and the rule of law. The case will be returned to the Attorney General’s Office for action in accordance with the court’s ruling.”

Horne and Winn aren’t necessarily off the hook yet. Rather than dismiss the case entirely, the Supreme Court sent it back to the Attorney General’s Office so a neutral decision-maker can make a final decision on whether to accept Administrative Law Judge Tammy Eigenheer’s 2014 recommendation to drop the case.

Horne declined to comment on the possibility that he and Winn could still be subjected to a fine. Meanwhile, the Attorney General’s Office did not immediately respond to inquiries about who would handle the case. Attorney General Mark Brnovich defeated Horne in the 2014 Republican primary, when the illegal coordination allegation played a major role.

Eigenheer opined that the Yavapai County Attorney’s Office did not provide sufficient evidence that Horne illegally coordinated with Winn in 2010, when she ran an independent expenditure committee that aided his campaign for attorney general. Polk rejected the recommendation and forged ahead with the case.

Late in the 2010 race, Winn’s group, Business Leaders for Arizona, ran roughly $500,000 worth of attack ads against Democratic nominee Felecia Rotellini. Investigators from the Maricopa County and later the Yavapai County attorney’s offices concluded that Horne and Winn had illegally coordinated in creating the campaign commercials. Polk ultimately fined the pair $400,000.

Maricopa County Attorney Bill Montgomery’s October 2012 announcement of the coordination allegations was a political bombshell that hounded Horne for the remainder of his term as attorney general. That, along with allegations by a former staffer in 2014 that Horne had been running his re-election campaign out of the Attorney General’s Office, helped lead to Horne’s defeat in the Republican primary by Brnovich, who went on to win the general election race.

Arizona Supreme Court explains decision to kill vote

The Arizona Supreme Court from left are Justices Bill Montgomery, John Lopez, Ann Scott Timmer (vice chief justice), Robert Brutinel (chief justice), Clint Bolick, James Beene, and Kathryn King.

Arizonans have no constitutional right to block lawmakers from cutting – or even eliminating – taxes, the Arizona Supreme Court ruled Friday.

In an 18-page decision, the majority of the court acknowledged the framers of the Arizona Constitution gave broad powers to voters to not only create their own laws but to review – and veto – those approved by elected legislators.

But Justice John Lopez, writing for himself and four others, said that right does not extend to measures for the “support and maintenance” of the state.

Attorneys for Invest in Arizona never really contested the idea that a referendum could not challenge a measure to increase taxes.

That’s because such a move, if backers get sufficient signatures, would hold up enactment until a public vote. And that could deny government the dollars needed to operate.

In this case, however, attorney Andy Gaona, representing Invest in Arizona, pointed out to the court that the measure approved in 2021 by the Republican-controlled legislature actually cut tax revenues by $1.9 million, and in a way to largely benefit the wealthiest.

Put another way, he told the justices the only thing that his organization sought to send to the ballot for voter review was the desire of GOP lawmakers and Gov. Doug Ducey, who signed the measure, to forego revenues that otherwise would flow into state coffers. Gaona said holding up the tax cut plan and giving the public a chance to review it – including who benefits – would not have affected the ability of state agencies to do their jobs.

Friday’s ruling, however, shows the majority were unwilling to constrain lawmakers that way.

Until last year, Arizona had a “progressive” income tax, with the rate tied to earnings.

So, anyone with a taxable income up to $26,500 a year paid a tax rate of 2.59%, with the earnings number doubled for married couples filing jointly. That rate increases in steps, to the point where taxable earnings on individual earnings above $159,000 were taxed at 4.5%.

The law imposed a single 2.5% tax rate on all incomes beginning in 2025. Legislative budget staffers peg the revenue loss at $1.9 billion a year.

Ducey has repeatedly sought to portray the measure as providing a tax cut of about $300 a year for the “average Arizonan.”

But an analysis of the package by legislative budget staffers puts the annual savings for someone making between $25,000 and $30,000 a year at $11. That increases to $96 for those in the $50,000 to $75,000 taxable income range.

At the other extreme, taxpayers with income of between $250,000 and $500,000 would see an average $3,071 reduction in what they owe. And that increases to more than $7,300 for those earning from $500,000 to $1 million.

Invest in Arizona, the successor to the group that got voters in November 2020 to approve Proposition 208, an income tax surcharge on the wealthy, gathered the necessary signatures on petitions to put the measure on hold until votes can decide whether to ratify or reject it.

That led to a legal challenge by the business-oriented Free Enterprise Club, citing that “support and maintenance” provision in the constitution – the one the majority accepted.

David Lujan, director of the Arizona Center for Economic Progress, one of the organizers of the petition drive, said the ruling is disappointing.

“The income tax cuts passed by the legislature last year will have a devastating impact on our state’s future,” he told Capitol Media Services. And then, Lujan said, there’s the analysis that those cuts “disproportionately benefit only the richest 5%.”

He also said the permanent reduction will make it “extremely difficult to adequately fund education or other critical state needs.”

But the problem is even more complex than that.

Theoretically speaking, future lawmakers could undo the tax cuts if collections do not keep pace with expenses.

Only thing is, a separate constitutional provision says it takes a two-thirds vote of both the House and Senate to enact new taxes or even to rescind prior reductions. And that has never happened.

“We chose to do the referendum because we knew that once tax cuts go into effect, there is little chance of reversing them later,” Lujan said.

Nothing in Friday’s ruling keeps any group from gathering signatures to put a tax hike on the ballot.

Even that, however, is not simple.

Voters did approve Proposition 208 in 2020 to impose a 3.5% surcharge on income of individuals making at least $250,000 a year, with the more than $900 million it was estimated to raise earmarked for K-12 education. But the Supreme Court voided the levy after concluding there was no legal way to spend the dollars collected without exceeding a constitutional limit on education spending.

And there’s something else.

Republican lawmakers put a measure on the November ballot that would put an additional hurdle in the path of those seeking voter-approved tax hikes. Proposition 132, if approved, would require any such future levy to be approved by 60% of those who vote, versus a simple majority.

“We are making it increasingly difficult to raise revenues in this state,” said Lujan. “And that is going to be a big problem when we have our next economic downturn.”

There is another possible workaround.

Invest in Arizona or some other group could ask voters to amend the section of the constitution the court said Friday denies voters the right to overrule changes in tax law.

Such a change would spell out that the public does get the last word when lawmakers are cutting taxes. But the earliest that could go to the ballot is 2024.

Not everyone on the high court agreed with Lopez.

Justice Bill Montgomery, writing for himself and Justice James Beene, said the history of the creation and early interpretation of the Arizona Constitution convinces them that the framers never intended to create a blanket immunity protecting legislatively approved tax measures from voter purview.

“A categorical exemption from the referendum is a categorical limitation on a power reserved by the people in (the constitution) that has no support in the historical record,” Montgomery wrote.

More to the point, he said that only those revenue measures “immediately necessary” for state operations cannot be referred to the ballot.

In this case, he said, there was no finding by lawmakers the tax cut was immediately necessary. And Montgomery noted it passed without a two-thirds vote of either the House or Senate, something that would have designated the tax cut as an emergency.

Friday’s ruling pleased Scot Mussi, president of the Free Enterprise Club, which successfully quashed a public vote.

“The referendum process was never meant to be used to block the legislature’s ability to appropriately budget and set tax rates,” he told Capitol Media Services. “Now the court has affirmed that position.”


Arizona Supreme Court limits right of tribes to intercede in adoption cases


The ability of tribes to intercede in the adoption of Native American children not living on the reservation is limited and not absolute, the Arizona Supreme Court ruled today.

In a unanimous decision, the justices rejected arguments by the Gila River Indian Community that Arizona courts must transfer such cases to tribal courts. Writing for the court Chief Justice Scott Bales said while such transfer is permissive, it is not a right.

And in this case, the high court said a juvenile court judge was correct in deciding to rebuff the tribe’s request.

The lawsuit is part of an ongoing effort by the Goldwater Institute to challenge the federal Indian Child Welfare Act, which, in some circumstances, gives tribes purview over what happens to Native American children not living on the reservation who are taken from biological parents. Attorneys who are representing non-Native parents who are trying to adopt those children have charged that the law is racist because it has one set of standards for Indian children and another for those who are not.

Those efforts to date have come up short, with a federal judge earlier this year throwing out a separate challenge to that law.

But attorney Avi Dynar, who represents the prospective non-Indian adoptive parents in this case, said Tuesday’s ruling is at least a small victory.

“This decision from the Supreme Court is chipping away at one of the important provisions of ICWA,” he said. “This is an important decision that puts tribes on notice that they can’t misuse the Indian Child Welfare Act.”

While saying he was disappointed in the ruling, tribal Gov. Stephen R. Lewis sought to minimize its importance and scope.

In a prepared statement, he noted the decision still preserves the rights of tribes to intercede – and demand transfer to tribal court – early in the process, at the point where the state seeks to sever the parental rights of a Native American parent who does not live on the reservation. That occurs before any hearing on who can adopt.

And Lewis said the lesson of today’s ruling will not be lost on tribes.

“Because of the aggressive involvement of anti-Indian organizations like the Goldwater Institute, Indian tribes have become proactive in seeking transfer to tribal courts early in state dependency cases,” long before any adoption hearings in which they may have no say, he said.

Congress adopted ICWA in 1978 amid concerns that state courts were severing parental rights and approving adoptions of Native-American children who did not live on reservations. The congressional record shows that Congress was concerned that these children were being increasingly adopted by non-Indian families.

That law requires state courts, when placing Indian children who do not live on a reservation for adoption, to give preference to a member of the child’s extended family. That is followed by priority by other members of the child’s tribe and, ultimately, other Indian families.

This particular case involves a girl, not identified, who was born off the reservation in 2014 to a Native-American woman. Court records show that, at the time of her birth, both she and her mother tested positive for amphetamines and opiates.

About a week later, the Arizona Department of Child Safety placed her with foster parents where she has been ever since.

State officials eventually sought to terminate the mother’s rights.

As required by federal law, the Gila River community, where the mother was a member, was notified but did not object. Later, a judge concluded that the foster parents were meeting the child’s needs and started the process of allowing them to adopt the girl.

Only then did the tribe demand the case to be transferred to tribal court.

Bales, in Tuesday’s ruling, rejected arguments by tribal attorneys that the demand for transfer has to be honored by state courts.

He said that right to transfer applies only at the point that the state seeks to terminate the parental rights of a tribal member.

In this case, he said, the court acknowledged that, generally speaking, Native children who are removed from their off-reservation homes should be placed with tribal members. But Bales said the trial judge found good cause to deviate from that. More to the point, the tribe did not appeal that ruling.

It was only after an adoption hearing was scheduled that the tribe moved to transfer the matter.

Bales said the trial judge’s decision was correct and did not violate the federal law. He said the tribe lost its absolute right to transfer once the mother’s rights were terminated.

Bales stressed, though, that Tuesday’s ruling does not preclude a tribe from requesting transfer of adoption hearings to its courts. But he said state courts still maintain the right to determine if there is “good cause” to deny the request.

The challenge to the ICWA itself continues with an appeal to the 9th Circuit.

According to the Goldwater Institute, the statute is racist by giving preference to tribal members because it overrules state laws requiring courts to give prime consideration to the “best interests of the child,” regardless of whether that means placement with a tribal member or someone else.

Arizona Supreme Court pulled into political fray

The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick, Ann Scott Timmer.
The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick, Ann Scott Timmer.

The Arizona Supreme Court’s integrity is under attack by supporters of the defunct Invest in Education Act who accuse the justices and Gov. Doug Ducey of collusion.

But the accusations are fueled not by hard evidence but rather by an assumption grounded in speculation and unverifiable information spread by the Ducey campaign.

The court and its justices have been swept up in election season politics that typically bypass the judicial branch. And the lasting impact may not be a shift in electoral chances of Ducey or Democratic gubernatorial candidate David Garcia in November, but a threat to judicial independence.  

On September 9, reporters on a local news talk show revealed that representatives from Ducey’s campaign had told them the Supreme Court decision on the Invest in Education Act was 5-2.

The initiative would have increased state income taxes on individual earnings above $250,000. It would have created a dedicated revenue stream of about $690 million a year for education.

The full Supreme Court ruling, including how the justices sided, has not been released yet.

Ducey and his campaign have since denied that they have any insider information on the Supreme Court ruling and he said the information given to reporters was not presented as fact.

“That’s a rumor. I have no idea about that,” Ducey said September 18.

Ducey’s campaign manager J.P. Twist dismissed the idea of a leak at the court. He did not disclose where the campaign got the vote information from, but said it was a third-hand rumor that didn’t come from the court.

But the damage was already done.


When Ducey’s campaign appeared to have inside information about the demise of the initiative, Democrats and the initiative’s supporters painted the news as a sign of clear collusion between the executive branch and the court.

“This is what corruption looks like,” Garcia tweeted. “Do Arizonans want four more years of Ducey tipping the scales of justice? I think not.”

Garcia spokeswoman Sarah Elliott said the onus is on Ducey’s team to clarify to voters where the campaign got its information.

But without the release of a full opinion on the ruling, there’s no immediate way to prove any misconduct occurred.

Joe Thomas, president of the Arizona Education Association and a Red for Ed stalwart, said Arizonans may never know what really happened, but something doesn’t feel right.

“The frustrating part is no one knows if it’s accurate. No one knows yet, although there’s an investigation whether there was a leak,” Thomas said. “But it sure looks like one.”

Between the “unprecedented maneuver” by the court to strike the initiative from the November ballot and the Ducey campaign purporting to know the vote count, the situation simply stinks, he said.

Yet he acknowledged there has been no evidence beyond what Ducey’s campaign told reporters to support accusations of corruption.

Former Supreme Court Justice Thomas Zlaket said he can’t remember a time when anyone — and certainly not a large contingent of people — seriously questioned the process or the integrity of Arizona’s high court.

Zlaket, who served on the court for 16 years before stepping down in 2002, said a breach among the justices or court staff is highly unlikely.

“I do know some members of the court and they would never, in my opinion, ever leak anything to another branch of government,” he said. “They know it’s just not the way the courts operate.”

The justices have maintained a common practice that no information on a ruling will be given to the parties, their attorneys or the public until an opinion is formally released, Zlaket said. Even law clerks are trained to keep quiet until an opinion is put out.

Half the people involved in any case are going to be unhappy with the outcome, Zlaket said. There’s nothing wrong with informed criticism, but the idea that justices or court staffers are doing something to undermine the public’s trust seems implausible, he said.

The judicial branch is unique because it’s free from the political pressure that pervades the other two branches of government, Zlaket said. The public has instilled their trust and confidence in the court to independently decide their rights and obligations, he said.

“If the public loses faith in the third branch of government and starts to believe that it is nothing more than another political arm of government like the executive, like the legislative branch, then it almost seems to me we’ve got a serious problem,” he said.

These accusations have not gone unnoticed, but the court has not started a formal investigation, said Jerry Landau, the court’s director of governmental affairs. Court staff is discussing the allegations with those involved in judicial opinions, but not questioning anyone outside the court.

“Someone made a statement. Is it true? We don’t know,” he said. “What’s the basis for it? We don’t know. … We’re simply asking if anyone knows about it, and that’s really the end of it.”


The court was targeted by the initiative’s supporters even before the purported vote was shared with reporters.

About a week after the Invest in Education Act was kicked off the ballot, Arizona Educators United, the group behind the Red for Ed movement, vowed retribution in November. They targeted Justices Clint Bolick and John Pelander — the only two justices up for retention this year.

The Invest in Education committee — the group behind the initiative — is not taking part in the effort to target Bolick and Pelander.

The response rankled even some who typically align with the goals of the initiative.

Attorney Dan Barr, on Twitter, deemed the retention election challenge “idiotic.”

“A bedrock of our judicial system is that of judicial independence, and when you start targeting judges for decisions you don’t like, then you make the judges far more wary of doing what they think is the right thing to do,” Barr said in an interview.

He said the court’s critics should have at least waited for the opinion to be released before criticizing it.

The campaign against Bolick and Pelander isn’t just absurd, he said, it’s offensive.

The state Commission on Judicial Performance Review found both justices met judicial performance standards by a vote of 27-0. And according to their reviews, both received integrity scores of 100 percent from attorneys who returned commission surveys.

Bolick said he cannot begrudge anyone engaging in civic activism, but he hopes the effect is not to politicize the court.

“Punishing judges for a good faith decision would be a very concerning precedent,” he said.


He suffered his fair share of losses during his career as an attorney, Bolick said, and he may be the only person in the state to have had two ballot measures thrown off the ballot.

“What did we do? We dusted ourselves off. We got it right the next time,” he said.

Bolick dismissed the suggestion that the justices may have been influenced by Ducey or his administration as “silly.”

The alleged leak is concerning to the justices, he said. If the vote truly was leaked, he does not believe one of his colleagues was responsible.

But he said that anyone would purport to have that information is distressing in any case.

Josselyn Berry, co-director of Progress Now, a left-leaning advocacy group, said some people were quick to suggest corruption or collusion between the Supreme Court and the executive branch after the Invest in Education Act decision because of Ducey’s push to expand the court in 2016.

Bolick worked at the Goldwater Institute before Ducey tapped him to serve on the Supreme Court. He had never been a judge, which raised some eyebrows in 2016, Berry said.

Ducey named two new justices after the Republican-controlled Legislature agreed to expand the court to seven members from five.

House Speaker J.D. Mesnard sponsored the bill to expand the court, which was criticized as an effort by conservatives to pack the court in their favor. But it’s news to him if he or his fellow legislators ever had any influence over the court.

“As the kind of head of half of one of the branches, I’m wondering where that sway is,” he said.

Berry didn’t go so far as to suggest there was a leak at the Supreme Court, but she said Invest in Education supporters are confused why Ducey’s campaign appeared to have information that wasn’t publicly available.

Supporters of the initiative were devastated when the court denied the measure a spot on the November ballot.

“A lot of people worked hard to get Invest in Ed on the ballot,” she said. “270,000 people signed the initiative. A lot of teachers and parents and people worked to get that to happen and so when it was ripped off the ballot … I think there was a lot of anger and upset because they wanted the chance to vote on that.”

But if conservative sway over the court is of the utmost concern here, targeting two sitting justices may do nothing to change that.

Most polls indicate that Ducey is favored to win re-election in November. In that case, should Bolick or Pelander or both lose in the retention election, Ducey would appoint their replacements.

Arizona Supreme Court punishes former lawmaker for misconduct as justice of the peace

Sen. Paula Aboud (File photo)
Sen. Paula Aboud (File photo)

The Arizona Supreme Court has rebuked a Pima County justice of the peace for misconduct.

The court’s announcement Tuesday says it censured Justice of the Peace Paula Aboud, who served in the state Senate from 2006 to 2012, because she took a copy of an assessment and answer key from her judicial orientation mentor while he was out of the room.

The assessment was to be administered the next day and Aboud has said she took the assessment to play a prank on the mentor.

A Commission on Judicial Conduct hearing officer recommended the censure, saying Aboud’s conduct was a one-time incident but was “too offensive to ignore or to resolve informally.”

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Arizona Supreme Court returns convicted murderer to death row


The Arizona Supreme Court reinstated the death penalty today for convicted murderer Darrel Pandeli after finding a Maricopa County Superior Court judge overstepped his bounds when reviewing the case. 

According to the court’s unanimous ruling, Judge Robert Gottsfield repeatedly second-guessed defense counsel’s strategy when he should have offered deference. The high court found Gottsfield “did not explain how Pandeli suffered prejudice from any of the acts or omissions” he believed to be an ineffective defense.

“Simply disagreeing with strategy decisions cannot support determination that representation was inadequate,” Justice Clint Bolick wrote in the court’s opinion.

Darrel Pandeli

Pandeli was sentenced to death by a judge in 1998 for the murder of Holly Iler.

The state appealed Gottsfield’s 2015 decision to throw out the death penalty.

The state Supreme Court categorically disagreed with Gottsfield finding that 15 claims of ineffective assistance of counsel and a due process violation were grounds enough for throwing out the death sentence.

The justices noted many of Gottsfield’s findings centered around the fact that Pandeli’s trial counsel, Gary Shriver and his co-counsel Dawn Sinclair, made a “spur-of-the-moment decision” not to cross-examine the state’s key witness, psychologist Dr. Brad Bayless. Gottsfield determined Bayless “frequently doesn’t have any scientific basis for his opinion” that Pandeli was psychotic and “that there’s no saving him.”

Robert Gottsfield

Shriver and Sinclair testified to that decision’s “wrongheadedness,” which constituted ineffective assistance in Gottsfield’s view, but the hight court today determined their decision was informed by more than a lack of preparation.

Shriver testified that he knew Bayless to be adversarial and “hard to control” on the stand. Ultimately, Shriver decided simply cross-examining Bayless “doesn’t mean that you are going to successfully examine him…”

The Supreme Court determined “no finding was made that the decision lacked ‘some reasoned basis.’”

Pandeli had also asserted ineffective assistance of counsel claims based on various alleged failures to lodge objections, including references to serial killers and presentation of his violent sexual fantasies; the alleged failure to effectively cross-examine the defendant’s brother Chris Pandeli, who was believed to have “some sort of damaging information” that may come out during lengthy questioning; and Sinclair’s in-experience as a trial attorney, which the state Supreme Court found to be irrelevant given Shriver’s extensive experience.

Likewise, the court’s opinion went on, Gottsfield was wrong to uphold Pandeli’s due process claim because he “implied the jury must be given only objectively accurate expert testimony.” Gottsfield determined “it is clear” that Pandeli suffered from a “serious mental illness” even though Bayless testified he had exaggerated during cognitive tests and simply had an antisocial personality disorder.

“The [post-conviction relief] court did not find that Dr. Bayless relied on any inaccurate facts to arrive at his opinions; the court simply disagreed with those opinions,” Bolick wrote. “However, a defendant’s due process rights are not violated by a good-faith ‘battle of the experts.’”

Iler was the granddaughter of Donald W. Douglas, Sr., whose company Douglas Aircraft went on to become McDonnell Douglas. She turned to prostitution to support a drug habit, according to The Arizona Republic, and Pandeli hired her for sex. The arrangement turned violent when Pandeli was unable to perform.

Iler’s beaten body was found naked in a Phoenix alley, her throat slashed and breasts mutilated.

Pandeli was also convicted for the 1992 murder and mutilation of another prostitute, Teresa Humphreys. For that, he was sentenced to 20 years in prison.

Arizona Supreme Court rules company not liable for ‘take-home’ asbestos

The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick, Ann Scott Timmer.
The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick, Ann Scott Timmer.

Arizona companies have no duty to protect family members from exposure to toxic materials their employees bring home on their work clothes, the Arizona Supreme Court ruled Friday.

In the first ruling of its kind in Arizona, a majority of the justices rejected arguments by survivors of Ernest Quiroz that Reynolds Metal Co. should be held legally responsible for his mesothelioma, a form of cancer frequently associated with asbestos exposure, and his eventual death. Justice Andrew Gould, writing for himself and four other justices, said the company owed no duty to protect anyone other than its own employees, with which it had a special relationship.

And Gould said the mere fact that an injury to others might be foreseeable is not, by itself, enough to hold the company liable.

That conclusion drew a stinging dissent from Chief Justice Scott Bales.

“Although the employer created the risk of physical harm — and failed to warn its employees or the persons ultimately injured — the majority concludes that the employer must be immunized from even the prospect of liability, no matter how reckless or otherwise unreasonable its conduct may have been,” Bales wrote for himself and Justice John Pelander. “One would think the children had a greater right to be free from others unreasonably exposing them to risks of debilitating and life-threatening illness.”

Court records show Quiroz lived in his father’s house in Maricopa County from 1952 to 1966, during which time his father worked for Reynolds Metal. Quiroz moved to California in 1966 for a decade and then Michigan until his death in 2014.

In the lawsuit, survivors claim that Quiroz’s father was exposed on numerous occasions to asbestos-containing products and machinery. That, the claim says, resulted in the release of respirable asbestos fibers which contaminated the employee’s clothing, tools, car, body and general surroundings.

The result, the survivors say, is that Quiroz breathed these fibers as a result of direct and indirect contact with those items.

Attorneys for the family argued that Reynolds, which has since merged with Alcoa and now operates under that name, had a duty to avoid creating hazardous conditions on its property that would cause injury to people off the property.

Gould, however, said there are several problems with that theory. And they all come down to the court’s conclusion that Reynolds, as the employer, had no legal duty to avoid harm to Quiroz.

He said a duty can be created if there is a “special relationship” between the company and the person that was injured.

“Quiroz did not have an employer-employee relationship with Reynolds, and there is no allegations that Reynolds created a special relationship with Quiroz based on a contract or a negligent undertaking,” Gould wrote.

Bales, however, said the issue is not that simple. He said that landowners like Reynolds owe a “general duty of care” to anyone who is injured by its “risk-creating conduct,” even when that harm occurs off premises.

But Gould said that isn’t the law in Arizona.

He acknowledged a 1987 Supreme Court ruling against the owner of an asbestos mill in a situation where fibers and waste from the mill blew into a neighboring trailer park. In that case, the amount of asbestos blown onto the property was “substantial,” the governor declared the park a disaster area, and steps were taken to relocate the residents.

In this case, however, the family of Quiroz is not alleging that Reynolds created that kind of nuisance. More to the point, Gould said, the ruling in that case addressed damages to the residents of the trailer park, not whether the owner of the mill had a duty to protect them.

“It simply affirmed the well-established rule that when a landowner creates a nuisance that physically intrudes upon another person’s property, it may be liable for the damages caused by the nuisance,” Gould wrote.

Bales, however, said that misses the point. He said the allegation is that the company operated in a manner of exposing its workers without warning to toxic asbestos dust and failing to provide workplace measures which resulted in that dust ending up beyond the facility.

“Reynolds failed to even warn its workers, much less afford them a means to prevent their carrying home asbestos dust in their clothing,” he said.

“Thus, the determination of liability should not turn on whether the injury was caused by wind-borne asbestos, employee-borne asbestos, or an errant fly ball,” Bales wrote. “A landowner owes a duty of care when it exposes others to risks of injury, even when the harm occurs off premises.”

Gould acknowledged that courts in some other states have recognized a duty in what amount to “take-home asbestos cases.”

That includes a case won by Michael Gurien who represented the family in this case. He got a ruling two years ago by the California Supreme Court which said employers have “a duty to take reasonable care” to prevent the transmission of asbestos dust “where it is reasonably foreseeable that works, their clothing, or personal affects” will carry the dust from the premises to household members.

But Gould said that ruling and others are based on the foreseeability of the injury, something that is not considered in Arizona when determining if someone has a duty not to injure another person.

Gurien did not immediately return calls seeking comment on Friday’s ruling.

Arizona Supreme Court rules Legislature not required to follow open meeting laws

The Arizona Supreme Court from left are Justices Bill Montgomery, John Lopez, Ann Scott Timmer (vice chief justice), Robert Brutinel (chief justice), Clint Bolick, James Beene, and Kathryn King.

State lawmakers are free to ignore laws they approved requiring public access to their meetings and there’s nothing that courts can do about it, the Arizona Supreme Court ruled Friday.

In a unanimous ruling, the justices acknowledged that legislators applied the state’s Open Meeting Law to themselves. This law requires that all legislative committees conduct meetings publicly so “all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings.”

In fact, Justice Ann Scott Timmer said lawmakers also approved rules that are substantially similar.

But Timmer said the Arizona Constitution also gives the House and Senate the power to determine their own procedural rules. And that, she said, “necessarily means each house can interpret, amend, enforce or disregard those rules with almost limitless impunity.”

And that, Timmer said, also means they are free to ignore the statute that they applied to themselves without fear that some individual or organization will sue to force them to follow it.

“It generally falls to them (the legislative houses) – not the courts – to enforce any violations by members,” she wrote. “It makes no difference that the legislative rules substantially mirrored the Open Meeting Law.”

And there’s something else in the ruling,

Ann Scott Timmer

“Our constitution neither expressly nor impliedly requires that legislative proceedings be open to the public,” Timmer wrote. And that conclusion could give lawmakers, should they desire, the go-ahead to close off other proceedings that, until now, have been open to the public.

The 2020 lawsuit by a coalition of rights groups came after the organizations charged that there were 26 Republican lawmakers – a quorum of at least five legislative committees – attending the annual conference of the American Legislative Exchange Council. That group, funded largely by corporate interests, serves as a clearinghouse of sorts for proposed changes in state laws across the nation, changes that can wind up being formally adopted by the legislature here.

It is that process, the lawsuit states, which shuts the public out of the process at the earliest stages of amendments to state law. More to the point, the fact that there is a quorum of a committee present means that the first action on the legislation effectively occurs behind closed doors.

A trial judge tossed out the case saying what lawmakers do is not for the courts to decide.

But in a split ruling earlier this year, the state Court of Appeals rejected the idea that the constitutional provisions for separation of powers among the three branches of government precludes courts from deciding whether what the legislature is doing is legal.

“By enacting a statute that expressly imposes open-meeting requirements on itself, the legislature implicitly and necessarily acceded to judicial enforcement of those requirements,” wrote Judge Jennifer Campbell for the majority of the appellate court.

The high court, however, said that ruling was incorrect.

Timmer acknowledged that courts can review legislative rules or procedures to decide whether they ignore constitutional rights or violate fundamental rights. Judicial intervention also is appropriate, she said, when there is no “reasonable relation” between the procedures established by the rule and the result that rule is supposed to attain.

“Absent such challenges, however, the judiciary cannot compel the legislature to follow its own procedural rules, even if the procedural rules are codified in statute,” she said.

“Although the legislature should follow its own procedural rules, we cannot adjudicate any violations absent the previously described challenges.”

Timmer also said there’s nothing in the constitution requiring the House or Senate to adopt any particular procedure or adhere to certain standards. And that, she said, means there is no guidepost for the courts to use to determine whether the legislature is acting within its authority.

The bottom line, said Timmer, is those with complaints about being denied access to legislative meetings can’t count on courts to intercede.

In refusing to tell lawmakers what they can and cannot do, the justices sidestepped the specific complaints in the lawsuit that there is a history of what happens at ALEC meetings ending up being incorporated, verbatim, into legislation introduced and approved at the Arizona Capitol.

For example, Sandra Castro, an activist with the Puente Human Rights Movement, one of the groups involved in the lawsuit, said that SB 1070, the historic 2010 Arizona law aimed at illegal immigration, came directly from a draft crafted at an ALEC meeting.

Parts of that law have since been struck down by federal courts. But there are provisions still intact, including a requirement for police, when reasonable, to check the immigration status of those they have stopped for any other reason.

An ALEC spokesman later told Capitol Media Services that isn’t correct, saying SB 1070 was already adopted in Arizona before it became part of the ALEC agenda as a model for other states. Anyway, he said, ALEC no longer is involved in immigration issues.

And Jamil Naser of the Arizona Palestine Solidarity Alliance complained about ALEC’s role in crafting what became a 2016 state law which sought to deny public contracts to firms that refused to avow they would not boycott Israel or companies that do business there. That law was later struck down by a federal judge, though legislators subsequently adopted a slightly different version that has yet to be challenged.

Other complaints centered around what they said is ALEC-inspired legislation to increase criminal penalties and build more private prisons.

There was no immediate response from the attorneys who filed the lawsuit.


Arizona Supreme Court to rule on discrimination case Monday

Breanna Koski, left, and Joanna Duka of Brush & Nib Studio are challenging a Phoenix ordinance prohibiting discrimination on the basis of sexual orientation. They do not want to prepare custom wedding invitations and other products for same-sex nuptials. (Photo courtesy Alliance Defending Freedom)
Breanna Koski, left, and Joanna Duka of Brush & Nib Studio are challenging a Phoenix ordinance prohibiting discrimination on the basis of sexual orientation. They do not want to prepare custom wedding invitations and other products for same-sex nuptials. (Photo courtesy Alliance Defending Freedom)

The Arizona Supreme Court will decide Monday how much leeway − if any − business owners have to refuse to serve certain customers based on religious beliefs.

Officially the case is whether the city of Phoenix can enforce its ordinance which makes it illegal to discriminate in providing goods or services at places of public accommodation based on race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability. It also forbids advertisements or other notices which say that business from certain protection groups “would be unwelcome, objectionable, unacceptable, undesirable or not solicited.”

Challenging it are Joanna Duka and Breanna Koski who own Brush & Nib Studio, who prepare both custom and pre-printed wedding invitations, place cards and other materials. The pair, who say they are “devout Christians,” want the justices to declare that they need not prepare those materials for same-sex couples who want to marry.

But the decision could have broader implications, setting the rules for when a business owner’s “sincerely held religious beliefs” provide immunity from similar ordinances that already exist in Tucson, Tempe and Flagstaff. And it would set the legal bar for future efforts to provide legal protections for the LGBTQ community.

Monday’s ruling is particularly important as the U.S. Supreme Court has yet to rule on the question.

Last year the nation’s high court was asked to decide whether a Colorado baker could refuse to create a wedding cake for a gay couple.

The court sided with the baker − but sidestepped the religion question. Instead, the majority said the baker had not gotten a fair hearing before the Colorado Civil Rights Commission.

So important is the outcome of the Arizona case that dozens of outside organizations have filed their own legal briefs on the matter.

The American Civil Liberties Union and Lambda Legal are urging the justices to allow the ordinance to be enforced. They say businesses can’t ignore anti-discrimination laws based on sexual orientation any more than they could refuse to serve blacks.

On the other side, the Jewish Coalition for Religious Liberty and the Cato Institute argue that people can’t be forced to act in ways and write out messages that violate their beliefs.

And even some politicians have weighed in, including Republican Attorney General Mark Brnovich who told the justices that the Phoenix ordinance “forces petitioners to create art that expresses the message that particular unions are marriages, despite their sincerely held religious beliefs that such union are not marriages and are antithetical to God’s design for marriage.”

The Arizona Court of Appeals, in siding with the city last year, brushed aside claims by the two women that the ordinance violates their constitutional and religious rights. The court said it regulates conduct, not their beliefs.

“If appellants, as an economic entity, want to operate their for-profit business as a public accommodation, they cannot discriminate against potential patrons based on sexual orientation,” wrote Judge Lawrence Winthrop for the unanimous court.

He said nothing in the Phoenix ordinance bars the women from expressing their personal beliefs that their religion recognizes only the marriage of opposite-sex couples. And he said they are free to refuse to create wedding-related merchandise for same-sex couples − as long as they do not provide the same service for opposite-sex couples.

“What appellants cannot do is use their religion as a shield to discriminate against potential customers,” Winthrop wrote.

In asking the justices to overturn the appellate court, the Alliance Defending Freedom, the Christian law firm representing the women, said the ordinance effectively forces them to express a viewpoint with which they disagree. They said that requiring them to design a wedding invitation for a same-sex couple would be the equivalent of requiring an artist to accept a commission to paint swastikas.

But Winthrop suggested that what the women were producing hardly qualified as forcing them to express a sentiment with which they disagreed. He said the items “would likely be indistinguishable to the public,” whether the invitations were for a heterosexual or homosexual couple.

“Take for instance an invitation for the marriage of Pat and Pat,” Winthrop wrote. “He said that could have been created for Patrick and Patrick, or Patrick and Patricia.

“The invitation would not differ in creative expression,” the judge wrote. And he rejected the idea that selling that invitation to a same-sex couple would be a forced endorsement of the marriage.

“It is unlikely that a general observer would attribute a company’s product or offer or services, in compliance with the law, as indicative of the company’s speech or personal beliefs,” Winthrop wrote.

Arizona Supreme Court: Bad friends, bad neighborhood don’t make for good search


Simply being around suspicious activity is not grounds for police to search a person, the Arizona Supreme Court ruled Tuesday.

The justices overturned a Phoenix man’s drug conviction on the grounds Phoenix police officers gave officers no reason to suspect he was a threat.

The court did acknowledge Anthony Primous was in a “dangerous” neighborhood, which was cited as a justification to frisk him. But Primous himself gave no indication that he was “involved in a crime or posed an imminent threat to the officers.”

Kathy Brody, ACLU of Arizona
Kathy Brody

“You have to look at the person, not just the surrounding circumstances,” said Kathy Brody, legal director for the American Civil Liberties Union of Arizona, which filed an amicus brief in the case.

She said the court’s ruling “clearly rejects the idea of guilty by association.”

“If you allow police to search based on the fact that people are in a bad neighborhood, that is just going to result in over-policing,” Brody said. “Basically, it’s an endless cycle where you’re saying, ‘Oh, these people are in this bad neighborhood, so we should search them.’ And therefore, the idea that it’s a bad neighborhood because you might find drugs on them just perpetuates itself.”

In Primous’ case, Brody had said the state Supreme Court should “categorically exclude the dangerousness of the surroundings from an officer’s calculus” unless under specific circumstances. Brody’s argument, according to the court’s ruling, was “on the ground that such factors are a proxy for race.”

The court declined to go that far, but Brody said Tuesday’s ruling leaves neighborhood characteristics open for future discussion.

If a pattern of policing based on location exists, she said, that’s a problem the ACLU will continue to look into.

“Neighborhood profiling gets awfully close to racial profiling,” she said. “Neighborhood profiling is a little bit different, but we believe allowing the police to justify searches or other policing activity just because someone is in a bad neighborhood – that is unconstitutional. And the court did agree with us on that.”

In February 2012, Phoenix police officers searching for a suspect in a high-crime neighborhood came upon four men, none of whom were the suspect. Among them was Primous, seated with an infant on his lap. As the officers made conversation, one of the men took off running and left the other men behind.

Primous stayed seated with the child on his lap. The court’s ruling, written by Justice Clint Bolick, noted he at no point  appeared “nervous or to have a weapon.” The other men had not moved either, yet the officers who remained with them frisked each of the three for weapons.

None were found, but a baggie of marijuana was taken from Primous’ pocket. He was charged with misdemeanor marijuana possession, and after a failed attempt to suppress the marijuana as evidence obtained during an unlawful search, he was convicted and sentenced to one year of unsupervised probation.

The state Supreme Court’s ruling overturns that conviction, concluding the Maricopa County Superior Court and the Court of Appeals were wrong to deny Primous’ motion to throw out the evidence against him.

“He did not react in a suspicious manner to the police encounter or when one of the other men ran away,” Bolick wrote. “He was cooperative. In sum, Primous gave the police no justification to search him.”

The trial court noted five factors to suggest officers had reason to suspect “crime was afoot,” namely the man who ran and the dangerousness of the surrounding area.

But the Supreme Court justices countered that court’s reasoning. Of the factors relied upon by the trial court and the Court of Appeals, “Primous had control over none of them.”

Bolick wrote the question of whether the officers were justified in searching Primous did not depend on “anything he did or said but because someone else with whom he was conversing fled when police approached, while Primous remained seated and cooperative.”

The justices also disagreed with prosecutors’ “unpersuasive” arguments that the marijuana should still be used against Primous even if it was seized unlawfully.

Suppressing the illegally seized evidence ensures that frisks are based on legitimate factors, Bolick wrote, and “do not devolve into a de facto policy of frisking all individuals with whom police have investigative encounters in high-crime neighborhoods.”

Brody acknowledged that such rules could make policing more difficult, but “that’s the balance our Constitution strikes.”


Arizona teacher shortage continues

Arizona continues to have a shortage of teachers for the classroom.

And by some indications, the problem may be getting worse.

A new survey by the Arizona School Personnel Administrators Association found that schools were able to fill fewer than one out of every five vacancies they had for this school year. And 55% of those they did manage to fill were with people who are not actually certified educators.

This is the sixth year the organization has found a similar pattern. But Gov. Doug Ducey rejected the idea that things are the same as when they were when he took office in 2015.

“There’s a lot that’s changed since I’ve been governor,” he said.

“The focus on education has been in every state budget,” Ducey continued. And he specifically cited the average 20% pay hike given teachers.

But state schools chief Kathy Hoffman said it’s no surprise that the vacancy problem has remained relatively unchanged.

“One of the factors that has also remained consistent is that Arizona continues to rank 50th for teacher pay,” she said. Hoffman said that 20% pay hike “did not go far enough.”

“We needed a next step,” she said.

Hoffman said that could have been addressed in part by voter approval in November of Proposition 208. That 3.5% surcharge on individual incomes above $250,000 a year — $500,000 for couples — would have raised an estimated $827 in additional dollars, with half of that to hire teachers and classroom support personnel and to raise teacher salaries.

But the Arizona Supreme Court, ruling on legal challenges from some Republican lawmakers and business interests, have thrown the future of the levy into doubt.

And that financial issue, Hoffman said, is “overshadowing all of our efforts” to keep teachers in the classroom.

Ducey, in citing efforts to boost the number of people in the classroom, cited programs for “alternate pathways” to become a teacher other than going to a college of education. These are people who decide to make a mid-career change and seek to become teachers but don’t have to have a degree from a college of education.

Justin Wing, past president of the association that conducted the survey, said those alternate pathways did help. But he said they make up only a portion of that 55% of non-certified people leading classrooms.

That category includes everything from people who are simply awaiting certification, teachers brought to Arizona from other countries through special visa programs, teachers brought into the state from foreign countries, and even college and university students who are being put in front of a classroom, alone, even before they have graduated.

There also were teachers brought in under a special visa program from other countries.

Yet the vacancy problem remains.

Even after bringing in people through alternate means, schools this year said 28% of the vacancies — 6,560 in the 145 school districts and charter schools that responded — are being dealt with through a combination of long-term substitutes, contracting out for certain services like special education, and even combining classes to the point where the number of students exceeds the school’s class size limit.

And in fact, in one category, things may be worse.

Wing’s survey found 160 teachers who simply did not report to work at the start of this school year. Last year the figure was 141.

And districts reported that another 124 simply abandoned their jobs since the start of the school year, compared with just 56 at the same time a year earlier.

Ducey, for his part, said none of this is unique to Arizona.

“There could be 48 other governors standing here that have a teacher shortage as well,” he said. “That’s something that is challenging the country.”

Ducey insisted, though that “Arizona is leading the country in addressing them.”

Wing said the long-term solution remains getting more high school graduates interested in making teaching a career.

Ducey said that is happening with the Arizona Teachers Academy, a program where students who go into education get one or more year’s worth of free tuition.

Wing said the problem with that is its marketing — or lack thereof.

“If you step into the door at a college of education at any local university or college, you will find out about the grant, probably,” he said. “And you may be eligible for it.”

But at the point a student is walking in the doors of a college of education, Wing said, that person already has decided or is at least considering teaching as a career.

“What about targeting graduates of high Title I schools?” he asked, high schools with a high percentage of students coming from needy families.

Hoffman said she does believe there has been marketing of the program. But she said that also needs to be combined with other programs to get high schoolers interested in making teaching a career.


Arrest of medical marijuana patient on campus illegal, court rules

(Deposit Photos/Uros Poteko)
(Deposit Photos/Uros Poteko)

Medical marijuana patients are free to have their drug on college and university campuses without having to fear arrest, the Arizona Supreme Court ruled Wednesday.

The justices said the 2010 Arizona Medical Marijuana Act gave those who have certain medical conditions permission to obtain up to 2 1/2 ounces of marijuana every two weeks.

That initiative also sets out specific places where even those entitled to otherwise use the drug legally may not have it. That includes school buses, public schools and correctional facilities.

Two years later, responding to concerns by university officials, lawmakers added the language at issue here, expanding those prohibited zones to college campuses and making violations a felony.

But in the unanimous ruling, the justices pointed out that the Arizona Constitution forbids lawmakers from altering what voters have adopted unless the change “furthers the purpose” of the initiative. Making criminals out of medical marijuana users, they said, does not.

Justice John Pelander, writing for the court, acknowledged the concern expressed by university officials that allowing marijuana on campus would run afoul of federal laws and could mean the loss of federal funding. It was that fear that resulted in the 2012 amendment.

“But a university does not have to guarantee prosecution for violations of its program,” Pelander wrote.

He noted there are other options, citing the policy at Arizona State University which makes anyone in possession of illegal drugs subject to disciplinary or administrative sanctions. And marijuana does remain illegal in all forms under federal law.

And he said if college and university officials are so inclined they can even refer violations to federal prosecutors.

But none of that, Pelander said, allows state lawmakers to authorize the arrest and prosecution of medical marijuana users under state laws for possessing the drug on college and university campuses.

Wednesday’s ruling is most immediately a victory for Andre Maestas, an Arizona State University student. It means his conviction will be overturned.

It also paves the way for any of the state’s other more than 160,000 medical marijuana patients to have their drugs on campuses without fear of arrest and prosecution under state law.

But Thomas Dean, who represents Maestas, said the implications of the decision extend far beyond medical marijuana. He said it spells out clearly and firmly that lawmakers cannot second-guess and alter what voters have approved.

“If the Legislature was able to get away with here tampering with a voter-passed initiative, and to do so in a way that’s contrary to its stated purpose … then the camel’s nose is under the tent and they’d be able to do the same thing to all voter initiatives, past, present and future,” Dean said. And that, he said, makes the ruling important even for those who are not supporters of medical marijuana.

“This is an affirmation of their constitutional rights to pass a voter initiative,” Dean said. “And the Legislature cannot modify or repeal it.”

Maestas was arrested in 2014 on a charge of obstructing traffic after ASU police found him sitting at an intersection. A search of his wallet produced a state-issued medical marijuana card.

When police questioned him about it, Maestas admitted to having marijuana in his dorm room. That gave police what they needed for a search warrant, coming up with about 0.4 grams of the drug — less than 0.02 ounces — far below the amount of medical marijuana users are legally allowed to possess.

Maestas was originally charged with a felony under the 2012 law. But prosecutors reduced that to a misdemeanor, which meant he was not entitled to a jury trial.

Maricopa County Superior Court Judge Dean Fink found Maestas guilty, placed him on unsupervised probation, and imposed a $1,000 fine.

Maestas then appealed.

Pelander rebuffed the contention of the Attorney General’s Office that expanding the list of prohibited places “furthers the purpose” of what voters approved in 2010.

He pointed out that the Arizona Medical Marijuana Act specifically says the purpose of the law “is to protect patients with debilitating medical conditions … from arrest and prosecution and criminal and other penalties” for using medical marijuana

“Criminalizing AMMA-compliant marijuana possession or use on public college and university campuses plainly does not further the AMMA’s primary purpose,” Pelander wrote. He said the 2012 law does not “protect” medical marijuana patients from being arrested “but rather subjects them to such penalties.”

And what all that means, the justice wrote, is that 2012 change violates the constitutional ban on legislative tinkering with voter-approved measures.

Artistic freedom for all is a right that needs protection


When Joanna Duka and Breanna Koski met, they would never have imagined they would be heading to the Arizona Supreme Court because of a Phoenix law that threatens jail time and criminal fines if they decline to create artwork that violates their core religious convictions. After all, the Constitution protects expression, both artistic and religious. And it was their love of art and faith that brought them together in the first place.

The two women met at a Phoenix-area Bible study after Joanna spoke about feeling overwhelmed in starting an art studio focused on calligraphy. Breanna encouraged her and explained that she was a painter but was too afraid to start her own business. Joanna jumped at that information. She had been hoping to collaborate with a skilled painter, and she loved Breanna’s artwork. Pulled together by their shared Christian faith and artistic vision, the young women decided to start an art studio together, Brush & Nib Studio, named after each of their artistic contributions.

Together, Joanna and Breanna set to work imagining, designing, and creating custom pieces for weddings, special events, and every-day moments. Whether through prints or signs, invitations or wedding programs, they found a love for serving all customers from all walks of life and delighted in sharing what they considered beautiful with others.

Kate Anderson
Kate Anderson

As their art increasingly revolved around weddings, they found their voice in celebrating marriage as God designed it, but they also realized that, because of their Christian faith, they could only celebrate marriages between one man and one woman. It is that belief that landed them in court, to defend their right — and every person’s right — to live and work according to their beliefs.

Every person can think of beliefs they cannot in good conscience promote. For some, it might center around immigration, gun ownership, or animal rights. For others, it may be political or religious in nature. But in Phoenix, Joanna and Breanna face jail and criminal fines if they operate their studio consistent with their beliefs.

In fact, they can’t even talk about the impact of those beliefs on their art without incurring additional criminal penalties.

That’s not freedom. A government that can force one artist to create artistic expression in violation of their conscience can force anyone to do the same. Not only will a Christian artist be compelled to create art for a religious ceremony that contradicts her beliefs, but an atheist singer can be forced to perform at an Easter service, a Muslim graphic designer can be required to create promotional materials for a Friends of Israel rally, and an LGBT photographer can be made to photograph a Westboro Baptist rally. There is no end to a government empowered to impose its beliefs on individuals in any context.

In addition to the Phoenix law’s threat of six months in jail, $2,500 in fines, and three years of probation for each day the law is violated, the ordinance goes a step further. It bans Joanna and Breanna from publicly communicating what custom artwork they can and can’t create consistent with their faith.

Fortunately, the Arizona Supreme Court agreed to take their case, which will be argued on January 22. Joanna and Breanna will go there to defend everyone’s freedom to live by their convictions. Society is more diverse, more just, and more free when free expression is zealously protected. We should all hope it is in this case.

Kate Anderson is senior counsel with Alliance Defending Freedom and represents Brush & Nib Studio in its lawsuit against the city of Phoenix.

Attorney General asks court to block anti-discrimination ordinance

Brush and Nib Studio owners from left are Breanna Koski and Joanna Duka (Facebook)
Brush and Nib Studio owners from left are Breanna Koski and Joanna Duka (Facebook)

Arizona’s chief prosecutor is urging the state’s high court to block Phoenix from enforcing its anti-discrimination ordinance against two women who refuse to craft wedding materials for same-sex nuptials.

In a legal brief filed with the state Supreme Court, Attorney General Mark Brnovich argues that Arizona and a handful of other states who have signed on with him “have compelling interests in protecting their citizens’ freedoms of speech and religion secured by the United States Constitution, as well as by their individual state constitutions.”

Conversely, Brnovich says that siding with Phoenix in the legal fight amounts to “coercing artists to use their talents to create government-sponsored messages.”

“It forces petitioners to create art that expresses the message that particular unions are marriages, despite their sincerely held religious beliefs that such union are not marriages and are antithetical to God’s design for marriage,” he said.

How much weight the justices will give to Brnovich’s legal arguments remains to be seen. But the importance of the ruling is underlined by the fact that the case has drawn “friend of the court” briefs from groups as diverse as the Southern Baptist Convention and the Jewish Coalition for Religious Liberty on behalf of the artists and against Phoenix, to the Anti-Defamation League and the Hindu American Foundation urging the high court to uphold the ordinance.

But Brnovich, in his brief, said he is acting on behalf of the state — and, by extension, its residents.

A hearing is set for Jan. 22.

What the justices decide will affect more than the Phoenix ordinance. Several communities including Tucson, Tempe and Flagstaff have similar restrictions against discrimination based on sexual orientation that could be curtailed or overruled.

The ordinance makes it illegal to discriminate in providing goods or services at places of public accommodation based on race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability. It also forbids advertisements or other notices which say that business from certain protection groups “would be unwelcome, objectionable, unacceptable, undesirable or not solicited.”

No one had actually complained about Joanna Duka and Breanna Koski who own Brush & Nib Studio and who prepare both custom and pre-printed wedding invitations, place cards and other materials.

Instead, the women, who say they are “devout Christians” who believe the only legitimate marriage is between one man and one woman, filed a peremptory lawsuit asking the courts to rule they have a right to refuse to create the same kind of custom designs for same-sex couples as they routinely do for heterosexual couples.

A trial judge rebuffed their efforts, a decision upheld earlier this year by the state Court of Appeals.

Appellate Judge Lawrence Winthrop rejected their claim that the ordinance violates their constitutional and religious rights. He said it regulates conduct, not their beliefs.

“If appellants, as an economic entity, want to operate their for-profit business as a public accommodation, they cannot discriminate against potential patrons based on sexual orientation,” he wrote for the court.

Brnovich, however, said the problem here is that the business at issue is an original art creation.

He said the First Amendment protects individuals from having to say something they do not believe. Brnovich also argues that that art is a “classic example of pure speech.”

“And pure speech cannot be made a public accommodation,” he said, and subject to anti-discrimination laws.

Winthrop, in the appellate court ruling, said nothing in the Phoenix ordinance bars the women from expressing their personal beliefs that their religion recognizes only the marriage of opposite-sex couples. And he said they are free to refuse to create wedding-related merchandise for same-sex couples — as long as they do not provide the same service for opposite-sex couples.

“What appellants cannot do is use their religion as a shield to discriminate against potential customers,” the judge wrote.

Brnovich derided that logic, pointing to the fact that violations of the ordinance carry a penalty of six months in jail and a $2,500 fine.

“It effectively forces such artists to choose between practicing their religion and earning a living in their chosen trade,” the attorney general wrote, saying that runs afoul of state constitutional provisions for “perfect toleration” of religious freedom. He said it compels the women “to create pure speech they prefer not to create.”

“It also forces them to participate in the recognition and celebration of a wedding — a ceremony long held sacred to those who live by their religions and with transcendent importance in the annals of human history,” Brnovich said.

But Winthrop said there is little chance that anyone will see the pair’s creations as an endorsement of same-sex marriages.

He said that the kinds of items the women would produce for gay couples would be “indistinguishable” from those produced for opposite-sex couples. Winthrop said that means an invitation for the marriage of “Pat and Pat” could equally be for Patrick and Patrick or Patrick and Patricia.

In his legal brief, Brnovich takes no position on the broader question of whether cities can bar discrimination based on sexual orientation, focusing solely on whether such ordinances can cover artistic expression.

Attorney General’s Tucson office disqualified from murder case


The Arizona Supreme Court has disqualified all the lawyers working at the Tucson office of the state attorney general from handling a new trial in a 21-year-old murder case.

In a unanimous decision Monday, the justices said there is reason to believe that Darren Irving Goldin could not get a fair trial because one of the lawyers at that office there had improper conversations with a court-appointed confidential intermediary. That lawyer, Richard Wintory, eventually left the attorney general’s office and was later suspended from the practice of law for 90 days.

But attorneys for Goldin argued — and the high court agreed — that there was no way to tell what Wintory had shared with other lawyers at the office. And if nothing else, they said it cast a shadow on the ability of Goldin to get a fair trial.

None of this means Goldin is off the hook.

It simply means that the trial will have to be handled by someone other than the lawyers working for Attorney General Mark Brnovich out of his Tucson office. Anne Elsberry of the Pima County Legal Defender’s Office said that could be a different unit of the Attorney General’s Office or farmed out to a county attorney.

There was no immediate response from the Attorney General’s Office.

Goldin was indicted in 2010 on the decade-old death of Kevin David Estep, a fellow drug dealer. Prosecutors initially intended to seek the death penalty.

The court appointed Mary Fornino as confidential intermediary to see if there are any factors that would weigh against execution. And that, in turn, was complicated by the fact that Goldin’s biological mother — he was adopted as an infant — refused to speak with her.

That resulted in a conversation between Wintory and Fornino, one that was not supposed to occur and one he did not initially disclose. He then was removed from the case.

At that point the Attorney General’s office offered Goldin a plea deal which he took. But Elsbery said that was vacated when he didn’t get the terms he was promised.

That set the stage for a new trial — and Goldin’s motion to disqualify anyone who worked at the same office as Wintory.

Pima County Superior Court Judge James Marner agreed to the request, saying there was no way to know what conversations Wintory had with other prosecutors and whether that tainted the case.

“I’m sure there’s a more eloquent way of putting this, but it just looks bad,” Marner said.

The Court of Appeals disagreed, saying that Marner did not consider the proper factors before making a decision.

But Justice Clint Bolick, writing for the unanimous high court, said the trial judge had legitimate reasons for his decision.

“Justice and the law must rest upon the complete confidence of the thinking public,” he wrote, quoting from earlier court rulings. “And to do so they must avoid even the appearance of impropriety.”

And this case, Bolick said, involved more than just some bad judgment. Instead, it was actual misconduct.

“The misconduct was so significant that it resulted in severe discipline,” he wrote. “The appearance of impropriety was grounded not in a mere perception of wrongdoing but an actual finding of misconduct with no ability to determine the scope of its impact.”

Bolick also noted that the misconduct occurred over a period of time.

“We do know which other staff members in the Tucson office, if any, were privy to the improperly obtained information,” he said. Therefore, he said, “it was within the trial court’s discretion to disqualify the entire office.”


AZ Supreme Court changes criminal defense of duress

Sophia Richter
Sophia Richter

People who say they were forced by fear of death or injury to break the law need not prove they were in imminent danger at the time of the offense to escape being convicted, the Arizona Supreme Court ruled Friday.

In a decision with significant implications, the majority said Sophia Richter should have been allowed to claim she was acting “under duress” when she kept her three daughters locked up for months in squalid conditions.

The Tucson woman never denied that the girls, ages 12, 13 and 17, were taken out of school and kept locked in a room where they were fed rancid food, given moldy water and were allowed to go to the bathroom only by signaling Sophia and her husband, Fernando, the girls’ stepfather, by means of closed-circuit cameras. But Sophia argued that she was too scared of her husband, the girl’s stepfather, to help them.

Pima County Superior Court Judge Paul Tang rejected her request to present evidence that she acted under duress.

That would have included testimony from a doctor that she suffers from post-traumatic stress disorder based on “the many months, if not years of abuse suffered … at the hands of Fernando.” Sophia also sought to present photographs of “numerous scars” she said were inflicted by him.

Tang, however, said she essentially was claiming “battered woman syndrome,” where someone gets to escape punishment by claiming she was so abused that she, in essence, lacked the mental capacity to know she was committing a crime. That defense is not allowed in Arizona.

After being found guilty of kidnapping and child abuse she was sentenced to 20 years in prison.

But Chief Justice Scott Bales, writing for himself and three of his colleagues, said Sophia’s claims were more specific than that.

For example, he said she believed that if she resisted she would either be seriously harmed or killed, or that her children would as well. And she submitted evidence of wounds and blood on her body that police documented on the day of her arrest.

Bales said that evidence, if accepted by a jury, could show she was constantly in fear, providing a basis for her to argue she had no choice but to go along with what her husband demanded.

But Justice John Lopez, writing for himself and the other two justices, said Arizona law requires someone to show that they acted in response to a “threat or use of immediate physical force.” And he said Sophia presented no evidence that Fernando threatened or used physical harm “which compelled her to continuously abuse her children for the entire three-month period alleged in the indictment, if at all.”

Lopez also said the majority ruling opens the door for more people to claim they acted under duress — and therefore not guilty — even though they were not under immediate threat of harm at the time of the crime.

Friday’s ruling does not mean Sophia is off the hook. Instead, it sends the case back to court for a new trial where she can present the evidence that was not allowed the first time.

Fernando, who faced the same charges plus aggravated assault, was sentenced to 58 years in prison. He lost his appeal last year.

Deputy Pima County Attorney Amelia Cramer said she was still studying the ruling. But she told Capitol Media Services last year that if the conviction were overturned her office is prepared to put Sophia back on trial.
The case came to light in 2013 when the two younger girls escaped out of the window of their bedroom and fled to a neighbor’s house, shouting that their stepfather had broken down the bedroom door and threatened them with a knife. The neighbors, who did not know the girls lived in the neighborhood, let them in and called 911.

Police found the parents inside the house and the 17-year-old locked in a separate bedroom. They also confirmed that the younger sister’s bedroom door was kicked in.

During their search they found video cameras and covered air-conditioning vents in the girls’ rooms, an internal alarm system, a knife near the master bedroom, and a five-gallon bucket containing pasta mixed with meat and food scraps in the refrigerator.

The girls told police they had been removed from schools years earlier and the younger sisters had not seen their older sibling in more than a year despite living in the same house. The oldest sister said water in plastic jugs was moldy and the food they were given to eat twice daily was rancid.

“We would have to lick our plates if we wanted them clean,” she continued. “If not, my mom would just throw more food on it if I didn’t lick it.”

Bales, writing for the majority, said Sophia has a story to tell that could convince a jury she acted under duress.

“She sought to argue that her intentional illegal conduct was justified because she was compelled  to abuse her children by the threat or use of immediate physical force against her or her children,” he wrote. More to the point, he said that threat need not be something that occurred at precisely the same time Sophia was committing the crime.

“An ongoing threat of harm can be sufficiently immediate and present for purposes of a duress defense even when the threat precedes the illegal conduct by several days,” he said.

Bales acknowledged that the threat needs to be more than “vague or undetailed.” But the justice said there was enough evidence to suggest she was under constant fear.

“She stated that even when she went grocery shopping, she was accompanied by Fernando’s mother,” he noted, and Sophia was required to keep her cell phone on at all times “in order that he could tell her what was going on.”

Then there were the wounds and blood police found. And Bales said Sophia would have presented evidence that when she stood up to Fernando on a family trip he threw her out of the hotel room by her hair.

Bales said, though, that for Sophia to succeed in her defense at a new trial she has to convince a jury that a reasonable person, subjected to the same threats and patterns of abuse, would have believed he or she was compelled to engage in the same illegal conduct.

AZ Supreme Court refuses case on lifting eviction ban

Eviction Notice Letter on Front  Door

The Arizona Supreme Court won’t overturn the order by Gov. Doug Ducey blocking residential evictions.

In a brief order October 7, the justices spurned a request by the Arizona Multihousing Association to review the governor’s actions and determine if he is within his legal rights in saying that landlords could not oust tenants who have not been paying their rent because of COVID-19.

The ruling does not resolve the legal claims by the landlord group about the scope of the governor’s emergency powers.

That would take a full-blown trial, something that could take weeks, if not months. In fact, that’s exactly what the order signed by Chief Justice Robert Brutinel suggested.

But it does mean that Ducey’s order, originally issued in March, will remain undisturbed through at least the end of October when it is scheduled to expire – assuming the governor does not extend it as he did in July.

Courtney Gilstrap LeVinus, president of the landlord group, pronounced herself “shocked and disappointed” that the high court won’t hear the case. She said the ruling will have consequences not only for those who own rental properties but for the whole economy.

Courtney Gilstrap LeVinus
Courtney Gilstrap LeVinus

“We can fully expect to see a rental home foreclosure avalanche in the months to come, or certainly in the beginning of 2021, LeVinus said.

The only relief, she said, could come from $100 million that is supposed to be used for eviction relief. But LeVinus said only about $18 million has actually been distributed since the pandemic began.

Attorney Kory Langhofer, who represents the landlords, said the issue goes beyond the immediate effect on his clients.

“It reflects the failure of governmental institutions,” he said.

“Our Constitution requires the legislative and judicial branches to check executive overreach,” Langhofer said. “At the moment, that’s not happening.”

But Langhofer was able to convince only Justice Clint Bolick who was the lone person on the bench wanting the Supreme Court to review Ducey’s actions.

There was no immediate comment from the governor on either the order or whether he intends to let it expire as scheduled at the end of the month.

But even if the justices had taken up the case and overruled the governor it would have had no immediate effect. Last month, the Centers for Disease Control and Prevention issued its own anti-eviction order which runs through the end of the year.

In seeking Supreme Court action, the landlords claim the governor lacks the constitutional authority to tell constables around the state not to process eviction orders, even those issued legally by judges. They also contend that the gubernatorial directive is violating both the property rights of landowners as well as their right to enter into contracts.

In seeking review, the landlords acknowledged that the governor can exercise certain powers in a public health emergency. But Langhofer said that Ducey, is unilaterally barring landlords from enforcing the terms of lawful lease agreements, created “an indefinite economic welfare and redistribution program, rather than a public health measure to contain the COVID-19 contagion.”

Kory Langhofer
Kory Langhofer

Langhofer also warned the justices that if the governor’s order goes unchallenged, “then there is virtually no personal or commercial transaction or conduct that would lie outside his grasp.”

The way the landlords figure it, by the time the order expires – assuming it is not renewed – it will have been 221 days that tenants have not had to pay rent.

How much is owed is unclear.

Economist Elliott Pollack, in a study done for the Arizona Multihousing Association, figures that if just 1% of the more than 919,000 Arizona households who rent did not make payments over a seven-month period that means a loss of more than $67.7 million. Take that rent-withholding figure to 15%, he said, and the foregone revenues top $1 billion.

Pollack said there also is a ripple effect as landlords cannot pay their employees, contractors and suppliers.

But the issue before the court dealt only with the legal questions.

Langhofer told the justices that the statutory provisions the governor is using for all of his executive orders allow him to exercise police powers, specifically to “alleviate actual and threatened damage due to the emergency,” and to facilitate the supply of equipment and services “to provide for the health and safety of the citizens of the affected area.”

He acknowledged the law does allow the governor to “commandeer and utilize any property.” And that, Langhofer said, could be interpreted to include a moratorium on evictions as a means to ensure that people have housing.

But he said that exists only in a “state of war emergency” – and only if the governor makes provisions for compensating the owners of the property.

Laghofer said that Ducey, in issuing his executive order, acknowledged that it had little to do with protecting public health but was “primarily an economic relief measure.” He also pointed out that tenants seeking relief need not show they are infected with COVID-19 or even that they are in a high-risk category, but only that they provide documentation of “ongoing financial hardship.”

Ducey, however, said there is a direct link between his order and public health.

“The fight against evictions is key in slowing the spread of the virus,” wrote Brett Johnson, the private attorney retained by the governor to defend him in all the litigation over the COVID-19 restrictions he has imposed. “The federal Centers for Disease Control and Prevention has warned that homeless shelters are often crowded, making social distancing difficult, and that homeless can exacerbate and amplify the spread of COVID-19.”

The advice from the justices for landlords to take their case to a trial court is interesting given that there was, in fact, a hearing earlier this year in a separate challenge to the governor’s order brought by Gregory Real Estate and Management. It owns a rental home in Surprise.

In that case, Maricopa County Superior Court Judge Christopher Coury upheld the governor’s actions. He said the evidence “demonstrates reality that Arizona leaders and the general population perceived COVID-19 to be an emergent problem and a virus to which swift and urgent attention was required.”

The lawyers in that case are seeking review by the state Court of Appeals. But they also asked the Supreme Court to bypass that step and consider the case now, something the justices refused to do.




AZ Supreme Court rules medical confidentiality suspended in cases of Medicaid fraud

Arizona Supreme Court (Dillon Rosenblatt/Arizona Capitol Times)
Arizona Supreme Court (Dillon Rosenblatt/Arizona Capitol Times)

Fraud investigations trump Arizona’s physician-patient privilege, the Arizona Supreme Court ruled Monday.

In a unanimous decision, the justices upheld the conviction and 10-year prison term of Chalice Zeitner on charges of defrauding the state’s Medicaid program, identify theft and fraud. They rejected her claims the testimony and medical records of her doctor could not be used in her trial accusing her of faking a claim of cancer in order to obtain a state-funded abortion.

John R. Lopez IV
John R. Lopez IV

Justice John Lopez, writing for the high court, acknowledged that the statute that protects patient communications with a physician apply in criminal cases. That, he said, is designed to “ensure that a patient will receive the best medical treatment by encouraging full and frank disclosure of medical history and symptoms by a patient to his doctor.

Lopez also said that same law also protects patient medical records.

But the court also said that privilege is not absolute, citing examples like requiring doctors to disclose wounds that may have resulted from illegal activity and evidence of contagious or infectious diseases.

In this case, he said, physicians providing services under the Arizona Health Care Cost Containment System, the state’s Medicaid program, are required to report “any cases of suspected fraud.” And the agency is required to investigate.

The charges against Zeitner stem from her 2010 claim that she needed a state-financed abortion because she discovered she was pregnant after recently undergoing extensive radiation and chemotherapy treatments for cancer. AHCCCS pays only for abortions in cases of the life or health of the mother.

Part of that scheme also included providing the obstetrician a letter purportedly written by a doctor from an out-of-state hospital who Zeitner claimed had treated her for cancer. That letter recommended she receive an urgent abortion to relieve third-term, life-threatening conditions to the patient.

Chalice Zeitner
Chalice Zeitner

The obstetrician, relying on that information, concluded the abortion was necessary to protect Zeitner’s health.

The plan began to unravel a year later when the obstetrician, performing a cesarean section on Zeitner for another pregnancy, found no physical evidence to support her previous claims of uterine cancer. The obstetrician reported his suspicions about her to the health plan which forwarded the matter to AHCCCS for investigation.

She eventually was indicted on 11 charges including defrauding AHCCCS, which otherwise would not have paid for the abortion. Prosecutors also charged her with identity theft and forgery for impersonating a doctor who recommended that she receive an abortion.

Over her objections, the trial judge allowed her medical records into evidence and her physicians to testify.

In Monday’s ruling, Zeitner argued that decision was contrary to law.

Lopez pointed out that the federal government, which picks up most of the cost of the AHCCCS program, has some specific requirements for disclosure of patient records. He also said there are some parallel state laws and rules that allow for release of information for conducting or assisting in an investigation, prosecution or civil or criminal proceedings.

The court acknowledged that the question of the state law protecting physician-patient privilege is a bit trickier.

While Lopez said state law spells out specific exemptions, like the one for reporting wounds, the Legislature has not enacted one specifically covering this kind of case. He said, though, that it appears that was the intent of the Legislature.

Lopez pointed out that there are other laws like the one requiring doctors to report suspected AHCCCS fraud and another which gives AHCCCS the power to “examine any person under oath” and “compel the production of any record … necessary to support an investigation.

“We cannot infer that the Legislature, in granting such broad investigatory authority, intended the privilege to stand as a bulwark against AHCCCS fraud investigations,” he wrote.

Editors note: This story has been updated from its original version to include more information.

AZ Supreme Court to hear Phoenix anti-discrimination case

Brush and Nib Studio owners from left are Breanna Koski and Joanna Duka (Facebook)
Brush and Nib Studio owners from left are Breanna Koski and Joanna Duka (Facebook)

The state’s high court has agreed to decide whether cities can force businesses to do work for those whose views, practices or lifestyles conflict with the owners’ religious beliefs.

The move Tuesday by the Arizona Supreme Court most immediately affects the validity of a Phoenix ordinance prohibiting discrimination on the basis of sexual orientation. It is being challenged by two women who do not want to prepare custom wedding invitations and other products for same-sex nuptials.

But what the justices rule ultimately will govern the extent that all communities — and the state itself — can force those who say they are open for business to all to pick and choose their customers. And it most definitely would affect similar ordinances in Tucson, Tempe and Flagstaff.

The decision to hear the case is at least an interim victory of Joanna Duka and Breanna Koski, the owners of Brush & Nib Studio, who are seeking to void the Phoenix ordinance. The state Court of Appeals earlier this year rejected their claim that making it illegal for them to turn away business violates their constitutional rights.

No date has been set for the hearing.

The women say they have no problem selling pre-made products to same-sex couples.

Instead, the issue is what they call “customer-directed projects” where invitations and other items are prepared in consultation with the people who want their designs. Attorneys from Alliance Defending Freedom, an organization of Christian lawyers, said that essentially forces them — unconstitutionally — to “speak in favor of same-sex marriages.”

That argument did not fly with the Court of Appeals.

“Although (the Phoenix ordinance) may have an incidental impact on speech, it’s main purpose is to prohibit discrimination,” wrote Judge Lawrence Winthrop for the unanimous three-judge panel. That, he said, means the law “regulates conduct, not speech.”

And Winthrop said that the women, having decided to offer their services to the public, must live within the law.

“Simply stated, if appellants, as an economic entity, want to operate their for-profit business as a public accommodation, they cannot discriminate against potential patrons based on sexual orientation,” he said.

The court also said nothing was prohibiting the women from expressing their personal beliefs that their religion recognizes only the marriage of opposite-sex couples. He also said they are free to post statements in their shop about their personal beliefs about same-sex marriages, or even to say that their creation of items for same-sex weddings is not an endorsement of what their customers are doing.

Winthrop also said if the women don’t want to create items for same-sex weddings, they are free to do that — but only if they don’t create the same items to heterosexual couples.

“What appellants cannot do is use their religion as a shield to discriminate against potential customers,” he said.

At this point there is no clear federal precedent on the issue.

Earlier this year the U.S. Supreme Court threw out a lower-court ruling which said a Colorado baker has no right to refuse to create a wedding cake for a gay couple.

That decision, however, was based on the justices saying the baker had not gotten a fair hearing before the Colorado Civil Rights Board. The court never reached the question of whether his religious beliefs trumped the rights of the gay couple in that case to force him to design a cake.

Bales ponders retiring, could open way for Ducey’s 5th justice pick


Arizona Supreme Court Chief Justice Scott Bales has not hired any clerks for the year, which coupled with the looming end as the court’s leader could spell retirement.

A Bales retirement would also give Gov. Doug Ducey his fifth appointment on the seven-member court.

In a recent interview with the Arizona Capitol Times, Bales said he hasn’t committed to retirement when his five-year term as chief justice ends June 30, but ASU law professor Paul Bender said the justice’s decision not to hire clerks suggests Bales is seriously considering retirement.

“If the choice was 50-50, he would have hired clerks,” Bender said. Not hiring any would mean he’s likely not returning, Bender said.

Bales said clerks typically are hired a year before they would start.

“I didn’t want to have people committed to begin working for me next fall and have me in effect pull the rug out from under them and say, ‘Oh I’ve changed my mind. I’m going to do something else,’” Bales said.

Bales, the only Democrat on the Supreme Court, said he has not made his decision yet to retire come June, but he has thought about what he would do if he does.

Remaining on the court after the five-year term as chief justice is rare. Of Arizona’s previous six chief justices, only two remained on the court for more than one year. Rebecca White Berch – who held the title before Bales – remained on for 15 months, and Stanley Feldman remained on for five years.

If Bales were to remain, he could still serve until 2026, the year he turns 70, and by law has to retire. The last justice to retire due to turning 70 was the Charles Jones in 2005. Jones died December 20 at age 83.

Whether Bales does retire, Ducey will get to at least appoint his fourth justice, more than any other governor in Arizona history, after Justice John Pelander retires on March 1.

Ducey already appointed Justice Clint Bolick in 2016, and then the two newest justices later that year when the governor signed the law expanding the highest court from five to seven justices. Andrew Gould and John Lopez IV were both appointed to fill the new seats.

After Ducey appoints Pelander’s successor, he would have a simple majority of the court. If Bales retires, that’s five of the seven seats. Governor Jan Brewer appointed the remaining two – future Chief Justice Robert Brutinel and future Vice Chief Justice Ann Scott Timmer.

Only twice since 1974, the year voters put Arizona’s merit system for selecting judges and justices in place, has a governor appointed a justice from a different political party than the governor’s. Ducey chose Bolick, an independent, and in 1998, Republican Gov. Jane Hull chose Democrat Ruth McGregor, who sat on the court until she retired in 2009 and was replaced by Pelander.

Applications for Pelander’s successor close on January 25, and shortly after that the Commission on Appellate Court Appointments will meet to vet the applicants and pass along its nominations to the governor.

Ducey will have 60 days to make the appointment.

Bales, who chairs the commission, said he is hoping to get applications to the governor by March 1 so there won’t be a longer gap in between justices on the court.

Bender speculated Pelander’s eventual successor could come from Pima County like he did.

Bender said it’s tradition to have at least one justice from a different county than Maricopa.

Bales said adding somebody from Pima could be a good idea since it provides perspective from a different county, but there are other qualities necessary for a justice.

“You want someone who is thoughtful, open to considering the views of others, and deliberative. Someone who is determined to uphold the law, but do so independently. Not be swayed by what may or may not be popular,” he said.

Bales has served on the Supreme Court since 2005, and before that worked for a private practice from 1985 to 1994, was an assistant U.S. attorney for the District of Arizona from 1995 to 1999, the Arizona solicitor general from 1999 to 2001 and then returned to a private practice until Democratic Gov. Janet Napolitano appointed him to the Supreme Court.

Bars can’t convince Supreme Court to hear case on reopening

Rebuffed by the Arizona Supreme Court, more than 100 bar owners are now taking their claims against Gov. Doug Ducey to a trial judge.

In a brief order, Chief Justice Robert Brutinel said the bar owners “did not provide a compelling reason as to why this matter could not be initiated in a lower court.” Anyway, Brutinel said, having the case go to a trial court will flesh out the allegations by the bar owners that the action by the governor shutting them down violated their constitutional rights and denied them legally required due process.

In some ways the ruling is not a surprise. It is highly unusual for the state’s high court to consider any issue that has not already been through the normal trial process.

But the ruling also does not end the dispute.

Attorney Ilan Wurman already has filed a new lawsuit in Maricopa County Superior Court alleging that Ducey does not have the constitutional authority to shut down bars – or any other business for that matter.

In sending the case to a lower court, that raises the possibility that the Ducey-declared emergency could be over and business back to normal by the time there is a trial and then the likely appeals. Wurman said that is why he is asking Judge James Smith to grant a preliminary injunction to allow the bars to reopen while the case proceeds.

But even if that doesn’t happen, Wurman told Capitol Media Services that the case still needs to proceed. He said Arizona courts need to spell out clearly what powers not only this governor but future governors have over businesses the next time there’s an emergency.

“What happens when schools are back in session in September and UofA and ASU have been in session for a month and the (COVID infection) numbers go back up?” he asked.

“Who are the first people going to be the scapegoats?” Wurman continued. “The bars.”

And the new lawsuit has something not in the original version.

He is asking Smith to declare that Ducey, in shuttering the establishments, effectively took their property. And that, Wurman said, would require the state to pay compensation to the bar owners for what they lost while they were forced to close.

“But our objective is to get open,” he said.

At least part of Wurman’s arguments rest on his claim that the governor has unfairly and illegally singled out his clients for discriminatory treatment.

He points out that there are many different kinds of establishments that can legally serve alcoholic beverages. That includes places licensed as restaurants.

By contrast, his clients are licensed as bars.

The advantage is that they do not need to meet the same requirement as restaurants that at least 40% of their sales come from food. But Wurman said that, for all intents and purposes, the activities at restaurants, which can remain open – albeit at reduced capacity – are no different from those at places licensed as bars.

In fact, he said, some bars have spacious outdoor patios, table service and no dancing while some restaurants “often have cramped spaces, loud music, dancing, and no outdoor seating.”

No date has been set for a hearing.

Benefits issue is still pending before Arizona Supreme Court

An appeal of whether the Arizona Legislature violated the state Constitution in 2016 by forbidding local governments from regulating employees’ non-wage benefits is still pending.

A list released Tuesday by the state Supreme Court on the status of multiple appeals said the justices have the appeal of the benefits case under consideration.

At issue in the case brought by Democratic lawmakers is whether the 2016 law enacted by the Republican-led Legislature conflicted with a 2006 voter-approved law on wages and benefits.

The voter-approved law raised the state minimum wage but also allowed local governments to regulate minimum wages and benefits.

A trial judge and the Court of Appeals ruled that the 2016 law changed part of the voter-approved law in violation of the state’s constitutional protection for voter-approved laws.

Bill advances restoring peremptory juror strikes

This Oct. 20, 2020 file photo, shows the Arizona Supreme Court in the Arizona State Courts building in Phoenix, Ariz. (AP Photo/Ross D. Franklin, File)

Arizona made national headlines last year when it became the first state to eliminate peremptory strikes of potential jurors. But most of the Arizona Supreme Court’s rule change, which took effect in January, would be short-lived if HB2413 becomes law. 

The bill, which passed out of the House Judiciary Committee on February 2 on party lines, would undo the change, allowing attorneys to once again disqualify potential jurors without giving a specific reason. An amendment to the bill limits this to criminal action only, not civil. 

Sponsored by Mesa Republican Rep. Jacqueline Parker, the bill has an emergency clause, meaning it would take effect right after being signed by the governor. Parker said reversing the Arizona Supreme Court’s rule change would preserve an “important component of criminal law and criminal law rights.” 

“We’re codifying the previous rule that was recently stricken by the Supreme Court this year in Arizona, codifying it into state statute, so we can preserve that right to our jury trial,” Parker, House Judiciary vice chair, said during the committee hearing. 

Under Arizona Law, the state Supreme Court can make rules regarding “pleading, practice and procedure” to supplement what’s outlined in statute but that’s not inconsistent with it. 

The Arizona Supreme Court is, predictably, opposed to the bill. Liana Garcia, the court’s director of government affairs, voiced its opposition. She said the issue of peremptory strikes was one of fairness, not partisanship.  

“If you look at the makeup of our Supreme Court, those are all Republican appointees,” Garcia said. “It’s not like this is some crazy, liberal idea.” 

“At the end of the day, they (the justices) said, ‘Look, we have an inherent problem with our juries, in that they don’t look like our communities,’” Garcia said. “‘The fairest way to do this is to say that we can’t let lawyers just get rid of people from serving on a jury based on the way that they look.’” 

The idea of eliminating peremptory strikes wasn’t a sudden one either, Garcia said/ She cited a work group that studied the issue for nearly a year, several petitions and a six-month comment period on the rule that generated hundreds of comments. She said “hundreds of hours” of work went into the decision. 

But Kristin Larish, a trial attorney at Maricopa County Attorney’s Office, said that the rule change felt abrupt. She said working groups, both state and defense attorneys, were discussing how to improve the Batson framework, but that the move to eliminate peremptory strikes altogether was “a complete surprise.” 

The recommendation to eliminate strikes came from two state Court of Appeals judges, Peter Swann and Paul McMurdie, who said the peremptory strike was one of the “most obvious sources of racial injustice in the courts.” 

Garcia told the committee that the Arizona Constitution gives plenary authority to the state Supreme Court to set rules for how trials are run. She said attorneys have unlimited strikes to eliminate bias from juries if they can provide race neutral reasons for doing so. 

When the change was announced, Chief Justice Robert Brutinel said in a prepared statement that getting rid of peremptory strikes “will reduce the opportunity for misuse of the jury selection process and will improve jury participation and fairness.” 

However, Parker said the change seemed like a “one-off, unfair thing” that would limit attorneys in criminal cases from being able to fully advocate for their clients by striking jurors for perceived biases. 

Parker said county attorneys were largely opposed to the change but alleged that some backed off supporting the bill after they were “threatened by some judges.” 

“Both sides of the spectrum, public defenders as well as the prosecutors, were both kind of shocked by this really sudden, massive change and were opposed,” Parker said.

“Both sides of the spectrum, public defenders as well as the prosecutors, were both kind of shocked by this really sudden, massive change and were opposed.” 

Rep. Jacqueline Parker, R-Mesa 

Mohave County Attorney Matt Smith spoke in favor of the bill. Smith argued the change would result in more hung juries and make it more difficult to remove biased or unfair potential jurors. He said the studies pointing to possible racial bias hadn’t been conducted in Arizona and not in his county. 

“I believe that the Supreme Court has done it on the basis that they believe that use of peremptories has been done racially biased; I think that their data is inaccurate,” Smith said. 

Smith also pointed to the U.S. Supreme Court decision in Batson v Kentucky in 1986, which said that striking a juror solely due to race is unconstitutional. If a strike is contested, the other party must give a neutral explanation for the dismissal. 

“The courts themselves are the ones that referee the Batson challenges,” Smith said. “So, it’s almost like they’re not showing confidence in themself.” 

During her testimony, Garcia told the committee that only five cases in Arizona appellate courts have been reversed based on a Batson challenge. 

“That gives you an indication that it’s not necessarily working,” she said.  

Minority Whip Rep. Domingo DeGrazia, D-Tucson, questioned whether the Legislature had more or better information to make a decision about peremptory strikes than the state Supreme Court did. 

“I’m incredibly concerned that we would be supplanting our limited time as lawmakers for the Arizona Supreme Court that has extensive amounts of data and deliberation behind their decision,” DeGrazia said. 

DeGrazia, who is a trial attorney, ultimately voted no. 

Rep. Neal Carter, R-San Tan Valley, said he was only voting yes because of the amendment to leave out civil trials and because of the promise to decrease the number of allowed peremptory strikes via a floor amendment. 

“I’ve done jury trials, and peremptory strikes amount to nothing more than lawyers shopping for jurors,” Carter said. “Why we’re carrying water for trial attorneys to craft the perfect jury for their trial that will render the verdict that they want, I don’t know.” 

Bill Montgomery is perfect candidate for state Supreme Court


I write to take exception to the op-ed about the nomination of Bill Montgomery to our state Supreme Court, written by Mark Harrison and published on Aug. 16. I do not know Harrison, but I have known Montgomery in various capacities for many years. Having written a graduate thesis on U.S. Supreme Court nominees and nominations, I’d also like to think I know something about judicial qualifications and history.

First, Harrison writes a great deal about the need for diversity on our Supreme Court – in a short op-ed, Harrison uses the word three times.  Apparently, however, diversity only means the same experience most others have had with political viewpoints only Harrison shares – definitions of diversity new and unique to any dictionary.  Indeed, it has been a longtime practice of many presidents to think diversity actually also

Seth Leibsohn
Seth Leibsohn

means diversity of experience and not exclusively appointing judges who see things through the lens or qualification of having been a judge on a lower court. This would be true of those who’ve made our judicial history as especially magnificent as it is, including great jurists from John Marshall to Louis Brandeis to Robert Jackson (whom Arizona’s own William Rehnquist clerked for). They, and many others, had not previously sat as judges prior to their service on the U.S. Supreme Court. Looking at the law, at various kinds of cases and controversies, simply does not require, and never did, prior judicial experience.  After all, the vast majority of our nation’s law professors, those who teach the law, have rarely if ever sat as any kind of judge. Diversity should include diversity of experience and views of the law from various perches, not just one. Most presidents and historians (never mind law schools) have understood that.

Second, Harrison completely bypasses the last decade of good and noble work Montgomery has engaged in as a public servant.  The fact that people have the luxury to forget the shape of county government when Montgomery first took office at the end of 2010 is a testament to how far he has brought the County Attorney’s Office and the dramatic shift in how county leaders now work together instead of sue each other. Additionally, the failure of the media to report on all the support, from past state bar presidents, criminal defense attorneys, formerly incarcerated offenders, and community leaders from various points on the political spectrum, permits critics to paint a false picture of Montgomery’s qualifications and accomplishments.

Finally, the focus on the new Commission on Appellate Court Appointments as the reason the governor can now appoint Montgomery should be seen as a correction, not a criticism.  As one of the people listed as a reference for Montgomery, and the friend of several others, I can tell you that the biggest difference between the current composition of the Appellate Court Commission and the previous iteration was just how serious they took their work. During the previous vacancy, I was never contacted nor were many others. Had I been and had those who sent in letters of support been contacted, the various criticisms and concerns raised about Montgomery’s candidacy could have been readily addressed. This time, Commission members charged with doing their due diligence actually did their job. I was asked about a number of concerns that my personal experience with Montgomery gave me the opportunity to directly address. That should have happened the first time.

Fortunately, a much more thorough and fair review occurred during this current vacancy process and now Montgomery is where he should be, before the governor for consideration to serve us as an associate justice. Montgomery is a West Point Graduate, decorated Gulf War Veteran, magna cum laude graduate in the top 10% of his class from the Sandra Day O’Connor School of Law, and a distinguished public servant who spends almost all his non-family free time assisting charitable endeavors. His service, his experience, his accomplishments, along with his commitment to transparency and access to the media and public, make him a perfect candidate for our State’s highest court.

Seth Leibsohn is a radio host on KKNT-AM, a senior fellow at The Claremont Institute and chairman of notMYkid.

Bill Montgomery still not qualified for Arizona Supreme Court


Gov. Doug Ducey now faces a moment of truth that will have a major impact on his political legacy. A moment that will tell us whether he believes in the appointment of judges based on merit as required by the Arizona Constitution. A moment that tells us whether he believes in a Supreme Court that is diverse and nonpartisan.

It was reported in the media that Ducey supported expansion of the Supreme Court from five to seven members so he could add appointees who would add diversity to the court and presumably share his views. The governor appointed two well-qualified men to fill the additional seats.

Mark Harrison
Mark Harrison

However, it was more recently reported in the media that the governor added four new members to the Commission on Appellate Appointments (two Republicans and two independents, one who was a former Republican precinct committee person) so that he could make certain that County Attorney Bill Montgomery, one of the applicants for the current vacancy on the Supreme Court, would be on the list sent to him by the commission. This, despite the fact that Montgomery was soundly rejected by the commission four months ago.

In an op-ed article last month, I joined 20 past State Bar of Arizona presidents and called the governor’s attention to the fact that the Constitution requires the Nominating Commission and the court to be diverse and nonpartisan and that the overriding consideration in appointments to all of our courts must be merit. The views of commissioners reported in the media following Montgomery’s first appearance before the commission indicate that he was regarded as one of the least qualified of those seeking an appointment to the Supreme Court. Significantly, nothing in Montgomery’s record changed between his first appearance and his appearance before the commission last week. 

Despite this history, Montgomery was nonetheless included on the list sent to the governor. The only change between Montgomery’s first and second appearance was in the political composition of the commission – all of the governor’s recent appointees voted to include Montgomery on the list sent to the governor.

Arizona has a judiciary recognized nationally for its excellence. As the result of the merit selection system, Arizona has been spared the unseemly partisan elections fueled by millions of dollars of special interest money. If the governor wants his legacy to reflect his commitment to merit selection and to an impartial, nonpartisan judiciary, he will appoint one of the several highly qualified candidates on the list sent to him –  one without Montgomery’s political baggage and lack of appellate experience.

Mark I. Harrison is an attorney with Osborn Maledon in Phoenix. 

Bisbee to AG: keep state’s nose out of bag ban

plastic shopping bags 620

The Bisbee city attorney told Attorney General Mark Brnovich Tuesday that his community’s regulations on plastic bags are none of the state’s business.

In a sometimes sharp worded letter, Britt Hanson detailed the city’s problem with blowing bags and the eyesore and expense they caused prior to adoption of a 2013 ordinance. That law prohibits retailers from providing free single-use plastic bags to customers; paper bags from recycled material can be provided with retailers required to charge a nickel.

The result, he said, has been a cleaner community and lower costs for retailers.

Hanson said there was no reason for the Legislature to approve a 2016 law preempting local governments from regulating these bags. In fact, he took a slap at those lawmakers who voted for the law to overturn the Bisbee ordinance without ever having actually been to the community.

“Although the law prohibiting Bisbee from banning plastic bags declares that it is a matter of statewide concern, it doesn’t say what that concern is,” he told Brnovich.  And without any legal basis, Hanson said that law cannot be used to force Bisbee to scrap its ordinance.

The letter sends the issue back to Brnovich who had gotten a complaint last month from Sen. Warren Petersen, R-Gilbert, accusing the city of violating the preemption law he had pushed through the Legislature.

A separate 2016 law requires Brnovich to investigate any legislator’s complaint that any city ordinance runs afoul of state laws. If he determines a city is acting illegally, he must move to withhold that community’s state aid.

There was no immediate comment from the Attorney General’s Office to Hanson’s letter.

Brnovich recently got the Arizona Supreme Court to rule that state laws prohibiting city ordinances dealing with weapons overruled Tucson’s right to order the destruction of guns which had been seized by or surrendered to police.

But Hanson, in his letter to Brnovich, said the Bisbee ordinance is different. He said the only basis cited for Petersen’s preemption was language added to the bill claiming that small businesses are sensitive to costs of local regulation and that allowing cities to each have their own laws “hinders a small business from benefiting from free and open competition.”

Hanson sniffed at that excuse.

“You would be hard pressed in the legislative proceedings of either the House or Senate to find any testimony or alleged facts on which to base such findings,” he told Brnovich. And he said no lawmaker ever even asked about the Bisbee ordinance already in existence that they were moving to quash.

“If they had, they would have found that Bisbee’s retailers have embraced it,” Hanson said. He attached a letter from Pam Rodriguez, the owner of Acacia on Main Street, who said she is saving between $500 and $600 a year on bags.

And he said that Safeway, the city’s largest retailer, provided the language for the model ordinance on which Bisbee’s regulation is based.

“Just because the Legislature decrees something is ‘statewide concern’ … does not mean it overrides the local concern,” Hanson said.

That goes to Hanson’s main argument that there is no basis for lawmakers saying they know what’s best for Bisbee and other local communities.

“If the businesses in Bisbee that the Legislature is supposedly protecting with HB 2131 have no issue with the bag ban, does the state really have an interest in prohibiting Bisbee from doing so?” he asked. “And really, who should decide how best to combat Bisbee’s blight and litter: the citizens of Bisbee and their representatives, or state legislators most of whom probably have never even visited Bisbee and have no clue as to its local concerns?”

That, however, still leaves the legal question of how far cities can go in enacting their own rules when state lawmakers say otherwise.

Hanson pointed out that Bisbee is one of 19 cities that has taken advantage of a state constitutional provision allowing it to have its own charter. Those cities have generally been empowered to write their own ordinances on matter of strictly local concern, regardless of conflicting state statutes.

For example, the Arizona Supreme Court has upheld the ability of charter cities to decide how to elect members of their councils and on what days to have those elections despite legislation to the contrary.

But in its August ruling on the Tucson gun ordinance, the justices unanimously concluded that charter provisions and the law enacted by charter cities must be consistent with both the Arizona Constitution and general state laws.

Hanson conceded the breadth of that ruling. But he told Brnovich — and essentially prepped for what could be his argument to the Supreme Court if Brnovich sues — that it makes no legal or logical sense to have a blanket rule that lawmakers can do whatever they want to cities.

“If Bisbee’s exercise of its charter powers to eliminate local litter and blight can’t survive, it’s hard to imagine what possible could,” he wrote.

“The notion of charter cities would become a joke,” Hanson continued. “The Legislature could crush any independence of charter cities, and thus override the (Arizona) Constitution, simply by declaring anything to be a matter of statewide interest, as they have attempted to do here.”


Borrelli badgers woman over ballots, ridicules Republicans

File photo of Rep. Sonny Borrelli, R-Lake Havasu City (Cronkite News Service Photo by Jessica Boehm)
File photo of Rep. Sonny Borrelli, R-Lake Havasu City (Cronkite News Service Photo by Jessica Boehm)

The Arizona Senate’s Republican whip attempted to pressure a woman who went dumpster-diving for ballots into handing documents she found over to him instead of law enforcement and implied both of them could be killed for trying to expose fraud.

During the 30-minute conversation, a recording of which was shared with the Arizona Capitol Times, Borrelli called multiple other Republican politicians “corrupt cowards,” said he was the sole senator pushing to investigate the 2020 election and repeatedly told Staci Burk, a plaintiff in an losing lawsuit to overturn election results, that she could be arrested or killed. 

“I might get arrested or whatever,” Borrelli said. “I’m going to get ridiculed in the press. I don’t give a damn. I wanna save this fricking country.” 

Over the weekend, Burk posted photos of two men, one of whom has since been identified as Vietnam veteran Earl Shafer, climbing into a set of dumpsters outside the Maricopa County elections department, removing a yellow trash bag of shredded paper and piecing together documents that appeared to be completed 2020 ballots. 

Maricopa County Recorder Stephen Richer said the county’s 2.1 million completed 2020 ballots were still locked in a vault, as required by state law, adding that the shredded papers could have been ballots cast by deceased voters. 

“I have no explanation for how a voted ballot could be there and we do not believe there were voted ballots in there,” he said. “We’re 100 percent confident that they’re not part of the 2.1 million voted ballots.”

Upon learning about the incident — which was first published in right-wing websites that did not give the county a chance to respond — the Attorney General’s Office tried contacting Burk and Shafer to obtain the shredded papers. So far, they have not handed over the documents, a spokesman said.  

Borrelli did not return multiple phone calls about the recording.

Burk, after speaking to Borrelli, created a GoFundMe account asking for $20,000 to cover her legal costs and saying senators warned her that she would be killed or arrested on false charges. So far, she has raised just $200.

Burk is also self-funding a lawsuit against Gov. Doug Ducey, Secretary of State Katie Hobbs, all five Maricopa County supervisors and former Maricopa County Recorder Adrian Fontes. Her lawsuit, dubbed the “Arizona Kraken 2.0” made claims that ballots were delivered from South Korea.

A Pinal County judge threw out her lawsuit because Burk was not a registered voter. It’s pending appeal to the Arizona Supreme Court. 

During their call, Borrelli repeatedly warned Burk that she was in danger. Arizona is the “domino” that will expose corruption across the country and overturn the election, he insisted. 

“This is so high level that they want this to go away,” he said. “They can try to silence you – you’re a private citizen. They can’t do anything to me. They can bully me all they want but they know they can’t take me out except if they whack me or I have a suicide.”

“If anything fricking happened to me, if I got hurt, if I got killed, this whole thing would go away because there’s nobody in the Senate that would push,” he added.  

During the call, Borrelli called multiple fellow Republicans, including the Maricopa County Board of Supervisors and new county recorder Stephen Richer “corrupt cowards,” said he was “really disappointed” in former lawmaker and new Maricopa County treasurer John Allen.

He also mentioned Senate Judiciary Committee chairman Warren Petersen, R-Gilbert,  and criticized Sen. Paul Boyer, R-Glendale. 

“Warren? Heh. I don’t want to go on and on about Warren. He’s the chairman of the judiciary committee, he inherited this and he reluctantly got involved.” Borrelli said. 

It was Boyer’s  “no” vote on a contempt resolution that stopped the Senate from sending its sergeant at arms to arrest the county supervisors for not turning over ballots and election equipment they contended they could not legally provide.

“He stabbed us all in the back,” he said. 

And he let his feelings known about the Maricopa County supervisors, who fought the senate subpoenas.  

“They’re the corrupt bastards that I want to go — I want them in freaking jail,” Borrelli said. “I want them in jail, you have no idea how much.”

He also repeatedly claimed that Attorney General Mark Brnovich, also a Republican, would let the election materials “evaporate” if Burk shared them. 

“Do you turn it over to the attorney general that’s been turning his back and not lifting a finger?” Borrelli asked. “By the way, they probably have an incentive to make it all go away. I don’t.”

Later in the conversation, he said he couldn’t get other senators, including Senate President Karen Fann, to commit to investigating and protecting Burk as a whistleblower.

“I don’t trust any of those people,” he said. “The reason why we are where we are is because I’ve been a pain in the ass in the Senate and wasn’t going to let this go. Trust me, there are people who would fold like a lawn chair if I let this go.”

Borrelli said he has been in touch with Sidney Powell and Kurt Olsen, two attorneys who worked on multiple lawsuits filed by Trump allies trying to overturn election results. Olsen told him about new technology that would piece together shredded documents, which Borrelli compared to Iranian rugmakers reassembling shredded CIA documents after seizing the U.S. embassy in Tehran in 1979.

At other points in the conversation, Borrelli lost his temper with Burk, who insisted that the Senate wouldn’t do anything to help her and claimed to have heard two weeks before the Senate’s failed contempt vote — and therefore more than a week before the Senate drafted its contempt resolution — that lawmakers had a secret meeting in which they decided to stage a 15-15 vote. 

“You don’t think this is part of a cover-up?” Borrelli asked her at one point. 

“Oh, I think it’s a cover-up,” she responded. “But I think the whole legislature is involved.”

Borrelli has insisted that the election was fraudulent since early November. On Nov. 10, he caused callers from across the country to flood a fellow senator’s legislative office, campaign phone number and personal cell phone with irate messages interrogating whether his race was proof of fraud — all because incumbent Republican Sen. J.D. Mesnard won his East Valley swing district when Trump lost it. 

More recently, he has made multiple appearances on conservative podcasts and radio shows complaining that Boyer “betrayed the caucus,” contributing to a rash of threats against Boyer that got so bad he briefly moved his family out of their home.

Borrelli’s comments also run in opposition to what other Senate Republicans have tried hard to argue: that their attempts to audit the 2020 election have nothing to do with changing the results.

Senate Majority Leader Rick Gray said in a floor speech he and others were never trying to overturn the election. The Peoria Republican said he was “inundated with people’s input” and it was mostly about an audit.

“You didn’t see any of us trying to change electors,” Gray said on Feb. 4.

Fontes, the former Democratic Maricopa County recorder who lost his re-election bid, said Borrelli should apologize. 

“Mr. Borrelli’s suicide jokes during this incredibly stressful pandemic are irresponsible and lack the maturity, empathy and leadership we should expect from our public officials,”  he said. 

Bowers: ‘delicious’ irony group failed to recall him

Rusty Bowers
Rusty Bowers

A recall of House Speaker Rusty Bowers won’t make the ballot because the right-wing group behind it didn’t fill out the forms correctly.   

The Patriot Party of Arizona had been trying to recall the Mesa Republican, citing his failure to convene a special session to deal with Covid or to support efforts to overturn President Biden’s narrow win in Arizona. The signature deadline was Thursday, and they filed 2,040 petition sheets with about 24,500 signatures, a little more than the 22,331 valid signatures that would have been needed to trigger the recall. 

However, none of the petition sheets had a date-stamped application for a serial number attached to them, which is required under law. An attempt to recall Phoenix City Councilman Michael Nowakowski failed to make the ballot in 2018 for the same reasons, a denial upheld by the Arizona Supreme Court. 

“No sheets were eligible for signature review by the Secretary of State’s Office,” State Elections Director Sambo “Bo” Dul wrote in a letter to the applicants Thursday. “Therefore, there are zero signatures eligible for verification by the County Recorder.” 

Since the petitions were rejected, the Secretary of State’s office didn’t review the signatures to determine if they are valid – it is normal for some signatures to be thrown out on grounds such as the signer doesn’t live in the district or isn’t a registered voter. 

Bowers said he thought the group would be able to get the signatures and that he would face a recall election. 

“These are very cruel, mean, angry, disrespectful, deceitful people,” Bowers said. “What they said to get the signatures – I had all kinds of, I would say literally, well I didn’t take 100 calls (but) there were dozens and dozens and dozens of people who said they ran into them. It was all intimidation, saying I was a pedophile, I wanted boys to have sex with boys. And when they came to my house, the III Percenters were there with them. This guy had a gun jammed in his pants, screaming out to my neighbors that I’m an effing pedophile. So, if you’re asking that I would rather avoid them, yes, I’m glad it happened.” 

Bowers said the criteria for getting a recall on the ballot were tightened by the Legislature after Sen. Russell Pearce, a Mesa Republican best-known for crafting the controversial anti-illegal immigration bill SB1070, which passed in 2010, was successfully recalled the next year. To date the Pearce recall is the only successful recall of a legislator in Arizona history. 

“After the last recall that was of note in my area, that particular group of people really wanted to tighten up the recall statutes, which was done, and this was the result, and I find an irony in that I can tell you,” Bowers said. “It’s delicious.” 

Bowers said he is still tempted to take some action against some people who “said horrible, horrible things about me and members of my family,” but added “we’ll wait till I’m ready.” 

The state’s campaign finance data, which is only current through the end of April, shows $36,609.22 in independent expenditures this year opposing Bowers. The Patriot Party said in a statement after turning in the signatures that their recall effort had received “crucial help” from Tomi Collins, executive director of the pro-Trump group America Restored.  

Collins, the statement said, in turn enlisted the aid of former Trump lawyer of “release the Kraken” fame Sidney Powell and My Pillow founder and CEO Mike Lindell, both of whom have been active in spreading conspiracy theories about the results of the 2020 election and supporting attempts to overturn it. Lindell declared support for it in a phone call that was publicly released in mid-May, and Powell promoted the recall on her Telegram channel. 

“Rep. Bowers is responsible for not protecting Arizona from Election Fraud, allowing Governor Ducey to act as a tyrant, and his desire to lessen the punishment for sexual predators,” the statement said. “The Patriot Party of Arizona is calling for Rep. Bowers to do the honorable thing, and resign, thus allowing his Legislative District to choose his replacement, and not risk allowing a Democrat to steal the seat.” 

After receiving the news that the recall won’t make the ballot, the Patriot Party tweeted “the matter has been turned over to our attorneys, no further comment will be provided at this time.” 




Brnovich argues state can have 2 different abortion laws

Brnovich, abortion, Planned Parenthood, 15 weeks, Supreme Court, Roe v. Wade
Attorney General Mark Brnovich (Randy Hoeft/Yuma Sun via AP)

Attorney General Mark Brnovich says there’s nothing legally wrong with having two different statutes on the books outlawing abortion because prosecutors can choose which one to enforce.

Or whether to enforce neither.

And hanging in the balance is the possibility that doctors who say they are following one law could still be sent to prison if a prosecutor decides to bring charges based on the other.

The claim comes as Brnovich is trying to convince the state Court of Appeals to rethink its conclusion that a trial judge has to “harmonize” a law going back to 1864 that pretty much outlaws the procedure with a new statute that allows abortions through the 15th week of pregnancy. Attorneys from Planned Parenthood Arizona are arguing that can be done by reading the new law as applying to doctors, keeping the territorial-era law only for those who are not medical professionals.

Brnovich, in a 70-page legal filing, said that argument is ridiculous on its face.

He pointed out the old law makes it a crime for a “person” to perform an abortion except to save the life of the mother. Violators face a mandatory penalty of between two and five years in state prison.

That law was effectively placed on hold by the 1973 U.S. Supreme Court ruling in Roe v. Wade which declared that women have a constitutional right to terminate a pregnancy until a fetus is viable, considered between 22 and 24 weeks.

In June, however, the justices overturned their own precedent, saying states are again free to enact their own abortion restrictions.

Brnovich said that reactivated the old law, which never was repealed. And he then got a trial judge to dissolve a state-issued injunction against its enforcement which was enacted after the original Roe decision.

All that, he argued, returns the law to what it was – including who could be punished. And that, he said, includes doctors who clearly are “persons” under state law.

“When the statute was enforced prior to the 1973 injunction, licensed physicians were not excluded from prosecution,” he told the appellate court.

It is true, Brnovich acknowledged, that lawmakers, acting before the Supreme Court overturned Roe, enacted the 15-week ban. But he told the appellate judges that does not permit them to conclude that this new law effectively exempts doctors from punishment under the old law.

“It is well-settled that the Legislature defines crimes and their elements, and courts may neither add nor subtract elements to those definitions,” the attorney general said.

More to the point, Brnovich argued that just because the same conduct is covered by two different laws – with different penalties – does not make it illegal.

“Local prosecutors have independent discretion to choose which statute to enforce,” he said. “Regardless of which statute a local prosecutor chooses to enforce, that choice does not mean the other abortion statutes conflict.”

And Brnovich said that is true here.

“If a licensed physician performs an abortion at a time during pregnancy when more than one criminal statute applies, then the decision whether to prosecute and what statute or statutes to apply belongs to the prosecutor,” he said. “Such prosecutorial discretion – even when a local prosecutor chooses the statute with a harsher penalty – does not render statutes left unenforced superfluous.”

And Brnovich said that is particularly true in cases like this, where lawmakers enacted the new law and did not repeal the old one, that the Legislature did not intend one of them to be the exclusive means to punish such conduct.

Of course, he acknowledged, that discretion by prosecutors goes beyond picking which law to use when bringing charges for performing an abortion. It also means they could decide, for whatever reason, not to bring charges at all, even if there is a violation of one or both laws.

But Brnovich said doctors cannot legally demand that they be subject only to the 15-week ban – and be exempted from prosecution under the older one.

“Unless the physician can establish that the county attorney’s choice among statutes discriminated against a particular class of defendants, there is no violation of due process in granting such prosecutorial discretion,” Brnovich said.

The judges will hear arguments at the end of the month.



Brnovich asks Supreme Court to allow him to sue regents

Mark Brnovich (Photo by Gage Skidmore/Flickr)
Mark Brnovich (Photo by Gage Skidmore/Flickr)

Attorney General Mark Brnovich is making a last-ditch effort to get the right to sue the Arizona Board of Regents over what he contends is the unconstitutional tuition at the state’s three universities.

Brnovich on Wednesday asked the Arizona Supreme Court to overturn lower court rulings which concluded he needs specific legal authority to bring such a lawsuit, something the judges say he does not have. And the only other way Brnovich can sue, the judges said, is if he gets permission from Gov. Doug Ducey, permission the governor has so far withheld.

In the new filings, Brnovich conceded the lower courts were legally required to rule against him because of a prior, precedent-setting ruling by the high court limiting the authority of the attorney general to go off and file suit on his own.

But Brnovich contends that 1960 ruling was incorrect, especially given that he, like the governor, is directly elected by voters. And now he wants to give the justices a chance to overturn that precedent – and clear the way for his lawsuit.

Even if the high court sides with him, that doesn’t mean he wins the lawsuit.

All that would do is send him back to trial court, with the burden on him to prove that the way tuition currently is set is unconstitutional. And that will get a legal fight from the regents.

The underlying fight is over contentions by Brnovich that the regents, in allowing tuition to increase by more than 300 percent since 2002, are violating a constitutional mandate that instruction be “as nearly free as possible.” He said the hikes far outstrip inflation overall and even increases at other public universities.

Board members have argued that the sharp price hikes became necessary because of cuts made in state funding.

Legislative budget reports show that a decade ago per-student aid from the general fund was $7,212; for the current year the figure is $4,027. And if inflation is factored in, current aid is worth only $3,517.

Brnovich contends that tuition has gone up more than the reduction in state aid.

But ultimately the lawsuit comes down to the question of whether the regents, in running the university system, are complying with that “nearly free” mandate.

He wants a court to rule that the only legal way to set tuition is determine the cost of education, subtract available state aid and come up with a bottom line. Instead, Brnovich has argued, the regents consider everything from how much other similar state schools charge to how much financial aid is available.

But for Brnovich to make those arguments, he first needs the Supreme Court to decide that he has a right to sue.

In Wednesday’s filings, Brnovich told the justices that they need to decide this “critical question about the rule of law and separation of powers in Arizona.”

“This court has held, consistent with statutory authority, that the attorney general may go to the courts for protection of the rights of the people,” he said.

“Such authority is necessary to protect constitutional rights that would otherwise go unenforced,” Brnovich said. And he said having that authority to sue “does not make the AG a dictator because the courts alone will in all such cases make the final decisions and not the AG.”

Standing in his way, though, is that 1960 court ruling which says the power of the attorney general to act independently is limited. It is that ruling that Brnovich now wants the justices to overturn.

He actually has some allies in that fight: All three judges of the Court of Appeals, while rejecting his right to sue, suggested they believe that 1960 ruling was incorrect. But they said that, unless and until the Supreme Court overturns that ruling, they were bound by the precedent and Brnovich cannot get his day in court.

Hanging in the balance is more than whether Brnovich gets to sue the regents. It also goes to the question of who the attorney general serves.

By law, the attorney general provides legal advice to state agencies – not including the regents and a few others – and defends the state against lawsuits.

A ruling in his favor would provide legal license for this attorney general or any successor to bring legal actions even contrary to the wishes of the governor or state lawmakers. But Brnovich said there’s nothing necessarily wrong with that.

“The AG’s dual role of legal adviser and people’s lawyer is not absurd or unconstitutional and does not improperly infringe on the governor’s powers,” Brnovich argues. “This dual role flows from having a separately elected attorney general, who answers to the people.”

And he told the justices that’s the way it is set up in a majority of other states.

The regents now have 30 days to respond, after which time the justices will decide whether to hear arguments or simply leave the Court of Appeals ruling in place.

Brnovich asks U.S. Supreme Court to overrule AZ justices in murder case

This April 23, 2018, file photo shows the Supreme Court in Washington.  (AP Photo/Jessica Gresko, File)
This April 23, 2018, file photo shows the Supreme Court in Washington. (AP Photo/Jessica Gresko, File)

Attorney General Mark Brnovich wants the U.S. Supreme Court to rule that prosecutors are entitled to multiple attempts to convict someone of first-degree murder even after a jury effectively has found the charge has no legal merit.

In briefs filed with the high court, Brnovich does not dispute that the first jury who heard first-degree murder charges against Philip J. Martin could not agree. Instead they found him guilty of second-degree murder, resulting in a 16-year prison term.

That conviction was overturned because the trial judge refused a request by Martin’s attorney to tell the jury about the right to use force in prevention of a crime. That went directly to Martin’s defense that he shot his neighbor, who was on Martin’s Golden Valley property, because he feared for his own safety.

Mark Brnovich (Photo by Gage Skidmore/Flickr)
Mark Brnovich (Photo by Gage Skidmore/Flickr)

At a new trial, prosecutors once again brought up the first-degree murder allegation, this time with jurors agreeing and Martin being sentenced to life behind bars.

But the Arizona Supreme Court in August tossed that conviction, ruling that second trial amounted to “double jeopardy,” with Martin put on trial twice for the same offense. Now Brnovich wants the U.S. Supreme Court to rule the Arizona justices were wrong.

Brnovich is telling the justices that the law makes it clear that when there is a “hung jury” that prosecutors are free to retry a case on those same charges.

But Arizona Justice Clint Bolick, who wrote the decision for the state Supreme Court, said this isn’t that kind of case.

He said jurors did, in fact, reach a verdict. It just wasn’t the one prosecutors wanted.

There is no question that Martin killed neighbor Steven Jeffrey Schwartz with a single shotgun blast as Schwartz was walking toward Martin’s home.

According to court records, Martin admitted to police at the scene, and again at trial, that he shot Schwartz because he had ignored Martin’s command to get off his property. Martin said he believed that the victim was armed and was going to harm him.

Jurors in the 2013 Mohave County trial were given a verdict form with three options from which they could select for the first-degree murder charge: guilty, not guilty, or unable to agree. The second part of the form contained two options for second-degree murder: guilty or not guilty.

Phillip Martin
Phillip Martin

More to the point, it advised the jury to complete that second section only if it found Martin not guilty of first-degree murder or was unable to agree on that charge.

After about two hours jurors said they could not agree on the first charge but concluded Martin was guilty of second-degree murder.

What upset the whole legal situation is Martin’s attorney getting that conviction overturned, paving the way for a new trial – a trial at which prosecutors once again sought and got a guilty verdict on first-degree murder.

That verdict was overturned by the state Supreme Court in August, paving the way for a third trial and only on the second-degree murder charge.

Brnovich told the U.S. Supreme Court there’s no need for a third trial and that the results of the second trial and the guilty verdict on first-degree murder should stand.

He said the Arizona justices misinterpreted the law when they voided the results of the second trial. And Brnovich specifically argued that Martin knew there was a risk that he could be retried on first-degree murder when he successfully appealed the second-degree murder conviction.

“The general rule is that the prosecution is entitled to only one complete opportunity to prove the case,” Bolick wrote.

He acknowledged that does not apply in cases when a mistrial is declared because of a “hung jury” where they cannot reach a verdict. But Bolick said that wasn’t the case here.

He pointed out that that jurors were told if they could not agree on first-degree murder, something that requires a showing of premeditation, they should consider the lesser charge. They did that, Bolick said, finding him guilty of second-degree murder which is based on someone “intentionally causing the death of another person.”

What that means, Bolick wrote, is that prosecutors had the opportunity to try to convict Martin on the first-degree murder charge “but was unable to persuade the jury to convict.” That, the justice wrote, means that they can’t try again.

Bolick also rejected claims by prosecutors that Martin’s successful decision to appeal his conviction for second-degree murder, the one that was overturned, somehow allows them at a second trial to try again for that first-degree murder charge.

If the U.S. Supreme Court disagrees with Brnovich, then that would send the case back for a third trial, the one the attorney general wants to avoid.

Jill Evans, a deputy Mohave County legal advocate, told Capitol Media Services earlier this year she believes that a new trial — one where prosecutors aren’t arguing premeditation — gives Martin a better chance of being acquitted based on his claims of self-defense and being justified in shooting his neighbor.

The justices have not set a date to decide whether to allow Brnovich to pursue his appeal.




Brnovich plans to seek change in law he says handcuffs him

In this March 22, 2018, photo, Attorney General Mark Brnovich speaks at the Arizona Technology Innovation Summit in Phoenix. Brnovich wants the Arizona Supreme Court to overturn a 1960 ruling that limits the power of the attorney general. (Photo by Gage Skidmore/Flickr)
In this March 22, 2018, photo, Attorney General Mark Brnovich speaks at the Arizona Technology Innovation Summit in Phoenix. Brnovich wants the Arizona Supreme Court to overturn a 1960 ruling that limits the power of the attorney general. (Photo by Gage Skidmore/Flickr)

Mark Brnovich wants the Arizona Supreme Court to let him be the kind of attorney general he wants to be.

A 59-year-old court ruling has stymied Brnovich’s efforts to – as he puts it – hold the Arizona Board of Regents accountable for their actions, namely the steep increases in tuition rates for students at the state’s three public universities.

But that case, in which Brnovich argues the regents have violated a constitutional provision that tuition must be kept nearly as free as possible, has diverted into a broader discussion of the powers and duties of the elected attorney general.

As Brnovich sees it, he’s an attorney by the people and for the people. Brnovich spokesman Ryan Anderson said it doesn’t matter your political stripes – be you Republican, Democrat, independent or whatever. “If you feel that the attorney general should be an independent umpire, a defender of taxpayers and enforcer of the Constitution and the law,” Anderson said, you should support the Supreme Court overturning their ruling in the case of the Arizona State Land Department v. McFate.

That ruling, made in 1960, affirmed boundaries in state law for what an attorney general can and cannot do.

Specifically, while the justices found that there are “occasions” when the attorney general can unilaterally file a lawsuit on behalf of the state of Arizona – that is, its citizens – “those instances are dependent upon specific statutory grants of power.”

Put another way, Brnovich can’t sue a state agency he believes is acting outside the scope of state law or the Arizona Constitution without the express written permission of the Legislature in law, or the permission of the governor, Anderson said.

That means state agencies or entities can potentially thumb their nose at the law and hide by the court’s ruling in McFate, Anderson said.

It’s an argument that has made Brnovich, a Republican, an odd-couple ally of Democrat Terry Goddard, a former attorney general who shares Brnovich’s vision for what an attorney general could and should be.

Goddard applauded the Arizona Court of Appeals, which on August 20 struck down Brnovich’s attempt to sue the Board of Regents over tuition issue on the grounds that the attorney general has no authority to bring the lawsuit under state law. But in doing so, the appellate court also signaled their belief that the Supreme Court should reconsider the McFate decision that bound them to throw out Brnovich’s lawsuit.

The appeals court basically wrote that “McFate has been screwing up our constitutional system in Arizona for many years,” Goddard told KJZZ on August 23. “Let’s have a clean slate and let the attorney general be what he should be, an attorney for the people.”

Brnovich’s deadline to appeal to the Arizona Supreme Court is September 19.

Not everyone is a fan of Brnovich and Goddard’s mission.

Overturning McFate would level the playing field between Ducey and Brnovich, and all governors and attorneys general to follow, according to Tom Collins, executive director of the Arizona Clean Elections Commission.

“I think it’s consistent with creating opportunities for the attorney general to ensure that his or her policy preferences are put in place, rather than the policy preferences of state agencies which, in one way or another, are responsible to the governor,” Collins said.

That’s explicitly what the Supreme Court in 1960 ruled against, he added.

“The court outright said that in McFate: It’s not a policymaking office,” Collins said. “I think it’s a difference between the attorney general as a criminal prosecutor and ‘top cop’ and the attorney general as legal adviser and attorney for the state and its agencies… Those are not the same framework. They’re not the same idea.”

In pushing for the Supreme Court to reconsider McFate, Brnovich is pushing for a situation in which the attorney general “can just disagree with the state agencies that he’s supposed to represent as their legal counsel,” Collins said.

That doesn’t sit well with Ducey, who has made no bones about his displeasure with certain lawsuits launched by Brnovich. The governor said recently that the limits placed on the attorney general by the court seem justified. 

“My experience has been that these state agencies are the client of the attorney general,” Ducey said.

When asked about the potential that state agencies that report to Ducey, could be sued by the attorney general, the governor said that it “seems to me like that ruling’s there for a reason.”

There’s also the matter of the governor’s own role in holding agencies accountable. In 1960, the justices wrote that it’s the governor’s responsibility to supervise his or her agency appointees, and that the governor “is obligated and empowered to protect the interests of the people and the State by taking care that the laws are faithfully executed.”

Goddard, in an op-ed for The Arizona Republic, isn’t convinced that’s enough to protect Arizonans.

“If the attorney general lacks the power to speak for all Arizonans in enforcing the Arizona Constitution, who will?” Goddard wrote. “What good is a constitutional right if no one goes to court to enforce it?”

Brnovich wants court to punt to Ducey on question of signature gathering


Attorney General Mark Brnovich says it’s up to Gov. Doug Ducey to make the first decision on whether to let initiative circulators gather signatures online despite a state law to the contrary.

In new filings Friday with the Arizona Supreme Court, Brnovich urged the justices to delay any action on a bid by several organizations to seek an exemption to laws that say petitions for changes in state law can only be signed in person.

Brnovich is not taking a position on the claim by attorney Roopali Desai that, given the COVID-19 outbreak and the governor’s stay-at-home order, the in-person requirement infringes on the constitutional right of people to propose their own laws. Instead, he told the justices, it’s not ripe for them do decide — at least not until the challengers seek relief from Ducey.

“The governor is uniquely situated with purposes and powers that allow him to ascertain the scope of the pandemic at this time and as projected over the near future, how it impacts different parts of the state, and the practicality of in-person signature collection,” Brnovich said.

There was no immediate response from the governor’s office.

What it all comes down to, according to Brnovich, is that the problems the groups are having gathering signatures is related not just to the pandemic but also the governor’s response in declaring a public health emergency. More to the point, the attorney general says that declaration gives Ducey sweeping powers.

“In this narrow situation, the governor is statutorily empowered ‘to exercise, within the area designated, all police power vested in the state by the constitution and laws of this state in order to effectuate the purposes of this (emergency management) chapter,’ ” the legal filing reads.

“Given this broad conferral of authority by the Legislature during a declared emergency, the requests by the plaintiff in this suit, which in part involve protection of public health,should be first directed to the governor,” Brnovich said. He said it is up to Ducey to determine the fact and then issue an order.

Only then, the attorney general said, can this order be “brought to the courts for the legal consequences to be judicially defined.”

It’s even more complex than that.

In his filing, Brnovich noted the governor’s March 23 order prohibiting the closure of “essential services.” That list, he noted, includes legal, accounting, insurance, personal hygiene and real estate services.

“Whether signature gathering (or any other activity) is permitted or prohibited, and in what counties, cities and other parts of the state it is practical to engage in in-person signature gathering given the present COVID-19 pandemic, are factual determinations that are vested by statute in the governor to protect the public health and safety during this declared emergency,” Brnovich wrote. If nothing else, he told the justices, any findings by the governor might assist them in resolving the claims by Desai on behalf of the initiative drives she represents.

Allowing online signatures for initiatives would not be a big stretch.

Arizona law already permits candidates for statewide and legislative office to use what’s known as the E-Qual system to collect their own signatures. What Desai wants is court permission to open that up for initiatives, at least for this year given the problems of in-person signature gathering due to the pandemic.

A separate lawsuit filed by attorney Jim Barton in federal court seeks a similar order.

In his own pleadings, Barton told Judge Dominic Lanza that there’s nothing unusual about the normal process of having petition circulators approach voters to ask them to sign petitions.

“This seemingly ordinary activity in ‘normal’ times could prove harmful during the COVID-19 pandemic, and would be in violation of recommendations from the government and medical experts to remain at home and avoid being in close proximity to others,” he said.

A hearing on that case is set for April 14.

Brnovich, Contreras debate on cases AG has taken

From left are Attorney General Mark Brnovich, debate host Ted Simons of KAET, and Democratic AG candidate January Contreras. Brnovich and Contreras squared off in a televised debate Oct. 10, 2018. (Capitol Media Services photo by Howard Fischer)
From left are Attorney General Mark Brnovich, debate host Ted Simons of KAET, and Democratic AG candidate January Contreras. Brnovich and Contreras squared off in a televised debate Oct. 10, 2018. (Capitol Media Services photo by Howard Fischer)

Attorney General Mark Brnovich found himself defending the decisions he made to challenge various federal laws, challenges that his Democrat foe said Wednesday worked against the interests of average Arizonans.

During a televised debate on KAET-TV, January Contreras lashed out at Brnovich for working to overturn a decision by the Obama administration to put about a million acres of federal land near the Grand Canyon off limits to mining. Federal appellate judges did not agree with him.

Brnovich has had no better luck in joining with other Republican attorneys general to overturn the Affordable Care Act and its mandate to provide coverage for pre-existing conditions.

And Brnovich also sided with Americans for Prosperity in challenging a California law that would require the organization, part of the Koch brothers network, to disclose its donors.

All that, Contreras charged, showed that Brnovich during his four years as attorney general was more interested in pursuing cases that helped special interests than those that help average Arizonans.

Brnovich said that Contreras, a former assistant attorney general under Democrat Janet Napolitano, would follow her own political agenda if she was in charge of the office.

His prime example is the challenge his office filed against the Maricopa community colleges over the decision to charge resident tuition to “dreamers.”

“I would not have litigated that case,” Contreras conceded. She said that’s because she believed that they were entitled to in-state tuition if they met other Arizona residency requirements.

Contreras pointed out that those accepted into the Deferred Action for Childhood Arrivals program were entitled by the federal government to not only remain but also to work.

But Brnovich said that ignores the role of the Attorney General’s Office.

He pointed out that Arizonans voted by a 2-1 margin in 2006 to spell out that any person who is not a U.S. citizen or legal resident, or is “without lawful immigration status,” is ineligible to be charged the same tuition as residents at state colleges and universities.

“Even if you don’t like the policy, you have to defend it,” Brnovich said.

“As prosecutors, we enforce the law,” he said. “If you don’t like the law, you run for governor, you run for the Legislature or you run for Congress.”

Ultimately the Arizona Supreme Court sided with Brnovich and concluded that DACA recipients are not entitled to resident tuition.

As to the other cases Brnovich did pursue – and lost – the incumbent defended his decisions.

Take the mining case where he supported a challenge by the National Mining Association to the 2012 decision by the Obama administration to put a 20-year moratorium on new mining claims around the Grand Canyon. The Department of Interior said that would provide the time to study the effects of new mining on the environment, particularly water quality.

“As Arizona’s attorney general, when the federal government and the Obama administration tried to unilaterally remove one million acres of land without any congressional veto, I thought it was important,” Brnovich said. “We want to make sure we have a check on the federal government.”

Contreras said she has no problem with an attorney general seeking to exercise a check on the power of the federal government. But she argued that Brnovich was choosing the wrong issues — and the wrong side.

“You look at the separation of kids and parents at the border,” she said, noting that some attorneys general – but not Brnovich – went to federal court to protect the constitutional rights of those involved.

“What is alarming to me is how often, in the case of the cases I’m talking about, it’s aligning with political donors,” she said.

That question of money and politics spilled into the decision in August by Brnovich to alter the description of Proposition 127, a mandate that utilities use more renewable energy. The Secretary of State’s Office originally wrote the description. Brnovich added language that some considered to be unfair and uneven.

Contreras charged that Brnovich was influenced by money that Pinnacle West Capital Corp., the parent company of Arizona Public Service, has given to the Republican Attorneys General Association; RAGA, in turn, helped Brnovich get elected in 2014 and is spending money on his reelection campaign.

Brnovich responded that California billionaire Tom Steyer, who is financing the Prop 127 campaign, is now funding a $3.6 million media campaign urging Arizonans to turn him out of office. He called such out-of-state influence to help Contreras win the race “improper.”

“I think it’s funny coming from you when you have Arizona in a California courtroom defending the secrecy of donors to the Koch brothers network,” Contreras responded.

In that case, Americans for Prosperity sought to overturn a California law that requires certain nonprofit corporations to submit on a confidential basis a report of their large donors to that state’s attorney general as part of enforcing its laws governing tax-exempt groups. While Arizona was not affected — and Arizona has no similar laws – Brnovich submitted an amicus brief urging the 9th Circuit Court of Appeals to rule that California had no “legitimate governmental interest” in such a mandate.

The federal appellate court concluded otherwise.

After the debate, Brnovich defended his decision to intercede on behalf of Americans for Prosperity. He said forcing release of the names of donors amounts to “trying to intimidate people who are exercising their First Amendment rights.”

Brnovich said even if he did take positions on these cases that does not reflect the vast majority of how his office has operated.

“My opponent wants to point out one or two or three cases,” he said.

“We have almost 500 lawyers in our office,” Brnovich continued. “What we do touches people’s lives every day.”

Brutinel elected as next Arizona Supreme Court chief justice

robert-brutinelThe Arizona Supreme Court’s justices have elected Justice Robert M. Brutinel as their next chief justice and Justice Ann A. Scott Timmer to serve as vice chief justice for five-year terms starting July 1.

The results of voting Monday by the seven justices will have Brutinel replacing Justice Scott Bales as chief justice and Timmer replacing Brutinel as vice chief justices.

Brutinel is a former Yavapai County Superior Court judge appointed a justice in 2010 by then-Gov. Jan Brewer.

Timmer is a former state Court of Appeals judge who Brewer appointed to the high court in 2012.

Bales is a former state solicitor general who was appointed to the Supreme Court in 2005 by then-Gov. Janet Napolitano.

Candidate field set in search for new Maricopa County Attorney

(Stock photo/ILeezhun)
(Stock photo/ILeezhun)

The next Maricopa County Attorney will come from a pool of eight applicants, all of whom say they will run in 2020 if appointed.

The deadline to apply for the appointment to replace the county’s former chief prosecutor, Bill Montgomery, who was appointed Sept. 4 to the Supreme Court, was Sept. 18 and the county website posted the eight candidates who applied.

Rachel Mitchell
Rachel Mitchell

Acting-County Attorney Rachel Mitchell, the sex crimes prosecutor who questioned Christine Blasey Ford during U.S. Supreme Court Justice Brett Kavanaugh’s Senate confirmation hearing last year, Jon Eliason and Gina Godbehere are the only candidates who currently work in the Maricopa County Attorney’s Office.

The remaining applicants are Allister Adel, the former-executive director of the Maricopa County Bar Association; Lacy Cooper, a U.S. Attorney; Chris DeRose, the former-appointed Maricopa County Clerk who lost in the 2018 Republican primary; Rodney Glassman, serial candidate who previously ran unsuccessfully for the Arizona Corporation Commission in 2018; and John Kaites, an attorney who ran for Arizona Attorney General in 1999, but lost in the primary to Tom McGovern. 

All eight applicants vowed they would seek election in 2020 if appointed. Mitchell said in her application she would run even if not appointed, and DeRose filed to run with the County Recorder’s Office on September 10. Godbehere said she already has a campaign team assembled.

The ACLU of Arizona, along with 15 advocacy organizations and lawmakers, sent a letter to the Maricopa County Board of Supervisors on Wednesday listing off their qualifications for the new County Attorney, and  also asking that they appoint someone who will not seek election. 

“Voters should be allowed to fairly decide who their next county attorney will be. Status as an incumbent will give the interim county attorney an unfair advantage in a contentious race when the voters of Maricopa County will not have had a say in their appointment,” the letter stated. 

While the ACLU does not support or oppose candidates, the group actively campaigned against Montgomery’s eventual appointment to the state Supreme Court, even playing a contributable role in his failure to advance on the governor’s interview list on his first attempt at the job. 

The candidates, as part of the process, will now be vetted by a seven-member citizen’s committee appointed by the Board of Supervisors and on October 1 will send recommendations. The Board, however, does not have to accept the recommendation and can appoint any of the eight applicants. 

Part of the vetting process involves – among other things – reviewing resumes, letters of recommendation, and questionnaires and maybe even interviewing candidates.

Glassman chose Senate President Karen Fann as a reference, Kaites chose his 1999 political opponents, McGovern and former-Gov. Janet Napolitano as two of his, Adel picked Justice Clint Bolick as one of hers, and Mitchell picked U.S. Attorney Michael Bailey as one of hers, to name a few. 

Whomever the Board appoints within the coming weeks will likely be considered the GOP favorite in the 2020 election and face off against one of the Democratic candidates who have filed to run: Julie Gunnigle, Robert McWhirter, Ryan Tait or Tamika Wooten. 

In 2016, Montgomery won in the slimmest margin for that race in years only edging out political newcomer – at the time – Diego Rodgriguez, who now represents Legislative District 27 in the Arizona House. 

Case seeking refunds for out-of-state university students dismissed

Gavel and scales

Out-of-state students who paid full tuition at state universities won’t be getting a refund.

Maricopa County Superior Court Judge Teresa Sanders on Tuesday threw out the lawsuit filed earlier this year by three students from other states. They claimed that since the universities were at the time letting “dreamers” pay in-state tuition meant they, too – and every other out-of-state student – were entitled to the same discount.

Sanders said even if that is true – a conclusion she never reached – it does not matter. Sanders said individuals who believe they were harmed by the failure of the Board of Regents to follow a federal law the right to file individual lawsuits.

But attorney Lance Entrekin who represents the students said his lawsuit is not based on seeking financial recovery under the federal law. He said it is based on the theory that the regents, having violated that federal law, have breached their contract with the out-of-state students who now are entitled to a refund.

And Entrekin said that, if nothing else, the universities were unjustly enriched by charging his clients and others the full out-of-state tuition when the federal law said they were entitled to pay in-state tuition.

He has vowed an appeal.

For the time being, the ruling, unless overturned, removes a large financial cloud from the state’s three universities. Had the judge let the suit go forward and found the tuition policy illegal, the schools could have potentially been on the hook for hundreds of millions of dollars in refunds.

At the heart of the issue is the 1996 Welfare Reform Act.

One provision spells out that people who are not in this country legally are ineligible for “any postsecondary education benefit” simply because they also happen to reside in the state.

But Congress also put in an escape clause of sorts for states: They could choose to provide discounted college but only if they made the same discounts available to all U.S. citizens.

All this became an issue because the Arizona Board of Regents voted in 2015 to provide in-state tuition to those in the Deferred Action for Childhood Arrivals program. Established years earlier by an executive order by President Obama, it allows those who came to this country illegally as children to remain without fear of deportation and the ability to work legally.

But in 2017 the state Court of Appeals, ruling in a case involving Maricopa County Community Colleges, said the policy of providing in-state tuition to DACA recipients violated both state and federal law.

The Board of Regents, despite the ruling, maintained the tuition policy for another year, until the Arizona Supreme Court upheld the appellate court ruling.

Entrekin argued that the regents were put on notice in that 2017 appellate ruling which specifically cited the 1996 federal law. But he said the universities continued to charge his clients and other out-of-state students the full tuition for the 2017-2018 school year.

That difference is significant.

When Entrekin sued, the regents had set resident undergraduate tuition for new students at the University of Arizona at $12,228, versus $35,658 for students from other states.

The difference is not quite as great at Arizona State University, $10,792 for resident undergrads compared to $27,372 for nonresidents. And Northern Arizona University set tuition at $11,059 for residents and $24,841 for others.

Entrekin sought a refund for California resident Mikayla Foss and Michigan resident Abigail Garbarino who were attending ASU and Eleanor Wiersma from Maryland, who was going to UofA. And he asked Sanders to allow the case to proceed as a class action, meaning any ruling would affect all others who Entrekin contends were overcharged.

Sanders, however, said the law’s sole purpose is to put a restriction on the state and universities extending benefits to those not here legally.

“It does not provide an entitlement to U.S. citizens,” she wrote. “Nor does it prohibit educational institutions from classifying non-resident students as such, or from collecting non-resident tuition from them.”

Entrekin, however, said that universities, in entering into a contract with the students to charge them out-of-state tuition, violated federal law.

He did not dispute that the students did get what they bargained for: an education at a price they knew up front. But Entrekin said that does not matter.

“You cannot enforce a contractual provision that is illegal,” he said.

CDC order gives new protections from eviction

Eviction Notice Letter on Front  Door

A new federal directive could provide Arizona renters with protections even if the state Supreme Court rules that an anti-eviction order by Gov. Doug Ducey is illegal and unenforceable.

And the federal order would be in place for a longer period of time.

The order by the Centers for Disease Control and Prevention prohibits millions of renters from being ousted from their homes or apartments due to nonpayment of rent.

It is far more expansive than earlier federal directives that had covered only federally financed rental units. The conditions to get the relief also could be seen as more liberal than those imposed by Ducey in Arizona.

And this new order goes through the end of the year – Ducey’s executive order expires at the end of October.

The action comes just weeks after President Trump directed the CDC to study the issue. But the president, facing a tough re-election bid this year, moved to take full credit.

“I want to make it unmistakably clear that I’m protecting people from evictions,” he said in a prepared statement.

It also comes as the Arizona Multihousing Association is trying to convince the Arizona Supreme Court that it should override the governor’s own similar directive. Attorneys for the landlord group contend that the emergency powers lawmakers gave to governors decades ago do not permit what amounts to seizure of property.

But assuming the CDC order is valid – and there have been no challenges filed so far – it could mean that the Arizona landlords could win their lawsuit and still not be able to evict tenants.

There was no immediate response from either the landlord organization or its legal team.

The new federal directive has a multi-part test to qualify.

First is a requirement that the tenant has “used best efforts” to obtain all available government assistance for rent or housing. The order, however, does not define what that involves.

Similarly, tenants must make “best efforts” – again, undefined – to make timely partial payments “that are as close to the full payment as the individual’s circumstances may permit.”

There is an income cap of $99,000 for this year for individuals and $198,000 for couples filing joint returns.

Also required is a reason for the inability to pay rent, which can be “substantial” loss of household income, loss of work hours or wages, a layoff, or “extraordinary out-of-pocket medical expenses.” That last category includes unreimbursed medical expenses likely to exceed 7.5% of an individual’s gross income for the year.

Finally, there is a requirement for an applicant to say that eviction likely would leave the person or family homeless or, at the very least, force them to live “in close quarters in a new congregate or shared living setting.”

That last provision could provide the legal underpinnings for the order to be considered valid.

“Housing stability helps protect public health because homelessness increases the likelihood of individuals moving into congregate setting, such as homeless shelters, which then puts individuals at higher risk to COVID-19,” the directive states. More to the point, it says that the ability of these facilities to do things like social distancing and other infection-control measures decreases as crowding increases.

“Unsheltered homelessness also increases the risk that individuals will experience severe illness from COVID-19,” the CDC states.

As with Ducey’s own order, the CDC says none of this removes the legal obligation of anyone to pay rent or other financial obligations under lease agreements. And it allows landlords to collect late fees, penalties and interest.

But it means that, at least through the end of the year, failure to do that won’t put an individual or family onto the street.

That income figure for eligibility, according to the CDC, is not arbitrary.

The agency cites a national study showing that someone would need to be earning about $49,837 a year to afford a two-bedroom unit without spending more than 30% of income on rent.

Under the CDC order, violators can be fined $100,000 and jailed for up to a year; for business enterprises the fine is $200,000 per violation or $500,000 if it results in death.

Ducey’s own executive order has a separate list of what can exempt a tenant from being evicted.

Factors include the need of someone diagnosed with COVID-19 to be quarantined, having health conditions that put them at higher-than-average risk for contracting the disease, or substantial loss of income.

But there is a workaround for landlords to the Arizona order. It allows a judge to order an eviction when it is “necessary in the interest of justice” or for other violations of the lease, like lying about the number of occupants, pets, income, employment or a criminal record.

The CDC actions drew a mixed reaction from the National Low Income Housing Coalition.

Diane Yentel, its president and CEO, called the move “long overdue and badly needed.”

But in a prepared statement she also called it a “half-measure” because it simply delays the problem of evictions and provides no financial relief. She urged Congress and the White House to try to iron out differences in a COVID-19 relief bill that she said would provide at least $100 billion in emergency rental assistance.

Chief justice revises order to restrict photography

Arizona Supreme Court (Dillon Rosenblatt/Arizona Capitol Times)
Arizona Supreme Court (Dillon Rosenblatt/Arizona Capitol Times)

Facing criticism, the chief justice of the Arizona Supreme Court on November 6 rescinded an order that banned photography and videos around the courthouse and even on the sidewalks.

The new order issued by Chief Justice Robert Brutinel keeps in place part of last month’s original order that bars people from taking photographs, recording video and live streaming inside the building that houses the Supreme Court and one division of the Court of Appeals. The identical rules apply to the other Court of Appeals division in Tucson.

But gone is the expansive language that made such activities illegal at entrances, exits, steps, stairways and patios and the parking area adjacent to the courthouses and even the sidewalks.

In its place is language that appears designed to address at least part of the issue that resulted in Brutinel issuing the first order: concern about protests outside the building and protesters with cameras that might intimidate those going to court, all of which can disrupt court business.

The new wording prohibits “any activity that threatens any person, disrupts court operations, or compromises court security at entrances and exits and on patios, steps, and adjacent marking areas dedicated to court use.” And there is no restriction on what can occur on sidewalks.

In an interview November 6, Brutinel told Capitol Media Services that the original order was designed to protect the rights of individuals who did not want to be filmed and not want to be identified, particularly victims and jurors.

“It was never intended to impinge on people’s rights to stand out in front of the courthouse and take pictures and, even with permission, to come into the courthouse and take pictures,” he said.

“We wanted some control over making sure we knew who was going to be there doing that and that it didn’t interfere (and) the people that did it were going to be respectful of the rights of the people that didn’t want to be filmed,” Brutinel said. “And I don’t think we did a good enough job of drafting that order.”

That original order, the justice said, resulted in “lots of feedback.” Some of that came from attorney Dan Barr who specializes in First Amendment issues who was critical of Brutinel’s earlier order.

Barr said he was consulted last week about revisions to that order. And he told Capitol Media Services that this time Brutinel and the court staffers who crafted it got it right.

The key, said Barr, is focusing on the things that can be considered legitimate concerns of the court.

“For stuff outside the courthouse now, you see it’s all aimed at disruptive conduct and not at photography or First Amendment protected activities,” he said.

Barr said that is similar to the rules that now exist at the U.S. Supreme Court about the plaza, the vast expanse between the steps to the nation’s high court and the public sidewalk.

“Photography is perfectly fine and media interviews are perfectly fine,” he said. “But you can’t do things that are disruptive there.”

For that reason, Barr said, court security officials can intercede if reporters are conducting interviews on courthouse steps if they are blocking access to the courthouse or preventing people from leaving the parking lot.

Barr said he is pleased not just by the changes but how quickly Brutinel responded to the concerns.

“Give the court credit for reconsidering this and fixing this rule, and doing it fairly quickly, especially when you compare it with other public agencies and do stuff like this and you have to file an action or something like that,” he said. “They listened to our concerns and they changed it.”

The new rule, like its predecessor, does permit exceptions for those who seek written permission at least two days ahead of any scheduled event to take pictures or videos inside the courthouse. That is consistent with current practice that permits newspaper and television photographers and videographers to take pictures during open sessions of court.

And the rule also allows for pictures to be taken without advance permission for “educational and ceremonial events” like school visits, judges being sworn in, and procedures to swear in new attorneys to the State Bar of Arizona.

Commission narrows field of Supreme Court applicants

Judges office

Maricopa County Attorney Bill Montgomery is one of 11 applicants for a spot on the Arizona Supreme Court who will move on to the interview process with the Commission on Appellate Court Appointments.

The 14-member commission met today to begin vetting the applicants vying for the seat held by Justice John Pelander, who will retire March 1.

Although no one who attended the public meeting spoke against any of the applicants, the AZ Mirror published a scathing letter from Mikel Steinfeld, president of the Arizona Attorneys for Criminal Justice, saying Montgomery isn’t fit to be a Supreme Court justice.

“. . . Montgomery’s background shows that he lacks traits necessary to serve in this capacity: He can’t fairly consider misconduct allegations, is driven by ideology and lacks appellate experience crucial to the highest court in our state,” Steinfeld wrote.

Steinfeld said in his letter that it is the Supreme Court’s job to oversee attorney discipline and establish attorney rules of conduct, but Montgomery has turned a blind eye to misconduct of prosecutors in his office. Steinfeld said Montgomery’s record shows he tried to use his position to obstruct the Medical Marijuana Act, a voter-approved law, but the high court is supposed to uphold the law. And Steinfeld also criticized Montgomery for his lack of experience at the appellate court level compared to the “solid foundation of appellate experience” of the rest of the applicants.

“Montgomery is a politician first and foremost,” Steinfeld said.

Two people spoke in favor of Montgomery: Ray Arvizu and Daniel Ortega.

They both shared stories about Montgomery and expressed how willing he is to work across party lines, how he is genuine, sincere and transparent. Ortega, a progressive Democrat said the county attorney “truly cares about the community,” and will always sit down to listen what the other side has to say.

James Beene, Maria Elena Cruz, and Kent Cattani, the only repeat applicant, passed through unanimously, while Montgomery got 12 of 13 votes. The commission’s chairman, Chief Justice Scott Bales, did not vote on any of the candidates.

The other candidates who made it to the interview round in order of votes from the commission are: David Euchner and Andrew Jacobs with 11; Sean Brearcliffe and Richard Gordon with 10; Rachel Nassen with nine; Jennifer Perkins with eight; and Timothy Wright with the minimum of seven votes.

Randall Howe and Paul Avelar did not make the cut.

Once the interview process is complete, the commission must send at least three candidates to the governor, no more than two-thirds can come from the same political party. Only four of the candidates to apply are not registered Republicans and they all will advance to the interview stage: Democrats Cruz and Jacobs, Independent Nassen, and Libertarian Euchner. At least one of those names will make the short list for Gov. Doug Ducey to consider.

The interviews with the eleven applicants will each take between 20 to 30 minutes all on March 1.

Brearcliffe and Gordon contributed money to Ducey’s campaign for governor in 2018. Two of the three justices Ducey has already appointed also contributed to his prior campaign before their appointments: Justices Clint Bolick and John Lopez.

All three women applicants made it through to the next round, which is significant because Justice Ann Scott Timmer is currently the only woman on the court. Lopez is the first and only Latino to be appointed to the court, and no black justices have ever served on the state Supreme Court. Cruz would be the first Latina and first black justice if she’s chosen since she is mixed.

After March 1, the commission has 60 days to submit a shortlist to Ducey, and then Ducey has 60 days to appoint a new justice. If he fails to meet that deadline, the chief justice would get to appoint the newest member. That has never happened.

Conservative Prescott, liberal Tucson coalesce in election-date lawsuit

Three GOP lawmakers are preparing legislation to punish the city of Tucson, shown here in an aerial view, if voters pass a ballot measure to make the city a sanctuary for illegal immigrants. PHOTO COURTESY U.S. DEPARTMENT OF TRANSPORTATION
Shown here is in an aerial view of Tucson. PHOTO COURTESY U.S. DEPARTMENT OF TRANSPORTATION

The Democrat enclave of Tucson is getting help from largely Republican Prescott in its fight with the Arizona Legislature and Attorney General Mark Brnovich about when cities can have their local elections.

In a new legal brief, attorneys for the Yavapai County community are telling the Arizona Supreme Court they should reject efforts by Brnovich to force all cities to align the dates they choose the mayor and council members with statewide elections.

City Attorney Jon Paladini told the justices that the Arizona Constitution gives charter cities the right to control issues of strictly local concern. And he said elections are quintessential local issues.

But this is more than about Prescott helping Tucson.

Paladini said if the Supreme Court upholds the 2018 law Brnovich hopes to enforce, then Prescott, too, will be forced to move its elections to even-numbered years.

“In particular, (the law) will decrease voter turnout, increase the cost of local elections, create legal exposure and cause other serious practical problems,” he said.

What the Supreme Court decides could finally put to rest multi-year efforts of the Republican-controlled legislature to bring city elections into line with what lawmakers contend is in the best interests of the state and its residents.

It started in 2012 with a law that decreed all local elections have to be conducted on the same even-year cycle as federal and statewide votes. Proponents argued that conforming election dates would increase voter turnout.

Tucson, with its odd-year cycle, filed suit.

Attorneys for the city pointed out that its voters — along with those in 18 other Arizona communities — have adopted local charters. More to the point the state constitution gives these charter cities specific rights to legislate on matters of “strictly local concern.”

In 2014, the Court of Appeals agreed with the city, ruling the law “improperly intrudes on the constitutional authority of charter cities.” The Supreme Court did not disturb that decision.

In 2018, Sen. J.D. Mesnard, R-Chandler, got colleagues to approve the measure again, but with a twist.

This new version says cities have to come into conformance with the state election schedule when turnout in their local elections is at least 25 percent less than in the most recent statewide vote. That logic was designed to prove the claim that lawmakers were interested in higher voter turnout and that made it a legitimate interest of statewide concern.

The 2019 Tucson election fell below that threshold. But when Tucson refused to move its elections, Mesnard got Brnovich to ask the Supreme Court to force the city to comply or risk the loss of half of its state aid.

With the justices set to consider the issue next month, Prescott has come to Tucson’s defense.

“The constitutional drafters recognized that it is in the best interest of charter cities, and their respective citizens, that they be autonomous and self-governing with little interference from the state when it comes to local concerns,” Paladini wrote. And that, he said, includes Prescott, where voters adopted a “home rule” charter in 1958.

That charter requires the city’s primary elections to be in late August of every odd-numbered year, followed by a general election — if necessary in the city’s nonpartisan system — in November of the same year. All that, Paladini told the justices, will go away if they rule against Tucson.

He also questioned the whole idea that consolidating local elections with statewide votes would actually mean more voter participation.

Paladini pointed out Prescott council elections are conducted entirely by mail. This, he said, creates higher turnout “because voters do not have to take the extra step of contacting the Yavapai Counnty Elections Office and requesting a ballot.”

There also are policy issues.

“The Prescott elections are bipartisan, and if forced to hold elections on even-numbered years, the election issues will be confused with partisan issues which are not matters of ‘local concern,” Paladini wrote.

“Adding in all other municipal, county, state and federal elections to the ballot serves only to cause voter fatigue and confusion,” he continued. “The Prescott voters should be allowed to focus solely on local representation and local concerns rather than being inundated with numerous choices such as rating unknown superior court judges, Corporation Commissioner elections and statewide initiatives.”

Paladini said moving the local elections to even-numbered years will result in additional fees from Yavapai County, with city residents having to pony up money for it to conduct both in-person and mail-in voting.

And then there’s a practical issue.

He pointed out that if a change to even years is mandated, that will affect the remaining terms of mayor and council members who were elected in 2019. That, said Paladini, means either shaving a year off their terms or adding a year “in violation of the Prescott City Charter which will generate legal challenges and decrease confidence in our democratic process.”

“The legislature must not be allowed to unlawfully impose its definition of what is the method and manner of local elections,” he concluded. “The legislature has sought to upend these practice bringing confusion, and doing a disservice to the Prescott voters.”


Charter cities in Arizona:


Casa Grande



— Source: League of Arizona Cities and Towns

Corp Comm candidates debate dark money, renewable energy

Solar Potential

The three Republicans running to become state utility regulators warn that putting Democrats in charge of the regulatory panel would turn Arizona into California.

And they don’t mean that in a good way.

In a debate at KAET-TV on September 30, all three Republicans – Jim O’Connor, Eric Sloan and Lea Marquez Peterson – criticized the self-named “solar team” of Democrats Bill Mundell, Anna Tovar and Shea Stanfield. They said electing the Democrats would mean higher rates as consumers are forced to buy what they contend is more expensive power from renewable resources, just as what has happened in California.

“I am a free-market capitalist,” said O’Connor.

He said that the added costs borne by utilities to purchase power from wind, solar, geothermal and other renewable sources is passed on to consumers, complete with utilities even taking a markup.

“It’s a fantasy to believe that there’s some company with an endless pot of gold that can pick up the check for all this social redistribution,” O’Connor said.

“Any time the commission mandates or subsidizes something, Arizonans end up paying more for something than they should have,” said Sloan. He estimates the current requirement for utilities to purchase more solar power has cost ratepayers $1.2 billion.

Marquez Peterson, the lone incumbent seeking one of the three open seats, said she sees the issue through a different lens.

She said California has vigorously forced utilities to move away from fossil fuels. That, Marquez Peterson said, led to rolling blackouts this summer and utilities in that state trying to buy power from Arizona utilities.

Democrats have their own arguments.

On the financial side, Mundell, who was a commissioner for nearly a decade until 2009 – and a Republican at the time – argued that the mandates that he helped approve at the time actually have resulted in $2 billion in savings for customers. The key, he said, is encouraging things like rooftop solar.

“You don’t have to build big, gigantic new fossil fuel plants, you don’t have to build transmission lines,” Mundell said. And he pointed out that utilities are legally entitled to pass on the cost of new construction to ratepayers.

Tovar said it’s also good for the Arizona economy, making the state the “solar capital” of the nation.

“It will be a win-win situation,” she said. “It will create a new economy with green jobs … that will be creating the thousands of jobs that we desperately need.”

Stanfield took her own swipe at utilities, saying they don’t appear to be interested in providing clean and affordable energy. She said that’s why they need to be “strongly encouraged with mandates and standards and held accountable for steps to get to those mandates.”

Some of the debate about current and potential mandates could end up being academic.

In a recent ruling, the Arizona Supreme Court appears to have narrowed the legal role of the Corporation Commission strictly to setting rates.

That, in turn, could undermine the existing requirement by the commission that utilities generate 15% of their power from renewable sources by 2025. And it also would call into question other proposals – including some by Republicans – to wean utilities in Arizona away from fossil fuels.

Despite the differences over such mandates, five of the candidates say they do believe that climate change is real and that it is caused by human activity. Only O’Connor said he has his doubts.

The other key issue in the race could come down to who voters believe is least likely to be influenced by the utilities they are supposed to be regulating.

Next month’s election comes as the commission is coming off years of low public trust, much of that directly related to the fact that Arizona Public Service, the state’s largest electric utility, funneled millions of dollars into prior campaigns for Republicans in the 2014 and 2016 elections.

APS appears to have stayed out of the 2018 race after their practices were unveiled. And, to date, there is no evidence that they are backing any of the contenders, all of whom are running with public financing.

“The dark money has corrupted the commission,” Mundell said. “It’s led to those non-justified rate increases and the crushing of rooftop solar.”

Sloan countered that it hasn’t just been Republicans who have benefited from outside spending, mentioning the $2.8 million that Chispa Arizona, the political arm of the League of Conservation Voters, put into trying to elect Democrats in 2018.

But Sloan’s own background made him a target.

He ran the Arizona Coalition for Reliable Energy in 2016. That was the fund financed by APS that pushed for election of Republicans.

That $10,000 contract, said Mundell, makes him suspect as someone who could be an independent voice and properly regulate utilities.

Sloan described his activities as simply a “get-out-the-vote” effort. That drew a sharp retort from Tovar.

“It was a get-out-to-vote for three Republicans on the commission,” she said.

Both Mundell and Tovar did not dispute that they took money from an APS political action committee when they were members of the Legislature. But she said that was a different time.

“We didn’t have these issues with APS,” Tovar said.

Mundell also found himself defending his previous time on the commission, acknowledging he probably voted for some rate increases for APS but saying he also voted against others.

Prior cash from Pinnacle West Capital Corp., the parent company of APS, also became an issue during the debate. Marquez Peterson not only got $2,500 for her 2018 congressional race from the company, but also $5,000 from David Hutchens, chief executive of Tucson Electric Power.

She said that is irrelevant to the job she wants to keep after Gov. Doug Ducey appointed her to the commission, replacing Andy Tobin who left to become head of the state Department of Administration.

“It in no way unduly influences me as commissioner,” she said. And Marquez Peterson also said that she was involved since joining the commission in approving a new code of ethics for regulators.

“I think that we’ve turned the tide” on the commission’s reputation. Beyond that, Marquez Peterson said that the individuals who were leading APS at the time are since gone.

County recorder calls process to vet petitions into question


For decades, Arizona courts have relied on county recorders to review signatures legislative candidates submit to qualify for the ballot. Maricopa County Recorder Adrian Fontes, who is heading the office in an election year for the first time, isn’t satisfied with that decades-old system, and he hasn’t been shy about saying so.

Fontes testified in a June trial that the recorder’s role in the process is a “courtesy” to the courts, one that’s “been in place too long and I’ll probably stop it.”

“This is a custom or a tradition, or I don’t know what it’s called because there’s no statute that defines it, that goes back over 30 years,” Fontes told the Arizona Capitol Times following the trial.  “There are folks who believe for some reason that, first of all, it is the right thing to do, and second of all, the legal thing to do. And just because we’ve been doing it for a long time doesn’t mean that it’s either.”

Fontes’ statement at trial caught the attention of elections attorneys and officials at the Secretary of State’s Office, like Elections Director Eric Spencer. He warned that the system by which candidates are vetted before their name can appear on the ballot would be thrown in disarray were it not for the help of the Maricopa County Recorder’s Office and recorders in counties throughout the state.

The Arizona Supreme Court also took notice, and now the justices have essentially asked the state Legislature to set the record straight on what responsibilities recorders have when a candidate’s qualification for the ballot is challenged.

Fontes says he’d rather do things his own way, outside the scope of the Legislature. He proposes working through the courts, with input from candidates, elections attorneys and other county recorders, to find ways to streamline the process for reviewing signatures in challenges like the one in which he was called to testify.

There’s a general sense among county recorders, Fontes claims, that starting a discussion about ways to improve the process is a good idea. A newly-elected Democrat as of 2016, Fontes said his first experience in the system has convinced him that there are flaws that need fixing.

“I don’t like that it’s completely unpredictable. I don’t like that we have to unexpectedly tap into resources that aren’t readily available to us. I don’t like the fact that some of the complaints (from defendants) are legitimate complaints,” Fontes said.


To get their names on the ballot, would-be candidates for the Arizona House or Senate must collect a certain number of signatures from registered voters in the district they hope to represent. Those signatures are submitted to the Secretary of State’s Office, which does nothing to verify whether the signatures, known as nominating petitions, are valid. They accept the candidates at their word.

But just about anyone can accuse a candidate of failing to qualify for the ballot by scrutinizing those petitions and suing in court. There were 30 such challenges at the legislative, statewide and federal level in 2018, roughly double the average of past election cycles, according to Spencer.

A vast majority of those lawsuits wind up in Maricopa County Superior Court, where judges rely on a review of the scrutinized petitions by the County Recorder’s Office to decide whether a candidate’s name should be on the ballot.

That’s what happened in the case of independent candidate Mark Syms, the husband of Rep. Maria Syms, R-Paradise Valley. Mark Syms utilized paid signature gatherers to collect 2,156 signatures in just 10 days, an extraordinary feat that immediately drew scrutiny from another candidate in the race, Sen. Kate Brophy McGee. Brophy McGee’s husband filed a challenge alleging that hundreds of those signatures were invalid, a legal maneuver that triggers extra work for Fontes and his election team.

The Syms case was just one of many like it that had Fontes and his staff working overtime to review thousands of signatures, on top of the work they’re already putting in preparing for the primary election on August 28. There’s nothing in state law that explicitly required Fontes to do this, he has argued.

“Let’s be honest. If I had decided to, I could’ve said no to all of this. I could’ve said no to this in February,” Fontes said. “I could’ve said, we’re not participating, and you’re going to have to get a court order to make that happen.”

At least for this election, Fontes went along with the system as is, and of the 1,930 signatures Syms submitted that Fontes’ office reviewed, 1,675 signatures were found to be invalid for various reasons.

Jeremy Phillips, Syms’ attorney, painted the process by which the recorders verify signatures as vague and undefined – he made a point to note that only one review of Syms’ signatures was conducted, while in other instances two or three rounds of reviews take place – and questioned the reliability of Fontes’ work.

Fontes testified at trial there was nothing unusual about how his office reviewed Syms’ signatures, and that a second or third check wasn’t needed in this case because Syms’ was nowhere close to having the necessary signatures to qualify. But Fontes later said he understood the frustration with a process that has been shaped more by time, tradition, and common practice than by the law.

“There’s one thing with these guys, there’s a small theme sort of, one of the many themes in here that they hit on, that I share the concern,” he said. “And that is, it appears as though there’s no real roadmap.”

Predictability in the form of a clearly defined process would benefit defendants like Syms, and all others involved in the legal process, Fontes said.

“The question ends up becoming, do I want to maintain the status quo of essentially a glorified paralegal who’s working for a candidate verifying signatures, or do we want to somehow more formalize this role and make it something that’s planned and thought through and more well established?” he said.


Election attorney Joe Kanefield said even though there isn’t an explicit mandate in state law requiring recorders to review the veracity of nominating petitions, it’s a process that the Legislature and the courts have alluded to and acknowledged for years.

“They’ve done everything but say, ‘The recorders have to do this,’” Kanefield said.

There are laws on the books that don’t make sense without the implicit understanding that the recorders help judges make decisions in election challenges, like a law that allows a county recorder to recover legal fees and costs if it turns out an election challenge was filed without substantial justification. And by law, the county recorder in the district in which a candidate is running must be named as a defendant in court filings. “If you don’t name the recorder, you’re going to get dismissed,” Kanefield said.

That makes sense given the wealth of information the recorders have at their disposal, he said. No one has more access to voter signatures, voter files and other records that can be used to verify a nominating petition than the recorders.

“I talked to (Fontes) personally about it. I get it,” Kanefield told the Capitol Times. “I understand that the burden that was placed upon him, and the frustration that he no doubt felt by having to undertake, to verify all these signatures in a short period of time when he had multiple other election related tasks that he was working on… But the reality is that it’s critical.”

Without the recorders, election challenges would be at the mercy of a plaintiff to bear the burden of reviewing each signature and proving that petitions are fraudulent.

It would also be a burden on the defendants to find proof that the signatures they gathered are valid.

“It would be almost impossible for a plaintiff to kick a candidate off the ballot because they would never be able to gather the evidence they would need to prove there weren’t enough valid signatures that were needed,” Spencer said.

While there could be room for change, Kanefield cautioned against Fontes’ assertion in court that he might simply stop verifying signatures when challenges are filed.

“Not doing this is not the right answer,” Kanefield said. “What you need is more resources that should be provided to you by the state or the county to do your job.”

Fontes said he recognized this, and that’s why he didn’t simply put a stop to the process this election year. “What kind of position would the entire set of folks who have these expectations in my office be in? That would’ve been unfair,” he said.

The state’s Supreme Court justices seem to feel the same way. In their opinion barring Syms from the ballot, Vice Chief Justice Robert Brutinel took time to point out the “significant role” county recorders play in petition challenges, and how concerned the justices were by Fontes’ assertion that he’d “probably stop” verifying signatures in the future.

The justices were “troubled by the opaqueness of the process evidenced by Maricopa County Recorder Adrian Fontes’ testimony in the case… The candidates, petition challengers, and the courts, as well as our democratic system as a whole, would benefit from a far clearer process with defined statutory roles for the county recorders.”


Brophy McGee, a Phoenix Republican, said she’s willing to take up the justices’ call for legislation to clarify the recorder’s roll in candidate challenges.

“I think it’s important that we make sure that it is outlined in statute, that somebody needs to verify from an independent party, and historically that’s been the county recorders,” she said.

Brophy McGee also wants to make candidates more responsible for the signatures they submit, an idea that could lessen the burden on recorders like Fontes who verify signatures.

She’s convinced that Syms’ case was just one of several races involving pervasive signature forgery and fraud, which had it not been challenged, would have resulted in some candidates illegitimately appearing on the ballot. There may be something to that – Spencer has said the Secretary of State’s Office is preparing to ask the attorney general to investigate fraud allegations in four races, including Syms. (A trial court judge found Syms was not actively involved in any fraud scheme or that he was not aware of bad signatures before he turned them in).

If a candidate with fraudulent signatures “is not challenged, it opens the door to anybody else following that line,” Brophy McGee said. “And anything I can do going forward to keep that from happening, I will do.”

It’s also incumbent on candidates to vet their own signatures before submitting them, Brophy McGee said.  That was the case with Rep. Mark Cardenas, who briefly ran for state treasurer but didn’t file nominating petitions because the people he hired to collect signatures provided fraudulent signatures the day before the filing deadline.

Both Brophy McGee and Spencer pointed to Cardenas, a Phoenix Democrat, as an example of a candidate taking responsibility for their signatures and not unnecessarily burdening the elections system.

“It is not enough to call yourself a victim of fraud,” Spencer said. “Candidates aren’t victims here.”

Brophy McGee said signatures for candidates should be held to the same standards as signatures for initiatives and referenda. Unlike with candidates, the Secretary of State’s Office takes an active role in reviewing the validity of signatures submitted when people propose or challenge laws via the ballot, as do county recorders.

That’s all spelled out in the law, whereas the law is vague for candidates.

“The idea being that we need to hold ourselves at least as accountable for the product we submit in support of our candidacies as any initiative,” Brophy McGee said. “We tend to rule ourselves out as politicians from the rules we hold others to, and that’s something that’s bothered me very much.”

Court aims to end racial bias in jury selection with new rules

Jurors in courtroom during trial

Arizona is about to become the first state in the nation to eliminate the ability of attorneys to strike prospective jurors based on what may only be hunches, a practice that often ends up culling minorities.

The state Supreme Court will announce this week approval of a new rule eliminating what are called “peremptory challenges.” This is the ability of attorneys in civil and criminal trials to disqualify potential juror without citing any reason at all.

Instead, as of Jan. 1, lawyers will need some specific reason to strike someone from the jury pool, like an admitted bias or their personal knowledge of the parties or the dispute.

The move comes over the objections from several prosecutors who contend, as does Maricopa County Attorney Allister Adel, it “will ultimately lead to trials that are less fair for all sides.”

Instead, the Supreme Court justices accepted the recommendation of two judges from the state Court of Appeals, Peter Swann and Paul McMurdie, who argued that the move will go a long way to eliminating persistent problems with juries that often do not reflect the racial and ethnic backgrounds of their communities.

“The primary tool by which this discrimination is practiced is the peremptory strike,” they wrote in their petition.

No one has disputed that lawyers have used peremptory challenges to fashion a jury they think will be more favorable to their arguments.

But the appellate judges noted this is not anything guaranteed in the U.S. Constitution. In fact, they said, most states did not allow for it until after the Civil War.

“A cynical observer might note that the power came into being in the years after black Americans obtained the right to serve on juries,” they wrote.

The problem was addressed — or at least supposed to be addressed — by the U.S. Supreme Court in 1986 in the case of Batson v. Kentucky.

In that case, a Black man was on trial charged with burglary and receipt of stolen goods.

The prosecutor used his peremptory challenges to eliminate all four Black prospective jurors. Batson was then convicted.

In a 7-2 ruling, the nation’s high court said the prosecutor’s actions unconstitutionally denied Batson his right to a fair trial and his right to equal treatment under the law.

Since then, any time there has been a peremptory challenge to a minority juror the attorney needs to articulate a non-racial reason for his or her decision. But Swann and McMurdie said the data they’ve seen convinces them that it still means fewer minorities on juries, even with lawyers citing what they claim is a legitimate reason.

“There can be no doubt that race continues to play a major role in the exercise of peremptories decades after Batson was decided,” they wrote.

There is evidence of that in Arizona.

Data compiled by the Administrative Office of the Courts shows that in criminal cases, the proportion of white jurors seated varied only 3% from their representation in the population.

By contrast, Black jurors were underrepresented by 16%. And it was worse for Hispanics who were underrepresented 21% of the time, with a 51% gap for Native Americans.

The disparities were even more pronounced in civil cases.

But much of the opposition comes from prosecutors.

Adel said the peremptory challenge gives prosecutors a chance to strike jurors who they believe, based on their answers to questions asked during the screen process, hold some bias.

“Expecting a prospective juror to candidly admit that they cannot be fair is not realistic,” wrote Kenneth Vick, her chief deputy, on her behalf.

“Most people do not think of themselves as unfair or biased,” he continued. “Others, even if they recognize a bias in themselves, likely do not want to express their true opinions on sensitive topics like race, their views on the law, or their beliefs in the equity or inequity of the legal system in front of a group of strangers.”

That view was echoed by Elizabeth Burton Ortiz, executive director of the Arizona Prosecuting Attorneys’ Advisory Council.

“What reasonable minded person would want to publicly admit on the record, in front of a group of stranger that they did not even judge themselves to be fair?” she wrote.

And Assistant Attorney General Nicholas Klingerman, writing for Mark Brnovich, his boss, argued that peremptory challenges help ensure that those who are unfit do not serve on juries and eliminates the need for a lawyer to find some “challenge for cause.”

Instead, Brnovich wants more study of the matter.

But Mikel Steinfeld, a Maricopa County public defender, said the move is long overdue.

“There is near-uniform agreement that peremptory strikes have long been a tool for discrimination,” he wrote. He cited a 2005 survey which found that every lawyer interviewed considered race and gender when picking a jury.

Among judges, the sentiment is more divided.

Nine out of the 10 Yavapai County Superior Court judges submitted comments in support of the change, concluding that the peremptory process is misued.

But a majority of judges in Mohave County are opposed. Kip Anderson, administrator of the court, said peremptory challenges are a tool not just for prosecutors but also defendants whose attorneys may sense bias but not be able to articulate it in challenging someone for cause.

“Characteristics such as facial expressions, body language, tone of voice, dress and grooming are not verbally expressed by prospective jurors and are rarely reflected in the record,” Anderson wrote. “However, they often indicate that these jurors would not favor the defendant.”

And even the Arizona Black Bar, while taking no formal position, is concerned that complete abolition of peremptory challenges “could have unintended and undesirable consequences.”

Not all the opposition to the change is coming from prosecutors. Attorneys defending doctors and hospitals in medical malpractice cases involving millions of dollars also want to keep their ability to strike jurors without having to articulate a reason.

“These cases can be highly emotional,” they wrote. “It is especially important to have the peremptory challenge safety valve for ensuring that the jurors who are seated in these cases are not unfairly biased for or against one side or the other.”

But McMurdie and Swann say there’s another — and potentially more practical — reason, aside from racial and ethnic balance, to eliminate peremptory challenges.

In capital cases, each side now is allowed 10 peremptory challenges. The figure is six per side in other superior court criminal cases and two in lower court.

For civil trials, each side gets four such challenges.

Allowing these strikes means that more people have to be called for jury duty than actually will be needed. That, they said means that “a substantial percentage of jurors who make the effort to appear for jury service are merely fodder for arbitrary hunch-based strikes.”

The new rule still allows attorneys to challenge a prospective juror “for cause.” But it will require the lawyer to prove “by a preponderance of the evidence that the juror cannot render a fair and impartial verdict.”


Court clerk’s removal from office raises legal questions

Cindy Woodman (Photo by Jon Johnson/Gila Herald)
Cindy Woodman (Photo by Jon Johnson/Gila Herald)

It was a rough first year on the job for Cindy Woodman. The Graham County Superior Court clerk was in her first-ever role in the political arena, and some felt she was in over her head.

Within months after Woodman, a dental hygienist, took office, her critics said she created a hostile workplace environment, pushing some staffers to quit.

But among several alleged mistakes, her mishandling of evidence in a felony case was the final straw for many in the county, including Graham County Superior Court Judge Michael Peterson. He was so fed up with what he saw as incompetence that he compiled her mistakes and convinced the Arizona Supreme Court’s chief justice to effectively remove her from office.

Chief Justice Robert Brutinel’s administrative order on October 11 assigning administrative supervision of the clerk’s office to Petersen left some questioning the legality of the move.

On his new legal blog, attorney Kory Langhofer wrote that after reviewing all of the Arizona Supreme Court’s administrative orders since 1956, he and his team found “no historical precedent for the ‘administrative’ removal of another constitutional officer.”

“Impeachment, that’s definitely constitutional; recall, also constitutional; administrative removal, I don’t see it,” Langhofer wrote.

robert-brutinelBrutinel cited a provision in the Arizona Constitution that gives the Supreme Court “administrative supervision over all the courts of the state.” Brutinel did not immediately respond to requests for an interview for this story.

Paul Bender, an ASU law professor who teaches constitutional law, said the situation can be viewed as “overruling the will of the people.” He also says it highlights a glaring problem in the state’s legal structure.

“This illustrates why it’s such a bad idea to have people like clerks of the court elected even though they have to serve under judges,” Bender said. “And giving the court clerks some duties and giving the judges some duties and conflicts can arise and you have both of them elected by the people.”

According to the Arizona Constitution, a county clerk can only be removed by a recall vote or an impeachment. A recall effort was launched in September, and organizers have until January 2020 to collect 2,698 valid signatures from registered voters.

As for impeachment, Bender said that process is cumbersome and the least likely of the two sluggish options, as the state House of Representatives would need to get involved to deal with a local issue.

While those options exist, they may not be as quick as the chief justice would like it to be, Bender said. But there’s nothing in the Constitution that gives the justice the right to remove a clerk – the closest he can get is “limiting the duties” of the clerk and appointing a “lead clerk.”

“I don’t think that works,” Bender said. “Ms. Woodman has been deprived of doing the things that the clerk is told they’re entitled and supposed to do. So I’m not sure if you can get around that by saying, ‘Well, we’re not removing you as clerk. You can stay on as a clerk and you can issue driver’s licenses or something like that, but you can’t do anything in conjunction with the courts.’”

Woodman’s removal means that if anyone wants to file a lawsuit, an appeal or request records over what was said in the courtroom, Peterson will have to approve it, Langhofer said.

“There’s a reason the judicial function has been separated from the transparency and records-keeping function,” Langhofer told Arizona Capitol Times. “That’s no longer the case in Graham County.”

Things will remain this way until the local judge says it should end, Langhofer said, which means it’s essentially permanent.

While Woodman is no longer in the office, she still receives her usual paycheck and holds her title in name only.

Michael Peterson
Michael Peterson

“What he (Peterson) did was an overstep,” Woodman said, adding that removing her for incompetence isn’t fair and sets a dangerous precedent, as many elected officials lack political experience and need time to do their jobs well.

“This has a major effect on this community and a huge effect on the Clerk of the Court Office throughout Arizona. Because if this judge has the authority to take over the Clerk of the Court Office in little Graham County, what is going to happen to the Clerk of the Court offices, potentially, in any other county throughout this state?”

Woodman said she was advised against resigning and she declined to discuss her legal options.

Peterson’s complaints came in a nine-page letter to Brutinel. Peterson wrote that Woodman had never held a job at the clerk’s office or any court and had no management experience.

“Despite this lack of knowledge and experience concerning the operations of a clerk’s office and its role in court operations, Ms. Woodman redirected clerk’s office operations without learning the duties performed by her staff,” Peterson wrote.

The letter lists examples of what Peterson sees as negligence and incompetence, like employee claims of a hostile workplace environment, code of conduct violations, a lack of initiative to develop her “basic management or leadership skills,” employee turnover and several other areas of concern.

One of the main problems Peterson points out is the mishandling of evidence in a felony case, which Woodman chalked up to miscommunication between her and the court. In the letter, Peterson asked Brutinel to banish her from the courthouse, reassign her duties to someone else and have that person be able to decide if or when to relieve her of that punishment.

Woodman said that while there were some growing pains and a learning curve to the job, the instances Peterson listed were exaggerated and did not warrant her removal.

Because of the unique situation, Bender said he understands what led to that decision and he thinks the judges handled this correctly.

On the other hand, while other options of removal may not be as quick, Bender said, they should also be pursued and allowed to play out, but, he conceded this circumstance constituted an emergency given the degree of alleged incompetence.

Bender said that conflicts can arise because of the way the Arizona Constitution defines the relationship between clerks and judges, and because clerks are elected not appointed. When they do, Bender said, the Constitution doesn’t provide any good way to resolve that.

“People like clerks of court shouldn’t be elected by the people, they should be appointed by judges,” he said, adding that judges should have complete authority to remove them if they’re not doing their jobs right.

“That’s just the problem of the Arizona Constitution; it’s remarkable in how many offices it permits people to elect … in most states, people like attorneys general and clerks of court are not elected by the people, they are administrative offices who ought to be appointed by chief administrators.”

Woodman’s days in office may be numbered as recall organizers, which includes former Graham County Superior Court Clerk Darlee Maylen, estimate they have gathered about half of the required signatures. If and when they gather enough signatures before January, the soonest they could bring it to a vote would be May 19, and if not then, August 4.

If not enough signatures are turned in by the deadline, the recall effort is dead.

Court expansion brings more cases, less efficiency

The Arizona Supreme Court from left are James Beene, Andrew Gould, Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery.
The Arizona Supreme Court from left are James Beene, Andrew Gould, Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery.

Arizona Supreme Court Chief Justice Robert Brutinel said the addition of two more justices has made the court less efficient.

Doug Ducey
Doug Ducey

Brutinel’s assessment contradicts Gov. Doug Ducey’s justification in 2016 for signing legislation to expand the court from five to seven justices “. . . will ensure that the court can increase efficiency, hear more cases and issue more opinions.”

Brutinel, a Republican appointed by Gov. Jan Brewer in 2010, told Arizona Capitol Times he believes not only that the court is less efficient than it was with five justices, but that five justices was plenty to handle any increased caseload the bench has seen since.

“[When] five justices take 10 cases in a year, they write 50 opinions in total. When seven justices take 10 cases it’s 70 opinions,” Brutinel said, citing an example of why the court is less efficient.

Brutinel was against the expansion in 2016 and though he likes his coworkers that Ducey added to the bench –– Justices Andrew Gould and John Lopez –– he said the additional justices mean two law clerks per justice, which is six additional people who will look at a case before issuing an opinion.

“I’m not saying it’s a bad thing, but it’s not a more efficient thing,” Brutinel said.

The first time Arizona expanded the court was in 1949 from three to five. The court building at 1501 W. Washington St. was built with the space for seven justice chambers, which was another argument proponents of the expansion used to push the legislation. What that really means, though, is it would not cost taxpayers more money to build those areas.

The expansion does cost roughly $1 million annually.

J.D. Mesnard
J.D. Mesnard

The 2016 expansion was politically charged and passed on partisan lines. The bill’s sponsor, Sen. J.D. Mesnard, R-Chandler, who at the time was Speaker of the House, said at the time there was a political component.

“There’s always going to be a political consideration,” Mesnard said in 2016. “And if there were a Democrat on the ninth floor (where the governor’s office is located) that would be a political consideration that I would take into account.”

Democrats accused Republicans and Ducey of trying to pack the court, a term that came up nationally this year as the prospect of a decades-long conservative majority on the U.S. Supreme Court came up following the death of Ruth Bader Ginsburg.

The idea of adding seats to the nine-justice court has gained renewed traction among Democrats, and Democratic Presidential nominee Joe Biden has dodged multiple questions from the media about the proposal. California Sen. Kamala Harris, refused to answer the question during her debate with Vice President Mike Pence.
Harris, however, expressed support for court-packing during her primary bid for president, along with several other progressive candidates

One of Ducey’s justifications for expanding the court did pan out – sort of.

The number of cases filed with the court did increase in the first two years after Ducey appointed Lopez and Gould, but there is no data to attribute the increase to the expansion.

Kory Langhofer
Kory Langhofer

Republican elections attorney Kory Langhofer, who pens a blog dedicated to following the Arizona Supreme Court called SCOAZ Blog, said cases have been on an incline for years leading up to the expansion.

The Supreme Court handles appeals in civil and criminal matters, death penalty appeals, fast-tracked elections appeals, State Bar matters, Industrial Commission appeals, and certain urgent matters that are allowed to skip the Court of Appeals.

The court only accepts a handful of cases a year for review; the standard for review is if there’s a split on an issue between the two Arizona Court of Appeals divisions, if the justices think case law should be reconsidered or if the issue at hand has statewide importance.

In the five years preceding the expansion, the court saw an average of 1,050 filed cases and terminated an average of 1,049 per year.

Terminations means any resolved matter. A Supreme Court spokesman said not all cases filed in one fiscal year will be terminated in the same year so some years will have more terminations than cases filed.

In Fiscal Years 2017 and 2018, the court saw an average of 1,244 filed cases and terminated 1,168. Then in 2019, those numbers changed a lot. The court saw roughly 200 fewer cases than 2018 and terminated more and filed cases began to rise again in 2020. The same trend exists with written opinions, with 2019 being the year with the lowest number of opinions in a decade.

Patrick Ptak, Ducey’s spokesman, said the 2019 numbers were low because of the “high turnover” on the bench. Brutinel said that’s possible, but did not think there was one area they could point to as to why there were fewer cases and opinions.

Scott Bales, the previous chief justice who retired from the bench in 2019, said the decrease was not an active decision from the court to hear fewer cases or write fewer opinions.

The Arizona Supreme Court often follows a practice of calling up a judge from the Court of Appeals or bringing a justice back from retirement to temporarily fill a seat that is empty because of a vacancy or a recusal.

Bales, the last Democrat to serve on the court, was one of the most ardent critics of the expansion and told Arizona Capitol Times he still does not believe the expansion made the court more efficient, as Ducey claimed it would.

“Additional justices are not required by the court’s caseload,” he wrote in a 2016 letter urging Ducey to veto the bill. “And an expansion of the court (whatever people may otherwise think of its merits) is not warranted when other court-related needs are underfunded.”

Ducey signed the bill anyway, but he “took into account” what Bales had to say, according to his staff.

“No question that five justices would be able to handle the workload,” Brutinel said in an October 14 interview.

Langhofer supports the expanded court and actually views more terminations as a positive factor of the seven-member bench, but also concedes that the court operates at a slower pace now than it did before the expansion.

“You’ve got more people that have to review [the cases],” he said, adding that it obviously takes longer to get seven people’s response than five.

Brutinel and Bales said one thing that did not change with the increase is the number of justices necessary to accept a case – three – rather than increasing it to four of seven.

“Certainly it has made it easier to take cases, but the reality is that if someone feels strongly about a case then most of the time you can convince two others to go along. Convincing three would be more challenging,” Brutinel said.

Between 2012 and 2016 the court issued an average of 36 written opinions with nine of those involving election appeals, which do not have to include a full panel of justices. The following two years saw an uptick again of 43 and 46 opinions, respectively with seven election appeals in 2018. That number dropped in 2019 to 26 total opinions (including the longest duration for a decision at 237 days), and through 10 months this year, it has issued 48 opinions with 13 from election appeals.

Langhofer through his analysis of the court did shoot down one of the main criticisms of expanding.

He said that the more conservative court “has not guaranteed the outcomes preferred by the Republican Party.”

He pointed to two recent rulings, one in the appeal of Republican Arizona Corporation Commissioner Kim Owens losing her candidacy over a petition challenge where the lower court ruled in favor of her, and the second also from 2020 with the Supreme Court unanimously ruling in favor of the Invest in Education ballot measure, a proposed tax on the state’s highest earners.

Even so, the court now lacks in political party breakdown with six belonging to the Republican Party, and one – Clint Bolick – a conservative independent.

Court expansion key to artists’ win in discrimination case

Brush and Nib Studio owners from left are Breanna Koski and Joanna Duka (Facebook)
Brush and Nib Studio owners from left are Breanna Koski and Joanna Duka (Facebook)

A landmark Arizona Supreme Court decision on September 16 would have been different had the court not expanded from five to seven justices in 2016.

Gov. Doug Ducey on several occasions has been accused of “packing” the state’s highest court with conservative justices. It was a criticism in 2016 when he signed the court expansion bill into law and this year when he appointed Justices James Beene and Bill Montgomery.

Ducey has now made five appointments, more than any other governor in Arizona history, and has shaped the court for possibly decades.

His choices for justices on the court and the expansion certainly affected the outcome of Brush & Nib v. City of Phoenix, a case in which a split court said the First Amendment rights of two business owners outweighed a city anti-discrimination ordinance.

Ducey appointed Justices Andrew Gould and John Lopez to fill the newly created sixth and seventh seats at the end of 2016, and both of them voted in the majority, joining fellow Ducey-appointee Clint Bolick, who was appointed in 2016 before the expansion, and Gov. Jan Brewer-appointee John Pelander, who retired March 1.

Because oral arguments in Brush & Nib took place in January, Chief Justice Scott Bales, who retired in July, and Pelander still weighed in on the case.

Bales, an appointee of Gov. Janet Napolitano, voted in favor of Phoenix along with Vice Chief Justice Ann Scott Timmer, an appointee of Brewer.

Current-Chief Justice Robert Brutinel, a Brewer appointee, recused himself, but his stand-in, appellate judge Christopher Staring, sided with Bales and Timmer. Staring, who Ducey appointed to the Arizona Court of Appeals in 2015, would have been the deciding vote, had the court stayed at five members.

Thus, had Ducey and the Republican-controlled Legislature not expanded the court, the city of Phoenix would have won the case, 3-2.

The anti-discrimination ordinance was challenged by Brush & Nib owners Breanna Koski and Joanna Duka, who do not want to prepare their custom wedding invitations and other products for same-sex nuptials.

Duka and Koski are devout Christians who believe their work is inextricably related to their religious beliefs. They have said they strongly believe a marriage is meant to be between a man and a woman, and argue they cannot separate their beliefs from their work.

But in the carefully worded decision, the justices refused to give blanket protection to all businesses – including Brush & Nib – to simply turn away customers because of their sexual orientation. Gould, writing for the majority, said it leaves open the question of whether the two women could be forced to produce other products, like place cards for receptions, which do not specifically celebrate the marriage.

And it leaves in legal limbo the ability of Phoenix and other cities to enforce their ordinances that make it illegal to discriminate based on sexual orientation.

House Minority Leader Charlene Fernandez, D-Yuma,  and Senate Minority Leader David Bradley, D-Tucson, among other prominent Democrats, criticized the decision, saying it was the result of Ducey’s master plan to stack the court to ensure conservative outcomes.

“This was a narrowly crafted case that produced a narrow, limited and hopefully temporary setback for equal rights in front of Governor Ducey’s packed and politicized Supreme Court,” Fernandez said in a press release.

The court historically is unanimous in its decisions – even after the expansion – and it is especially rare for justices to land on a 4-3 split. The Brush & Nib case is one of the examples where the dissent opinion would have been the majority without Ducey’s two additional appointments.

But it’s not the only instance. A 2018 water case with a 4-3 decision also saw Lopez and Gould vote with the majority. 

In fact, since the two of them joined the court, they have been on the bench for 72 cases together, and have voted together in 71 of those. The one case where they did not agree occurred in 2017, Louis Cespedes v. State, a child abuse case where Gould authored the majority opinion, and Lopez was in the dissent.

Court explains decision to let candidate stay on ballot

Shawnna Bolick
Shawnna Bolick

A court order allowing certain people to take their address out of public records does not mean they can hide it when they run for office, the Arizona Supreme Court ruled Tuesday.

The justices, however, agreed to let it slide this one time and permit Rep. Shawnna Bolick, R-Phoenix, to seek a second term in the Arizona House even though she listed a mailing address on the spot on the nomination papers where it asks for a street address.

Chief Justice Robert Brutinel, writing for the court, said her “erroneous” entry on the papers was not done with the intent to defraud voters.

It also just so happens she is the wife of one of their colleagues.

But the justices in Tuesday’s ruling made it clear that anyone who tries this in the future — including Bolick — “flirts with disqualification.”

Clint Bolick
Clint Bolick

The decision has broader statewide implications. It could force future candidates who are legally eligible to shield addresses in some records to decide whether to list where they live — and give up their right to privacy and protection from possible harassment — or forego public office.

There is no question but that Bolick listed the street address of a private mailbox service on her nominating petitions.

She relied on the fact that husband, Clint, is a justice on the state’s high court. And Arizona law allows judges and other figures to restrict public access to residential addresses on certain records.

So what showed up on her nomination papers in the space listed for residence address was the address of 610 E. Bell Road 2-142 in Phoenix.

That drew a legal challenge.

A trial judge ruled in May that her husband’s status entitled her to make that move. That was upheld in a summary order by the four justices of the Supreme Court that heard the case — not including Clint — who said that the other address was “unlikely to have misled or confused voters” and that while she had not strictly complied with the law, she was in “substantial” compliance.

Robert Brutinel
Robert Brutinel

On Tuesday, in a full-blown eight-page opinion authored by Brutinel, the justices ratified the earlier order and further explained their belief that substantial compliance is enough — at least in this situation.

But Brutinel made it clear that he and his colleagues do not believe that’s really the way the law reads.

He specifically wrote that the law allowing candidates to shield addresses applies only to voter registration records “and does not extend to candidate filings.”

“Based on residency requirements provided in the Arizona Constitution and the applicable statutes, candidates are required to provide their actual residence address on candidates nomination documents even if they are protected voters,” Brutinel said.

And if that isn’t clear, the chief justice issued a warning of sorts. He wrote that Tuesday’s ruling based on the specific facts of this case allowing Bolick to run this year “does not mean she or any other candidate should use anything other than their actual residence address on future nomination papers and petitions.”

There was no immediate response from Bolick who is seeking her second term representing the district in north-central Phoenix about whether she will seek future office if the trade-off is having to list the address where she and her husband live.

A spokesman for Brutinel said he would have no comment about the decision and any reasons behind it beyond what is in the written opinion.

Central to the fight is a state law allowing certain individuals to ask for a court order to keep their residential addresses and those of everyone in their household off of voter registration records.

The ever-expanding list includes police officers and spouses, judges, prosecutors, public defenders, correctional officers, members of the Board of Executive Clemency, National Guard members who are supporting a law enforcement agency, individuals who have orders of protection and certain employees of child safety and adult protective services who have direct contact with families.

In agreeing to let Bolick remain on the ballot, Brutinel said the private mail box listed is in the same state, county, legislative district, city and zip code as where she actually lives. That, he said, shows there was no effort to mislead voters.

And Brutinel said that Bolick “relied, erroneously” on the court order allowing her to shield her address in certain public records as a reason not to list it on her nominating papers.

The chief justice also pointed out that Bolick used the same mailing address in her successful 2018 bid and, more to the point, that no one had challenged that.

“There is no evidence to suggest she had prior knowledge of the error or intended to violate the statute,” he said, which is why the justices decided she was in “substantial” compliance with the law and could remain on the ballot, at least for this year.

Bolick is seeking to hang on to one of the two Legislative District 20 House seats she holds along with Rep. Anthony Kern, R-Glendale. The Democrats are offering only Judy Schwiebert in a bid to unseat one of them.

Court finds fed law supersedes Arizona ‘balance billing’ law

Close up view on conceptual keyboard - Law symbol (blue key)

Hospitals that accept payment from the state’s Medicaid program can’t then try to collect more by going after money owed to the patient, the Arizona Supreme Court ruled Monday.

In a unanimous ruling, the justices voided sections of state law that have, until now, allowed hospitals to impose financial liens on others when the amount paid by the Arizona Health Care Cost Containment System, AHCCCS, doesn’t cover what they say are the full bill charges. Justice Clint Bolick, who wrote the opinion, said the practice – and the Arizona laws that have allowed it – violate federal law.

The ruling is most immediately a victory for about 50 patients who found that hospitals that provided their care were not trying to seize money due to the patients.

Attorney Lance Entrekin said that can include a situation where the patient was in an automobile accident and was trying to collect money from the driver of the other vehicle.

In some cases the patients agreed to pay a negotiated amount in exchange for the hospital releasing the lien. Other cases involved those who simply challenged the liens.

But Monday’s decision now sets a binding precedent, forever precluding the practice.

Central to the case is AHCCCS, which provides free or low-cost medical coverage for those of limited income. The medical providers that have contracts with AHCCCS agreed to accept what it offers in payments.

There is no question but that hospitals cannot engage in “balance billing,” going after the patient directly for what AHCCCS does not pay.

But the hospitals argued that state law has specifically allowed to place a lien – essentially a claim – on any funds that may be due the patient from someone who was responsible for causing that person’s injury.

Bolick acknowledged the Arizona law. But he said, in essence, that there was a higher power to consider: federal law.

He said that law expressly provides that state Medicaid programs must limit their participation to provide who accepts the amounts provided by the agency as “payment in full.”

“The hospitals’ liens are designed to secure payment from third parties in excess of the Medicaid reimbursement,” Bolick wrote. “Such use of the lien statutes cannot coexist with the federal prohibition against balance billing, and therefore the statutes so applied are pre-empted.”

Attorney Richard Burnham who represents the nearly three dozen hospitals that had been sued, said his clients have not been pursuing the liens since a trial judge ruled against them several years ago. They had been hoping the Supreme Court would overrule that decision and allow them to reinstate the practice.

Court gives Lake last chance to prove election compromised

Lake, governor, campaign, election, Sinema, Senate
Kari Lake, who at this time was the Republican candidate for governor, speaks to supporters at a campaign event in Queen Creek on Oct. 5, 2022.  (AP Photo/Ross D. Franklin)

The state’s high court has given Kari Lake one last chance to prove that the results of the 2022 gubernatorial election should be overturned.
In an order late Wednesday, the justices tossed out virtually all the claims by the failed Republican candidate that there was misconduct in how the election was conducted. That includes her contentions that tabulators were purposely set to not read ballots cast at vote centers, that Maricopa County failed to maintain proper chain of custody on the ballots, and that her constitutional rights were violated.
The justices also said that Lake’s claim that there were 35,563 ballots added to the total count, something she raised for the first time in her appeal to the Supreme Court, is not supported by the record.

Robert Brutinel

But Chief Justice Robert Brutinel said Lake should have had a chance to argue to the trial court that Maricopa County used improper procedures to verify the signatures on early ballots. That, Lake argued, allowed votes to be counted even though the signatures did not actually match the voter’s registration record as she contends.
Maricopa County Superior Court Judge Peter Thompson had dismissed that claim out of hand.
He said Lake was on notice for months before the election the procedures that the county was using. That including matching signatures on envelopes not only with voter registration records but also with other documents the county had on file, such as deeds and other documents.
More to the point, Thompson said she chose not to challenge it before the election. And that, the judge said, barred her claim as coming too late.
Brutinel said that decision was incorrect.
He said Lake, in filing suit, was challenging not the signature-verification policies themselves – something she had known about – but “the application of the policies” by the county. And Brutinel said there was no way Lake could have challenged them before the election.
But even if Lake can prove that the county was not applying the processes properly, that still doesn’t mean the Supreme Court will entertain her claim that either she should be declared the victor over Democrat Katie Hobbs or, at the very least, that the election should be rerun.
Brutinel said Lake first needs to prove that “votes were affected in sufficient numbers to alter the election.”
Even then, the chief justice said Lake can’t simply assert what he called “an untethered assertion of uncertainty” about the results. Instead, Brutinel said, she needs to show by a “competent mathematical basis” that the outcome of the race which showed Lake lost by 17,117 votes “would plausibly have been different.”
And there’s something else.
Brutinel said Thompson is free to again throw out Lake’s claim about the signature verification process if there is some legal reason – other than that she waited too long.
A separate lawsuit was filed earlier this month challenging the process used by all Arizona counties to verify signatures on early ballot envelopes. But that claim, unlike the one filed by Lake, is prospective only, seeking not to affect the 2022 race but future elections.
Lake, in a prepared statement, said she believes Wednesday’s ruling will give her a chance to prove that county officials violated procedures that “allowed for tens of thousands of illegal ballots to be approved and counted.”
“When we verify these allegations, there will be no doubt that this election was compromised and that its results fail to meet the standard of certainty as outlined in Arizona law,” she said.
There was no immediate response, either from attorneys for Hobbs or from those representing Maricopa County which also was a defendant in the lawsuit.

Court makes statement, rules against lawmakers

Rep. Andrés Cano, D-Tucson, right, speaks with Arizona House Speaker Rusty Bowers, R-Mesa, during a vote on the Arizona budget Thursday, June 24, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

The Arizona Supreme Court on Thursday issued a broad ruling that will change forever how state budgets are adopted. 

In a 17-page ruling, the justices said the way lawmakers have been piling unrelated issues into last-minute “budget reconciliation” bills is unconstitutional. 

They voided provisions of four budget-related bills because their legally required titles did not reflect what actually was in the measures. And they separately concluded that one of the bills, with 52 sections and 30 distinct subjects, also violated a separate constitutional ban on legislation dealing with more than one topic. 

In doing so, the court reasserted its authority as the ultimate arbiter of what the other branches of government can and cannot do. 

The justices said that they — and not the legislature — determine whether an act is constitutional. And in an often strongly-worded decision, they rejected various arguments that lawmakers are entitled to wide latitude in deciding how to craft statutes and the budget. 

But the real effect of the ruling is that it finally will end how legislative leaders corral the votes for certain controversial items. And that, in turn, could empower whichever party is in the minority. 

What has happened until now is that individual lawmakers in the majority party threaten to withhold their votes for the entire budget unless they get some particular provision inserted. And often these are bills that could not get approved on their own. 

This year’s budget package is no exception. It is filled with items that either failed on their own or never even got a hearing but became must-have items for some lawmakers. 

Among the examples is a ban on the teaching of so-called “critical race theory” in public schools, a bill that never was voted on separately by either the House or Senate. But it wound up in legislation labeled  

“K-12 education; budget reconciliation.” 

That meant anyone who wanted what else was in that bill, which included changes in state aid to public schools, had to go along. 

The justices said the situation was even more pronounced in SB 1819, labeled as “Appropriating monies; relating to state budget procedures.” 

“SB 1819 contains 52 sections and spans approximately thirty distinct subjects, including matters ranging from dog racing, the lottery, voter registration, election integrity, the governor’s emergency powers, the Board of Trustees’ (of the Public Safety Personnel Retirement System) duties and powers, the definition of ‘newspaper,’ political contributions, management of the state capitol museum, and COVID-19,” wrote Justice John Lopez for the unanimous court. And that in turn forced lawmakers into an all-or-nothing situation. 

That need to “buy” votes for the budget by including policy issues package is enhanced in situations like now where Republicans have just a one-vote majority in both the House and Senate, meaning a single lawmaker can thwart desires of GOP colleagues. 

“There were a lot of things put into those budget reconciliation bills because we had so many members that said, ‘I’m not on the budget unless I get X,’ ” said Senate President Karen Fann, R-Prescott. More to the point, she said, they had leverage. 

“After 171 days and no budget passed, and we’re getting close to July 1 and the new fiscal year where departments need to be funded and everything else, yeah, we did put stuff in there,” she told Capitol Media Services. 

House Speaker Rusty Bowers, R-Mesa, said the ruling now gives him and Fann some backing for their refusal to do that. 

“It kind of helps us hopefully make the point that there are certain things you can’t do,” he told Capitol Media Services. “So, if that’s what that decision says, it’s good for me.” 

The flip side, however, is it removes a bargaining chip that leadership has had until now to get the needed majority among Republicans for the budget. 

“It’s just going to cost me more,” Bowers said. “I’m just going to have to go deal with somebody else.” 

And that could mean getting the necessary votes from Democrats who have argued repeatedly that they have not been consulted on budget items because, until now, the Republicans have not needed their votes. 

House Minority Leader Reginald Bolding, D-Laveen, said he welcomes the idea of greater Democratic influence on the annual spending package. 

“My hope is this really is an opportunity to get back to what Arizona is trying to do,” he told Capitol Media Services, pointing out that the partisan split in both the House and Senate is nearly 50-50. 

“We’ve always taken a position as a caucus that we’re 100% in favor of a bipartisan budget, a budget that includes both Democratic and Republican priorities,” he said. “We just have not seen that the governor, the speaker or the president really operate that way.” 

Fann, however, said it will still require some flexibility on the part of Democrats. 

She said GOP lawmakers made it clear last year that the budget had to include some tax cuts for them to support the spending plan. But Fann said not a single Democrat was willing to even consider the issue. 

“So that shut down those conversations,” she said, leaving GOP leadership little choice but to agree to some of the demands to put non-budget items into the package. 

“Had I had a few Democrats that would have come onboard with the budget, or even some of the budget items, when we wouldn’t have had to play Whac-A-Mole, if you will, with the other members of putting things in there that really didn’t belong in the budget,” Fann said. 

Bolding said the ruling also could curb some more radical ideas from becoming law — or at least bring them to light. 

Right now, he said, individual lawmakers are shielded from being held accountable for voting for a specific measure because it is buried in a more comprehensive budget bill. 

“Republican members who don’t support bad policy will now be forced to vote on the board for those bad policies,” Bolding said. “And we’ll see if they have the courage to vote against them — or not.” 

Thursday’s decision is also consequential for the court’s broad rejection of claims by lawmakers that they — and not the justices — get to decide whether what they do is constitutional. 

“We reject this untenable proposition,” wrote Lopez. 

“This case implicates our court’s core constitutional authority and duty to ensure that the Arizona Constitution is given full force and effect,” he said. “The responsibility of determining whether the legislature has followed constitutional mandates that expressly govern its activities is given to the courts — not the legislature.” 

Lopez said it would be one thing if a dispute is over a political issue that is beyond the ability of the court to resolve. 


Court overturns voter-approved measure to deny accused rapists bail

The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick, Ann Scott Timmer.
The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick, Ann Scott Timmer.

The state cannot deny the opportunity of accused rapists to seek release on bail even if the proof is evident before trial that the person committed the crime, the Arizona Supreme Court ruled Friday.

In a 4-3 decision, the justices overturned a 2002 voter approved state constitutional amendment which said bail must be denied when someone is accused of certain sexual offenses.

Justice Ann Scott Timmer, writing for the majority, said the U.S. Supreme Court has concluded that pretrial detention without bail is permissible only when there is a “legitimate and compelling” purpose and that the restriction is narrowly focused. She and three other justices said that means defendants are entitled to be released pending trial when there is no showing that they will be a danger to the community, despite what Arizona voters approved.

But Justice Clint Bolick, in a stinging dissent for himself and two other justices, chided his colleagues for voiding the decision by voters to keep those accused of rape locked up following their arrest.

“Sexual assault is by definition a uniquely horrific act, in which a person’s most intimate parts are violated through force, coercion, or deception,” he wrote.

Bolick also pointed out that the 2002 measure requires a judge to deny bail in these kinds of cases only when the prosecution first shows that “the proof is evident or the presumption great” that the defendant did, in fact, commit the crime. And he said that is not a huge burden, as the time someone is detained without bail “will only be temporary.”

But Timmer said that’s not the issue — or the standard.

“The question here is not whether sexual assault is a deplorable crime that endangers and dehumanizes victims,” she wrote. “It is and it does.”

What is the question, Timmer said, is whether even if there is great proof of someone’s guilt whether that person “will post an unmanageable risk of danger if released pending trial.” And she said even data cited by prosecutors about recidivism rates of convicted rapists after release from prison do not provide a basis for categorical denial of bail.

Anyway, Timmer said courts can impose restrictions on those released to protect public safety, such as requiring their movements to be monitored by global positioning system devices.

Bill Montgomery
Bill Montgomery

Maricopa County Attorney Bill Montgomery said it was wrong for the court to overturn the entire voter-approved state constitutional amendment.

“The Supreme Court has decided that some citizens’ initiatives are worth more deference than others,” he said.

Montgomery acknowledged the U.S. Supreme Court precedent on bail but said the Arizona justices are “hypersensitive to federal court rulings in this area.”

He also said if the justices believe that the facts in this case did not merit holding the defendant without bail, they could simply have said that. But instead, Montgomery said, they came back with a sweeping decision that will affect all future cases.

Friday’s ruling involves Guy Goodman who was charged last year with sexually assaulting a victim in 2010.

A police officer testified that Goodwin, a guest in the victim’s home after a night of socializing, touched her while she was sleeping and without her consent. The officer also said Goodman, when confronted with DNA evidence, confirmed digital penetration.

At a pre-trial hearing, Kevin Wein, a Maricopa County court commissioner, said while there was evidence that Goodman committed the offense prosecutors had failed to show that he poses a “substantial danger to other persons or the community.” And at least part of that was based on the fact there was no evidence he had committed similar crimes in the seven previous years or threatened the victim.

Instead, the commissioner set bail at $70,000, required electronic monitoring of his movements, and imposed other conditions like not possessing any weapons.

Last year The Court of Appeals overturned that decision, leading to Friday’s Supreme Court review.

Timmer said one problem with the 2002 ballot measure is it does not provide any procedures to determine whether someone charged with rape would pose a danger if allowed out on bail.

“Second, nothing shows that persons charged with sexual assault, or even a significant number, would likely commit another sexual assault or otherwise dangerous crime pending trial if released on bail,” she said, even while acknowledging it would be difficult to prove that.

What prosecutors did provide, Timmer said, are recidivism rates among sex offenders. But she brushed these aside as they concern a wide variety of sex crimes beyond rape.

About the closest meaningful data, she said, was a report that 5.6 percent of those convicted of rape reoffend within five years after release from prison. And another study said that only 3 percent of rapists on bail were arrested for any other felony while awaiting trial.

Bolick was unconvinced, saying that the Arizona constitutional provision is very narrowly focused on preventing danger to the community. And he said even the U.S. Supreme Court has concluded that rapists “are likely to commit similar crimes in the future.”

Montgomery said what’s also missing from Friday’s majority ruling is any mention of the rights of victims, which is spelled out in a separate state constitutional amendment.

As it turns out, Goodman eventually pleaded guilty while this case was pending. But the court agreed to take up the issue based on the likelihood that the legal questions about the 2002 ballot measure would reoccur.

Court rules against lawmakers in single-subject dispute

The Arizona Supreme Court on Tuesday voided a ban on mask mandates in public schools and a host of other legislative changes, ruling it was illegal for lawmakers to pile them into a handful of budget bills. 

Without comment, the judges rejected arguments by Assistant Attorney General Beau Roysden that there’s nothing inherently wrong with the process that lawmakers have used for years to put policy changes, like whether schools can mandate masks for staff and students, into bills that are labeled only as relating to the budget. 

Also now voided are a host of other measures, ranging from a prohibition against colleges requiring vaccinations and how to teach about race in public schools to the kind of paper that counties must use for ballots and stripping Secretary of State Katie Hobbs of her powers to defend state election laws. 

In upholding a lower court ruling, the justices also slapped down arguments by Roysden that the legislature alone decides whether what it puts in bills complies with the Arizona Constitution. Among those requirements is a mandate that all measures deal with only a single subject and that all bills have a title that informs the public of what changes they make. 

During a hearing earlier in the day, Roysden, in essence, told the justices they should butt out of legislative business. 

“It is not for the court to second guess that,” he argued. 

That did not go over well. 

Robert Brutinel

“So the single subject rule is just a suggestion?” asked Chief Justice Robert Brutinel. 

Justice William Montgomery got more specific, citing provisions in one challenged bill labeled only as dealing with “budget procedures.” 

“So how does dog racing relate to budget procedures?” he asked. 

“I think that’s the toughest question in this case,” Roysden conceded. 

But he maintained that people, in reading the title “budget procedures,” are put on notice that there may be a grab-bag of individual items in there. And that, Roysden said, is all that’s constitutionally required. 

With Tuesday’s order, the justices said that’s not the case. But they did not explain their decision, promising a full-blown ruling at some point in the future. 

That will be crucial as lawmakers, now banned from using the reconciliation bills as catch-alls, now will be looking for guidance about what they can — and cannot — do in the future. 

Senate President Karen Fann, R-Prescott, said the more immediate question is what to do about the now-voided provisions. 

“We’re going to have to go through and get a list of what was affected and how it was affected,” she said. 

One possibility, Fann said, would be a special legislative session. There, each of the provisions that the Supreme Court nullified could be reintroduced and brought up for a vote on an individual basis, avoiding the illegal practice of bunching them together. 

But it remains unclear whether each could pass on its own. 

For example, legislation spelling out how race, ethnicity and gender can be taught in public schools had failed on its own. 

It was only when that language about what lawmakers called critical race theory, was put into a reconciliation bill that it passed. That forced foes to accept the all-or-nothing package to get other provisions they wanted. 

That’s why House Minority Leader Reginald Bolding, D-Laveen, called the ruling “a win for the legislative process.” 

“It was never appropriate for the (House) speaker and the Senate president to load up the budget with unrelated and controversial policy items to mollify certain extreme members and avoid negotiating a bipartisan budget.” 

Tuesday’s ruling also is a setback for Gov. Doug Ducey who not only championed the ban on mask mandates but has denied some federal Covid relief dollars to schools that he said are not in compliance with state law. Now, with the law permanently struck, there is no excuse for him to withhold those funds. 

Gubernatorial press aide C.J. Karamargin would not answer what Ducey intends to do next about schools that impose mask mandates, saying only that the governor believes that people should be able to make their own decisions with the guidance of their doctor, “not because of some government mandate.” 

In fact, though, Tuesday’s ruling actually could cause some school districts who had balked at mask mandates because of the law to now rethink that position. 

At stake were provisions of four measures lawmakers adopted earlier this year, all under the banner of “budget reconciliation.” 

Maricopa County Superior Court Judge Katherine Cooper ruled earlier this year that none of the measures comply with that constitutional requirement that the title of each bill must reflect what changes it makes. And she said one of them — the one labeled only “budget procedures” — was so full of unrelated issues that it violated the separate requirement for all measures to deal with only a single subject. 

Roysden drew the task of convincing the high court that Cooper got it wrong. 

But it became clear, even before he said his first words, that the odds already were against him. Brutinel noted that the justices met earlier, behind closed doors, to discuss the issues. 

“I think it’s fair to say there’s some consensus about whether the statutory provisions violate the single subject rule and the title requirements of the Arizona Constitution,” he said. “I think the consensus is that they do.” 

All that left Roysden to argue that this is none of the court’s business. 

“This would be uncharted territory,” he told them. “That is a terrible idea for the court to start down this path.” 

Bill Montgomery

But Montgomery said legal precedents going back more than two centuries spell out that it is precisely the role of the judiciary to judge — and strike down — actions by other branches of government that run afoul of the constitution. And Montgomery said there certainly are questions about whether lawmakers are in compliance. 

Consider, he said, the measure labeled “K-12 budget reconciliation.” Among the provisions in that bill is that ban on schools mandating masks. 

“So how does that relate to appropriation?” Montgomery asked. 

“The legislature could say if we’re going to fund schools, we want kids to go to the schools and we think (a) mask mandate is going to deter attendance,” Roysden responded. 

“We don’t want the schools that we fund to impose these types of mandates,” he continued. “That is within the power of the legislature.” 

That line of thinking clearly didn’t convince the justices. 

Anyway, Roysden argued, no one is fooled by the title. He told the court that anyone who cares about K-12 funding would look at the title and be on notice that there might be major policy changes — like that ban on mask mandates. 

That drew a skeptical response from Brutinel. 

“We’re all supposed to understand that ‘budget reconciliation’ means ‘anything we want’ ”? he asked. 

Roysden said those in the know do understand. 

“Anybody who reads the newspaper will know,” he said. 

“I’m not going to a newspaper to decide a constitutional issue,” Montgomery shot back. 

Roopali Desai

In striking down the laws, the justices sided with attorney Roopali Desai, representing the education groups and allies who challenged the four statutes. She warned the justices against accepting the arguments that lawmakers alone get to decide what can be in budget reconciliation bills and that the courts have no role in determining whether they are complying with constitutional requirements. 

“That could lead to some very problematic results,” she said. “What’s to say that the legislature doesn’t say that about every act that they pass?” 

In voiding the statutes, the justices also rejected Roysden’s backup argument that if they were going to find the practice of budget reconciliation bills illegal they should make their ruling prospective. He said there was no way for lawmakers to know that what they were doing was unconstitutional. 

That would have allowed the challenged provisions to take effect. 

But Desai countered — and the justices apparently agreed — that legislators have been on notice since at least 2003 when the Supreme Court found fault with a similar process 

 Editor’s note: This story has been revised to include comments from Senate President Karen Fann, Rep. Reginald Bolding, and Ducey spokesman C.J. Karamargin. 




Court rules ballot measures can’t use online signature gathering

The Arizona Supreme Court from left are James Beene, Andrew Gould, Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery.
The Arizona Supreme Court from left are James Beene, Andrew Gould, Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery.

Arizona groups still trying to put a measure on the November ballot are going to have to try to get needed signatures the old fashioned face-to-face way despite the COVID-19 outbreak.

In a brief order Wednesday, the Arizona Supreme Court rebuffed pleas by several organizations to allow them to use an existing online signature-gathering system available to candidates. And the court, in its 6-1 order, was not swayed by the fact that the plea was for the special permission for this year only because of the pandemic.

The court gave no reason for its decision.

But Attorney General Mark Brnovich, whose office argued against allowing the change, said the justices could not provide the relief sought.

Mark Brnovich
Mark Brnovich

“Arizona has had a provision in its constitution since statehood that provides that signatures in the initiative process have to be done by an actual human being,” he told Capitol Media Services.

The online E-Qual system, by definition, has no circulators, with supporters “signing” online petitions by providing identifying information through a web site maintained by the Secretary of State’s Office.

Only Justice Ann Scott Timmer voted to grant the request.

Wednesday’s action may seal the fate of initiative drives that had not already collected sufficient signatures by the middle of March when the virus erupted and Gov. Doug Ducey closed many businesses and directed Arizonans to stay home. A similar request was rebuffed by a federal judge, a decision upheld by the 9th Circuit Court of Appeals.

That leaves the question of what will be on the ballot for voters to consider.

One measure that appears to have at least the bare minimum 237,645 signatures needed is the Smart and Safe Arizona Act which seeks to legalize the recreational use of marijuana for adults. Spokeswoman Stacy Pearson said circulators already have more than 300,000, enough to provide a margin should some signatures turn out to be invalid and there are challenges made to other petitions.

Less clear are the fates of two other measures.

One would put a 3.5 percent surcharge on taxable income above $250,000 for individuals and $500,000 for couples to raise about $940 million a year for public education. The other would allow judges to impose shorter prison sentences than now required under “truth in sentencing” laws and permit inmates sentenced for non-dangerous offenses to be released after serving 50 percent of their time, versus the current 85 percent.

Pearson, who represents both, said the signature gathering had continued through the governor’s stay-at-home order. She said circulators put the petitions on a clipboard, stepped back, let the person sign it in their presence, and then picked it up.

She said while neither currently has gathered sufficient signatures, the deadline to file petitions is not until July 2. And Ducey just this week announced he was lifting his stay-at-home order.

Other proposals, though, are dead.

That includes the Save Our Schools Act which sought to ask voters to limit the number of vouchers of state tax dollars that parents can use to send their children to private and parochial schools.

It would have prohibited the state from issuing vouchers to more than 1 percent of total children enrolled in public schools. With about 1.1 million students in traditional district and charter schools, that would have set the cap at about 11,000.

“We had a robust start and, had that continued, we would have been fine,” said Dawn Penich-Thacker, one of the organizers. She also said the group did not have a lot of money to hire paid circulators.

“Our own network is passionate about the issue,” Penich-Thacker said. “But they’re not comfortable going door to door, not social distancing, and we’re not going to ask them to do that.”

Also dead is a proposal that was being pushed by the National Credit Alliance to overturn virtually all of the laws that now limit annual interest charges on loans to 36 percent a year. Sean Noble, who was managing the campaign for the lenders, had called it a “stand against socialism,” arguing that the question of interest rates should be a free-market decision.

Noble said the issue is not dead, envisioning a similar effort for the 2022 ballot.

There never was any legal dispute but that Arizona law requires initiative petitions to be signed in the presence of the circulator.

But attorney Roopali Desai pointed out that state lawmakers have allowed themselves and other political candidates to gather their signatures online. Desai, representing four separate initiative campaigns, argued that the constitutional right of Arizonans to propose their own laws and constitutional amendments entitles people to that same access.

If nothing else, Desai said that the “current exigencies” of the virus and the governor’s orders should allow initiative organizers to have access to that system, at least for this year.

Brnovich said that’s not a decision for courts to make.

“The constitution is very clear on this,” he said. “If petitioners don’t like what the constitution says they need to work on changing the constitution.”

Secretary of State Katie Hobbs, a Democrat, opted not to oppose the effort to use the E-Qual system, calling it a “reasonable request” in light of the pandemic. Brnovich, a Republican, criticized that move.

“I’m a big believer that when you’re elected to a statewide office you have to fulfill your duties and responsibilities,” he said. “It is a little head-scratching when the state’s chief election officer is consistently unwilling to defend state election laws.”

Desai wasn’t the only one seeking special relief for initiative circulators this year. Attorney Jim Barton made similar arguments to U.S. District Court Judge Dominic Lanza, a President Trump nominee, in seeking federal court relief.

In a ruling last month, Lanza acknowledged that the pandemic “is currently wreaking havoc” on the ability of initiative organizers to get signatures. But he said it is not making it impossible, pointing out that some groups may already have qualified.

More significant, he accepted arguments by Brnovich that the failure to get the signatures may be at least partly the fault of organizers. He said the two committees suing in his court didn’t start organizing and gathering signatures until the second half of last year while other groups began their operations right after the 2018 election.

Finally, Lanza said it is possible that the conditions of the pandemic will abate ahead of the July 2 deadline.

Court rules Prop 208 surcharge can stay – for now

Judges chair in court room

The Arizona Supreme Court on August 19 ruled the income tax surcharge on the wealthy can remain, at least for the time being. 

But it may be legally impossible to actually get any of those dollars into the classroom, which was the intent of the sponsors of Proposition 208. 

The justices rejected arguments by supporters of the initiative that the money that would be raised – estimated at $827 million a year – is a “grant” to schools. That would have exempted the revenues from a constitutional limit on how much the state can spend overall on education. 

But Chief Justice Robert Brutinel said that doesn’t end the matter. 

“Because we cannot determine at this preliminary stage of the case the extent to which, if any, such funding will exceed the constitutional expenditure limitation, we decline to enjoin the imposition of the tax,” he wrote. Instead, the justices sent the case back to the trial court. 

“If the trial court finds that the tax revenues allocated will not exceed the expenditure limit, there is no present constitutional violation and Prop 208 stands,” Brutinel said. 

“However, if the trial court finds that (the law) will result in the accumulation of money that cannot be spent without violating the expenditure limit, it must declare Prop 208 unconstitutional and enjoin its operation,” he continued. 

That appears to be a likely outcome. 

The expenditure limit, enacted by voters in 1980, uses 1979 figures as a baseline, adjusted for inflation and student growth. 

Kathy Hoffman, the state school superintendent, said that limit for the just-ended fiscal year was $6.31 billion. At the same time, the total expenses that fall under that cap were $6.16 billion. 

Brutinel said that leaves just a $144.2 million gap between current spending and the limit. 

“Thus, if the expenditure limit remains at current levels, Prop 208’s projected $827 million in revenues will far outpace its permissible spending,” he said. 

And that, Brutinel said, presents a legal problem, particularly as Proposition 208 says any money raised can be used only for the purposes stated. 

“That leaves Prop 208 with no statutory authority to spend approximately 85% of the funds raised by the tax,” he said. Brutinel said he and his colleagues cannot approve a statute that results in taxes being collected and simply “impounded with no prospect of being spent or refunded.” 

And he said that isn’t acceptable. 

He noted Proposition 208 was crafted to impose a 3.5% income surcharge on taxable income of more than $250,000 for individuals and $500,000 for married couples filing jointly, all to raise additional dollars for K-12 education. 

Half of whatever comes in is earmarked for grants to hire new teachers and classroom support personnel as well as increasing the salaries of those already hired. 

And 25% is for student support personnel, with 10% earmarked to help retain teachers in the classroom, 12% for career and technical education, and the balance into a fund to help pay the college tuition of those who go into teaching. 

It was approved by a margin of 51.7%. 

“The stated purpose of Prop 208 was to tax high-income individuals to raise revenue that would be directly provided to school districts based on ‘years of underfunding by the legislature,’ ” Brutinel said, quoting proponents. 

“Given that the tax increase was not itself the measure’s objective, but rather how its objectives would be achieved, leaving the taxing provision in place without the allocation provision is simply not rational,” he continued. “Collecting taxes that cannot be spent does little or nothing to provide increased support for school districts.” 

The final word now is up to Maricopa County Superior Court Judge John Hannah who, having previously upheld the legality of Prop. 208, is directed to see if the funds can be spent. 

The Supreme Court ruling drew praise from Danny Seiden, president of the Arizona Chamber of Commerce and Industry. 

It was his organization that tried first to keep Prop. 208 off the ballot and then, unsuccessful there, sought to convince voters to reject it. And it was his organization that, along with Republican lawmakers, mounted the post-election legal challenge.   

“We are gratified that the Arizona Supreme Court affirmed that out-of-state special interest groups can’t make an end-run around our state constitution through the passage of a regular statute,” he said in a prepared statement, a reference to the lion’s share of the funding coming from the National Education Association and Stand for Children. “They’d have to instead amend the Arizona Constitution, which the proponents failed to do.” 

But David Lujan, one of the organizers of the initiative, said he was disappointed that the justices essentially punted the issue to Hannah. But he said there may still be options to save the tax and the funding.

Lujan pointed out that lawmakers are empowered to override that constitutional spending limit. And he said there will be pressure on them to do that next year because an exemption from that limit fr a previous ballot measure will expire.

Thursday’s ruling wasn’t a total victory for the business interests and their GOP allies. 

The court rejected their arguments that voters lack the legal authority to impose that income tax surcharge. Opponents of Proposition 208 had argued only the legislature can do that. 

And the justices were no more impressed by their contention that even if voters can raise their own taxes, such measures have to be approved by a two-thirds margin, which this did not get. Brutinel said that restriction applies only to the legislature itself. 

While the tax officially took effect at the beginning of the year, it is unlikely that much, if any, already has been collected. That’s because most people don’t pay their 2021 income taxes until April 2022. 

And while high-income earners are supposed to make payments of “estimated taxes” throughout the year, there is no penalty if they make the same payments as the prior year – before Proposition 208 took effect. 

Editor’s note: This story has been revised to include more information than the original version. 


Court rules public schools not required to protect children off campus

Judges chair in court room
Judges chair in court room

Schools can’t be held accountable for violent incidents between students that occur off campus, the Arizona Supreme Court ruled Friday.

The justices rejected claims by Diannah Dinsmoor that the Deer Valley Unified School District was liable for the 2014 shooting death of her daughter, Ana, who was killed by a fellow student identified only as Matthew.

Dinsmoor does not dispute that the shooting — Matthew also killed himself — occurred off campus. But she said that school officials were aware that the pair had been dating, that Ana had planned to meet Matthew that day and that Matthew had been violent with another ex-girlfriend.

And Justice Ann Scott Timmer, writing for the unanimous court, acknowledged that there is a “special relationship” between a school and its students that can make them responsible.

“But once students leave the school’s control. the special relationship ends, and students are simultaneously released to their parents’ or guardians’ full custodial care,” she wrote. “At that point, the school is relieved of any duty to affirmatively protect students from any hazards they encounter.”

Timmer acknowledged there can be exceptions.

For example, she said, a school can be sued if a child is injured because of the decision to place a bus stop on a heavily traveled street, subjecting the student to an unreasonable risk of harm. Similarly, Timmer said if there is an active shooter in the neighborhood, a school can be liable for allowing students to leave the building.

But none of that, she said, applies here.

According to court records, the somewhat complicated situation involves, Matthew, Ana and Raven, with the boy apparently playing the girls off against each other.

At one point, Ana said that Matthew had threatened Raven, something she brought to the attention of Kimberly Heinz, the vice principal at the school and, eventually, to the off-duty police officer who worked at the school. The school saw no threat to Ana but did put a safety plan in place for Raven.

Heinz and the police officer were aware that Ana was going to meet with Matthew after school. And while the officer counseled against it, they took no action.

Ana went to her friend’s house to meet Matthew where he shot and killed her and then himself.

While a trial judge threw out the resultant lawsuit, the Court of Appeals said that “special relationship” between the school and the student opened the door for liability.

That led to Friday’s Supreme Court ruling.

“People do not generally have a duty to protect others from harm,” Timmer wrote. “Nevertheless, the school-student relationship imposes an affirmative duty on schools to protect students from unreasonable harm.”

But that, she said, has limits. And Timmer said those are pretty much defined by geography.

The justice said that there are things which make that special relationship exist on school grounds. That creates a situation where the school “supervises and controls students and their environment, enabling it to identify and eliminate risks.”

Timmer said all that pretty much disappears once the student goes off campus.

“The key consideration is whether a known and tangible risk of harm arose that endangered the student while under the school’s custody and control,” she wrote. “In such scenarios, students are deprived of the protection of their parent, and the school has an affirmative duty to protect them from such risks until they are safely released from the school’s custody and control.”


Court rules state must ask Congress to tap trust fund for schools

Gov. Doug Ducey or whoever succeeds him can’t conduct a future financial raid on a school trust fund account without first getting congressional approval, a judge has ruled. 

In a decision published Tuesday, Maricopa County Superior Court Judge John Hannah acknowledged that Congress did approve — belatedly — the 2016 measure pushed by Ducey to tap the trust to provide more immediate cash to fund K-12 schools. That resolved earlier litigation about the power of the state to change the funding formula without Congress first amending the Enabling Act that allowed Arizona to become a state and gave it lands it holds in trust for schools. 

But Hannah said those extra dollars run out in 2025. And legislative budget staffers estimate that will cut state aid to schools at that point by more than $237 million a year. 

What that means, the judge said, is that there “probably will be another attempt to change the distribution formula, relatively soon.” 

“And that effort probably will be undertaken without congressional approval, unless there is a court order that says the Enabling Act requires consent,” Hannah said. 

Now he is issuing such an order. 

Gubernatorial press aide C.J. Karamargin expressed disappointment. 

“Gov. Ducey does not want a future governor to be bound by judicial overreach,” he said. “And, in this case, that seems to be what’s going on.” 

But Karamargin said the governor and his legal staff were still reviewing the ruling on Tuesday before deciding whether to appeal. 

Gov. Doug Ducey( AP Photo/Ross D. Franklin, Pool, File)

Proposition 123 was Ducey’s plan to deal with a 2013 Arizona Supreme Court ruling that the state had ignored a 2000 voter-approved mandate to increase state aid to schools annually to keep pace with inflation. 

Ducey, who took office in 2015, declined to increase taxes to comply with that ruling. Instead he came up with a plan to tap into a special trust funds that consists of the money the state earns from the sale and lease of about 10 million acres of land Arizona was given by the federal government when it became a state. 

About eight million acres remain. 

Under normal circumstances, the beneficiaries of the trust — in this case, public schools — would get 2.5% of what is there. 

Ducey’s proposal, approved by voters at a special election in 2016 by a 51-49% margin, boosted that to 6.9% in a move the governor said would funnel an extra $3.5 billion into schools over a 10-year period. 

Michael Pierce (Photo by Carmen Forman/Arizona Capitol Times)

Phoenix resident Michael Pierce sued, contending that any change in the distribution required Congress to first amend the Enabling Act. There also was the fact that, in boosting withdrawals through 2024, it would leave less in the trust at that point than if the formula were not changed. 

Ducey disagreed. 

But facing litigation, he eventually did get congressional approval. And once that happened, the 9th Circuit Court of Appeals dismissed the case as moot. 

That, however, still leaves the question of what happens when the extra money runs out. 

Attorneys for the governor told Hannah there is no reason for him to consider that issue, at least not now. They said Pierce’s claim “is premised on a long line of ‘what ifs,’ which might occur at some future date that could be decades from now — or might never happen.” 

That argument actually worked in an earlier case where the 9th Circuit, citing that belated congressional action, concluded there was nothing more to litigate about Proposition 123. 

But Hannah agreed with Andrew Jacob, attorney for Pierce, that the governor’s argument misses the larger point. 

The judge said it is true that the original challenged conduct — Ducey proceeding with the fund transfers without congressional approval — did cease when federal lawmakers acted. But he said a claim becomes moot “only if the relevant events make it absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” 

And that, Hannah said, is not the case here. 

“The facts here do not clearly show that Arizona state officials are unlikely to try again to change the distribution formula without congressional consent,” the judge wrote. 

John Hannah

In fact, Hannah said, the reverse may be a more realistic scenario. 

He said the Arizona Constitution makes it “very difficult” to raise taxes to make up for the lost revenues, given that it would take a two-thirds vote of both the House and Senate as well as gubernatorial consent. That, said Hannah, leaves a future version of Proposition 123 — and its increase in taking more money from the school trust fund — as “the most obvious alternative.” 

“Here the governor has demonstrated power to determine whether the state of Arizona seeks and obtains congressional approval for changes to the School Trust Fund distribution formula,” the judge wrote. More to the point, Hannah said, the evidence shows that the only reason Ducey eventually went and sought congressional approval was to undermine the original federal court lawsuit. 

“The agreed-upon facts demonstrate a real possibility that the same thing will happen again,” Hannah wrote. “Under these circumstances, it would be unfair to the plaintiffs, and a substantial waste of judicial resources, to dismiss this case as moot and force the plaintiff to start over.” 

Ducey’s reaction to the latest ruling pales in comparison to the blast the governor lobbed at a federal judge who had reached a similar conclusion two years ago about approving the financial maneuver without first getting congressional blessing. 

“Judge (Neil) Wake puts on a robe in the morning and thinks he’s God,” the governor said at the time. “But he’s not.” 

And it got even more personal. 

“I want to tell you what everyone down at the courthouse needs to know,” Ducey said. 

“It’s time for Judge Wake to retire,” the governor continued. “He’s an embarrassment to the legal community.” 

As a sitting judge, Wake could not comment. But Patrick Ptak, Karamargin’s predecessor, said at the time that it was not unfair for Ducey to attack a judge who is legally precluded from responding to personal attacks. 

Wake got to the federal bench in 2004 after being nominated by Republican President George W. Bush and with the recommendation of the state’s two GOP senators, John McCain and Jon Kyl. 

Hannah was tapped for the state bench in 2005 by Democratic Gov. Janet Napolitano.  


Court ruling validates rights in same-sex marriages, will have ripple effect

Scott Bales, chief justice of the Arizona Supreme Court. (Photo by Ryan Cook/RJ Cook Photography)
Scott Bales, chief justice of the Arizona Supreme Court. (Photo by Ryan Cook/RJ Cook Photography)

Saying all marriages are created equal, the Arizona Supreme Court ruled Tuesday that the spouse of a gay woman who has given birth is entitled to the same parental rights as if she had been a man.

Chief Justice Scott Bales, writing for the majority, acknowledged that Arizona laws dealing with presumption of paternity use terms like “father,” “he” and “man.” Those laws say the husband in a marriage is presumed to be the parent of any child born within 10 months of a marriage.

He also conceded that Suzan McLaughlin could not possibly be biologically related to the child born in 2010 to Kimberly McLaughlin, to whom she was legally married at the time.

But Bales said all that is irrelevant in the wake of the historic 2015 U.S. Supreme Court ruling declaring that states have no right to limit marriage to one man and one woman. More to the point, he said, the nation’s high court concluded that same-sex couples are entitled to civil marriage “on the same terms and conditions as opposite-sex couples.”

Today’s ruling is a broad victory in the rights of gays — and not just involving questions of divorce and child custody. It also undermines arguments by some foes of same-sex marriage that the 2015 ruling permits only the marriage of same-sex couples.

Cathi Herrod
Cathi Herrod

Cathi Herrod, president of the Center for Arizona Policy has contended that ruling does not disturb other Arizona laws like those giving preference in adoption to a heterosexual married couple.

And Maricopa County Attorney Bill Montgomery refused in 2015 to provide legal help to married gay couples despite a state law which mandated that county attorneys provide free legal aid to couples seeking to adopt. His press aide argued at the time that a court ruling voiding Arizona’s gay-marriage law — which occurred even before the U.S. Supreme Court ruling — applies to marriage, not adoption.

But Bales said he and his colleagues believe what the U.S. Supreme Court decided “will require a reassessment of various state statutes, rules, and regulations to the extent they deny same-sex spouses all of the benefits afforded opposite-sex spouses.” He said that includes everything from taxation, property rights and hospital access to campaign finance rules — and adoption rights.

“It would be inconsistent with (the 2015 ruling) to conclude that same-sex couples can legally marry but states can deny them the same benefits of marriage afforded opposite-sex couples,” he wrote.

Bales said that could occur on a piecemeal basis, as those denied those rights file suit. But he said the better alternatives would be for the governor and Arizona lawmakers to comb through the rules and laws and eliminate those that discriminate.

“Like the judiciary, the legislative and executive branches are obliged to follow the United States Constitution,” he said. “Through legislative enactments and rulemaking, our coordinate branches of government can forestall unnecessary litigation and help ensure that Arizona law guarantees same-sex spouses the dignity and equality the Constitution requires — namely, the same benefits afforded couples in opposite-sex marriages.”

Kimberly and Suzan were legally married in 2008 in California.

Court records show the couple agreed to have a child through artificial insemination using an anonymous sperm donor. Kimberly became pregnant in 2010.

Before the child was born, the couple moved to Tucson, entered into a joint parenting agreement and executed mirror wills, declaring they were to be equal parents to the child. After the 2011 birth, Suzan stayed home and cared for the boy while Kimberly worked as a physician.

When the boy was nearly two, Kimberly moved out, taking the boy with her and cutting off his contact with Suzan.

Suzan filed for divorce in 2013 as well as legal papers for parenting time. When a trial judge agreed to have the case proceed, Kimberly appealed, pointing out the Arizona law about presumptions of paternity specifically apply only to husbands in opposite-sex marriage.

Bales said applying the law in that fashion in the wake of the U.S. Supreme Court decision violates the Equal Protection Amendment of the U.S. Constitution.

“Describing marriage as ‘a keystone of our social order,’ the court noted that states have ‘made marriage the basis for an expanding list of governmental rights, benefits and responsibilities,’ such as ‘child custody, support, and visitation rules,’ ” Bales wrote, quoting from the 2015 ruling.

“Denying same-sex couples the same legal treatment in marriage and all the benefits afforded opposite-sex couples works a grave and continuing harm on gays and lesbians in various ways — demeaning them, humiliating and stigmatizing their children and family units, and teaching society that they are inferior in important respects,” the Arizona chief justice said.

Herrod, whose organization pushed through Arizona’s now-overturned 2008 voter-approved ban on same-sex marriage, acknowledged Tuesday that the U.S. Supreme Court earlier this year extended the scope of the original 2015 ruling to say that same-sex couples are entitled to “the constellation of benefits that the states have linked to marriage.” That, she said, preordained Tuesday’s Arizona Supreme Court decision.

But Herrod said voters should not hold their breath waiting for lawmakers to undo any discriminatory laws.

“My assumption is a majority of the Arizona Legislature disagrees with the U.S. Supreme Court on this issue,” she said. Anyway, Herrod said, it’s not necessary for lawmakers to have to go on the record on politically sensitive issue of whether Arizona should repeal those laws.

“The court effectively just did that,” she said.

Montgomery, however, suggested laws on giving heterosexual couples preference in adopting children may be legally defensible given “the biological diversity necessary to create them in the first instance.” And he said all the discussion to this point has been on the rights of adults in the adoption process.

“I wonder if there may be future litigation on the rights of children,” he said.

Today’s ruling does not preclude a court from disturbing the presumption that the spouse of a woman who gives birth is the mother. That right already exists in situations where, for example, a husband says someone else is the biological father.

Bales noted, however, that the couple agree that they intended for Kimberly to be artificially inseminated with an anonymous sperm donor and they signed an agreement declaring Suzan a ‘co-parent’ of the child. And after the boy’s birth, Suzan stayed home to care for him during the first two years of his life.

What all that means, Bales said, is Kimberly cannot now try to rebut Suzan’s claim of presumptive parentage.

Writing separately, Justice Clint Bolick said he agrees that, given the facts of this case, Suzan is entitled to be seen as the boy’s legal parent in the pending divorce case. But he declined to go along with colleagues in concluding that the paternity statute as written is unconstitutional and said there is no basis to extending its reach to same-sex marriages.

Court says misapplied law allows killers chance at parole


Some erroneous words used by judges 25 years ago could possibly result in the release of nearly 300 people who the law said should have been incarcerated for the rest of their lives.

In a ruling March 5, the Arizona Supreme Court acknowledged that a 1993 law eliminated the possibility of parole for any crimes committed after January 1, 1994. And that, legally speaking, should have resulted in Abelardo Chaparro being imprisoned for life for a murder he committed in May 1995.

Only thing is, the judge sentenced Chaparro to “life without the possibility of parole for 25 years.”

Justice James Beene, writing for the unanimous Supreme Court, said that was legally wrong.

James Beene
James Beene

But Beene pointed out that neither the prosecutor nor the defense attorney pointed that out at the time.

Now, he said, it’s too late. And what that means, Beene said, is that Chaparro is now eligible to seek parole.

Technically speaking, the Supreme Court ruling affects only Chaparro who challenged the refusal of the Department of Corrections to consider him for parole.

But in legal papers filed with the court, that agency declared there are “approximately 290 inmates that may have sentences similar to Mr. Chaparro.” And they can now use the precedent set in this case to seek their own parole eligibility.

Drew Ensign, the state’s deputy solicitor general, conceded to the court that there is no question but that the law was changed and parole was no longer an option.

“But like the proverbial tree falling in a forest, many failed to notice,” he wrote.

“Specifically, sentencing judges, prosecutors, and likely many defense attorneys all failed to account for the Legislature’s express and unequivocal abolition of parole,” Ensign said. “A few hundred times.”

Nothing in court’s order guarantees that Chaparro – or any of the other perhaps 290 affected inmates – actually will be freed. Instead, it allows them to try to convince the Board of Executive Clemency that they will be able to “remain at liberty without violating the law and that the release is in the best interests of the state.”

But they now have the ability to try to make that case.

There was no immediate response from the Department of Corrections.

The facts are not in dispute.

Abelardo Chaparro
Abelardo Chaparro

Chaparro originally was sentenced to “natural life,” which would preclude the possibility of parole. But in a subsequent order, the judge removed the word “natural” and clarifies that the sentence was “life without possibility of parole for 25 years.”

Beene rejected arguments that the trial judge failed to understand what he was doing. He pointed out that, during sentencing, the trial judge told Chaparro that there were three sentencing options: death, life in prison until death, and life without the possibility of parole for 25 years.

Both sides also agree that the sentence imposed was “illegally lenient” because it violated the 1993 law. What that means, the Attorney General’s Office argued, is that the court cannot enforce it.

Beene disagreed.

“Illegally lenient sentences are final under Arizona law absent timely appeal or post-judgment motion,” he wrote.

One was not made, Beene said, meaning “his illegally lenient sentence is final under Arizona law.”

What all that leaves is who else might get a chance at release.

In arguments to the court, Ensign said this case “arises from an unfortunate chapter in the history of the Arizona criminal justice system.”

Sentences allowing parole were imposed despite the fact the law was changed. But he argued that those sentences are legally void as contrary to “the Legislature’s explicit abolishment of parole eligibility.”

The high court disagreed, saying any challenge now comes too late.

Ensign also argued that trial judges who handed down sentences with the possibility of parole were unconstitutionally intruding on the turf of lawmakers who have the exclusive power to determine if parole is an option. But Beene said that, strictly speaking, the judges did no such thing.

“Rather than perform a legislative function, the trial court misapplied the law when it conferred parole eligibility,” he wrote.

“Therefore, the trial court did not violate separation of powers by including, albeit incorrectly, parole eligibility in its sentenced order, nor does this court do so by upholding that sentence, which the state failed to appeal,” Beene continued. “Absent a timely appeal, the illegally lenient sentence must stand.”

The Legislature has since restored the option of parole for those who were sentenced pursuant to a plea deal with such a stipulation, and that deal spelled out how many years the person would first have to serve.

Court should support jury verdicts, businesses over trial attorneys


As a conservative Republican who has dedicated my life to public service, I have always appreciated the importance of government partnering with business. I was pleased when Gov. Doug Ducey selected U-Haul International’s Tempe manufacturing and technical facility as the back-drop for his 2018 campaign kick-off. Right here in Arizona, U-Haul employs tens of thousands of hard-working Arizonans in its Phoenix corporate headquarters, manufacturing facilities, stores and local dealerships, supporting local businesses and our state’s vibrant economy.

That’s why, as chair of the House Transportation Committee, I was very disappointed when it recently came to my attention that in February 2020, the Arizona Court of Appeals overturned a jury defense verdict in favor of U-Haul, after a four-week jury trial, based solely on one sentence found in 13 pages of jury instructions.

Noel Campbell
Noel Campbell

In the lawsuit, the plaintiffs claimed that U-Haul violated Arizona law because it did not put brakes on a tow dolly. As a resident of Yavapai County, avid motorcyclist, and citizen legislator I spend a great deal of time driving. U-Haul’s tow dollies are used to tow vehicles – the front wheels of the vehicle are placed on the tow dolly and the rear wheels of the vehicle ride on the street – and can be towed either using a customer’s vehicle or a U-Haul truck. For 50 years U-Haul had reasonably relied on its testing and science that brakes were not necessary on tow dollies.

In fact, in 2018, the Arizona Legislature, in a bill first heard in the House Transportation Committee, clarified Arizona’s law and expressly stated that tow dollies do not need to have brakes. With Arizona juries, common sense prevailed. The jury in the lawsuit came to the exact same conclusion when it found in favor of U-Haul, even though the jury was never informed that the Legislature had separately clarified the law. According to the Court of Appeals, the re-trial would involve the exact same issue already presented to the first jury – whether the lack of brakes on U-Haul’s tow dolly caused the accident involved in the litigation.

I am pleased that the Arizona Chamber of Commerce & Industry, Truck Renting & Leasing Association, Arizona Association of Defense Counsel, and PLAC Product Liability Advisory Council all intend to file amicus briefs in support of the jury’s defense verdict and U-Haul. They know jury trials of this magnitude and length are costly for the citizens of the state of Arizona. First, the court’s resources and funds spent by the parties for a trial of this length are significant. Second, a jury of ten individuals already had to forgo nearly a month of their own time and their jobs to hear this case in 2018. Unless the Supreme Court steps in and reverses the Court of Appeals’ decision, this issue will be tried again, in front of another jury, on the same issue that has been decided in favor of U-Haul, at a great cost to the economy and the citizens of this state.

We must focus on growing our economy by developing policies that protect consumers and support business, while defending against those who attempt to damage our way of life, especially given the current economic climate.

Noel Campbell is chair of the Arizona House Transportation Committee, a legislator from Yavapai County, and may be reached at [email protected].

Court task force refocuses on disinformation

False advertising concept as a trust symbol of a pinocchio long nose of a liar with a pen nib tip as a metaphor for misinformation or fiction writing with 3D illustration elements.
False advertising concept as a trust symbol of a pinocchio long nose of a liar with a pen nib tip as a metaphor for misinformation or fiction writing with 3D illustration elements.

Shortly after the Arizona Supreme Court created a task force on countering disinformation in 2019, its members realized their approach was a losing battle. 

They thought they could simply counter misinformation with information. 

The task force appears to be the first of its kind, and according to task force chair and court spokesman Aaron Nash “it seems like eye rolling would be a way to characterize how a lot of people thought of it” when it initially formed in response to concerns about Russian disinformation campaigns.

Then came the pandemic, protests following the death of George Floyd and the 2020 election – and the rush of disinformation that followed. 

“It just became more and more apparent the misinformation and disinformation that was out there, everywhere,” Nash said. “It was good timing.”

Now, in its second year, the task force is focusing on helping the public recognize misinformation and disinformation and trying to re-establish or foster trust in the judiciary as a better approach than trying to counter every inaccurate statement or campaign individually. 

“There is some degree of sort of opaqueness to the whole system, and that opaqueness makes for a very easy target for disinformation,” said task force member and research professor Scott Ruston, who also directs ASU’s Center on Narrative, Disinformation and Strategic Influence.

Ruston felt the task force’s recommendation to increase civic engagement is especially important. He said if credible information doesn’t come from institutions, the vacuum created is filled with rumors, hearsay and disinformation.

“If the courts aren’t saying what’s happening and explaining why judges make rulings in particular ways, then that’s fertile ground for people to basically lie about it and make claims that are untrue,” Ruston said. “And not only are they untrue, but they are malicious.”

One of the conclusions Ruston and other scholars have drawn in studying disinformation is that disinformation actors seek out social wedge issues around which they can erode the public’s faith in political institutions, whether that’s the judiciary, the legislature, the education system, the press or the executive branch.

To start filling the vacuum, the task force plans to give a makeover to the Our Courts Arizona program, which, up until now, has sent out retired and current judges to provide refresher sessions for adult groups on everything from how Arizona judges decide cases to the Bill of Rights. 

The task force hopes to get that type of information to younger people and is looking to create age-appropriate presentations for kindergarten through PhD levels, “from the real basic ‘three branches of government’ stuff to more philosophical policy type issues and where policy ends and rules and procedures begin,” Nash said.

The task force also wants to promote other existing civics education programs to more teachers and school officials. 

Along with its educational efforts and other recommendations, the task force is working with courts across Arizona on accessible websites and branding and on a playbook of how to respond to common misinformation or disinformation attacks quickly.

The National Center for State Courts laid the groundwork for that kind of playbook to help state courts develop rapid response plans before “any attack landed on the front steps of the courthouse,” the center’s spokesman Jesse Rutledge said.

“The big lesson that the courts need to take away and can learn from the work the Supreme Court of Arizona has undertaken here is that being prepared does take some work,” Rutledge said. 

As elections controversies landed in the courts during election disputes before, during and after the election, it underscored the need for courts to move toward real-time responses, Rutledge said.

“The days of writing a letter to the editor are well behind us,” Rutledge said. “No matter who you’re dealing with, in the world of communication, you have to be ready to respond almost instantaneously.”



Court task force to examine no-knock raids

A protester holds up a painting of Breonna Taylor during a rally on the one year anniversary of her death at Jefferson Square Park in Louisville, Ky., Saturday, March 13, 2021. (AP Photo/Timothy D. Easley)
A protester holds up a painting of Breonna Taylor during a rally on the one year anniversary of her death at Jefferson Square Park in Louisville, Ky., Saturday, March 13, 2021. (AP Photo/Timothy D. Easley)

A legislative effort to ban no-knock warrants in Arizona is destined to die in committee, but the bill’s sponsor is hopeful that a new Arizona Supreme Court task force can help address the same concerns. 

“I’m really hopeful that they’ll come up with a workable language that will prohibit no-knock warrants,” said Rep. Alma Hernadez, D-Tucson, HB2751 sponsor. “I think it will come with a lot more support, especially since it’s coming directly from the courts.” 

The court taskforce, similar to Hernandez’s proposal, came in part out of the nationwide conversations about race following the deaths of George Floyd and Breonna Taylor. Louisville police killed Taylor, 26, during a botched raid at her home in March 2020, prompting Kentucky and other states to take a hard look at no-knocks. Police targeted the home of Taylor, a medical worker, because they said they suspected she was receiving packages from a suspected drug dealer. 

 “Our chief justice (Robert Brutinel) wanted to take action,” state Supreme Court spokesman Aaron Nash said. “He said, ‘I want to get the right people in the room, and figure out — not talk — but figure out what needs to happen in Arizona, what can we put together.”

Police need special permission from courts to execute no-knock warrants, which are used to prevent the destruction of evidence or surprise potentially violent criminal suspects. Louisville police had a no-knock warrant but said they knocked and announced their presence before entering Taylor’s apartment, a claim some witnesses have disputed. No drugs were found in Taylor’s apartment.

Following meetings between the Arizona Judicial Council and the Commission on Minorities in the Judiciary, the groups’ recommendations were outlined in an Arizona State Courts’ Racial Justice Initiatives document, which also asks the courts to address how they handle jury selection, cash bail, plea bargains, disproportionate minority contact in the juvenile justice system and the diversity of the bench and court personnel.

In the administrative order establishing the task force, Brutinel said reviewing when a judge should issue a no-knock warrant and what safeguards should be in place is a timely issue.

The use of no-knock or unannounced search warrants and nighttime warrants can create a dangerous situation for both law enforcement and citizens,” Brutinel stated in the order. “In Arizona, few such warrants are issued, but when even one situation goes badly, it can seriously impact the public’s trust in the justice system.”

One of the 19 task force members, attorney Benjamin Taylor, said he thought examining the state’s no-knock procedures is beneficial to both law enforcement and the public “by making sure that those warrants are applied evenly and applied to only extreme circumstances that require the most violent circumstances.” 

“Having Arizona be on the forefront of having a task force, hopefully, other states throughout the nation and their Supreme Courts will form task forces because this is a bigger issue,” Taylor said. “You definitely don’t want what happened to Breonna Taylor to happen here in Arizona.”

The task force is scheduled to submit its recommendations to the court by October 21.

While Hernandez was grateful her bill got a hearing, in order to do so, it was amended in a way that detracted from her original intent of nixing no-knocks altogether by still allowing unannounced entry in certain circumstances.

“Once we got a hearing, I decided along with my caucus that it was probably best for us not to continue pushing with the amendment and to make sure that we were bringing in the rest of the community to have these conversations, rather than just basically watering down the bill,” Hernandez said.

She said she would like to see the task force’s recommendations before deciding whether to run a similar bill next session. 

“Depending on what recommendations they have from these meetings, it will be great for us as legislators to be able to take that information and say, ‘OK, this is what the courts are saying is being done or not being done, and this is what we should probably do to make that better,’” Hernandez said.

Court throws out sentence for prisoner who killed cellmate

Jasper Rushing
Jasper Rushing

The death sentence for an Arizona prisoner who killed his cellmate was thrown out Monday after the state Supreme Court concluded a judge had failed to tell jurors during the penalty phase of his trial that he was ineligible for parole.

The state’s highest court upheld the conviction of Jasper Phillip Rushing in the September 2010 attack on Shannon Palmer at the Arizona State Prison Complex-Lewis in Buckeye. But the Supreme Court is sending Rushing’s case back to Maricopa County Superior Court for a sentencing retrial.

The lower-court judge told jurors after Rushing’s conviction ai??i?? but before his sentencing phase ai??i?? that if they decided on a life sentence, then the judge would sentence him to life in prison without the possibility of release or life with the possibility of release after serving 25 years.

The same jury instruction wasn’t made during the penalty phase.

The ruling said Rushing didn’t dispute at trial that he killed Palmer. The trial instead focused on whether it was a premeditated killing.

Rushing beat Palmer and used a razor blade to cut his neck and sever his penis, authorities say.

The 40-year-old Palmer, who died on the way to the hospital, was serving a three-year sentence for a 2009 criminal damage conviction in Maricopa County.

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Court to determine whether hashish legal for medical marijuana patients

A 10 grams piece of Hashish laid next to a 20 grams piece, isolated on white background. This pieces represent the quantity of three retail units.
A 10 grams piece of Hashish laid next to a 20 grams piece.

The Arizona Supreme Court will decide whether the extracts of marijuana used to make edible products now sold to patients at state-licensed dispensaries are legal.

In a brief order Tuesday the justices said they want to hear arguments by attorneys for Rodney Jones about why his 2013 conviction for possession of illegal drugs and 2 1/2-year prison term is contrary to state law.

Robert Mandel, one of Jones’ lawyers, pointed out that his client is a medical marijuana patient, entitled by the 2010 voter-approved Arizona Medical Marijuana Act to obtain up to 2 1/2 ounces of marijuana every two weeks. Jones had a jar containing 0.05 ounces of hashish, a resin made from the plant.

In a divided ruling last year, the state Court of Appeals upheld the conviction. The majority said that law that legalized marijuana for medical purposes allows patients to possess only forms of the plant itself — flowers, leaves and seeds — and not the resin, or anything made from that.

But Mandel, in asking the high court to review the conviction, said this is about more than his client.

He pointed out that the state Department of Health Services has for years allowed — and even regulated — the sale of alternate forms of marijuana through state-regulated dispensaries. These range from candy and gummy bears to oils that can be administered to children who have been recommended medical marijuana by a doctor for issues like seizures.

In fact Will Humble, who was state health director when voters approved the law, even filed an affidavit with the Supreme Court saying that the rules he crafted, in consultation with the Attorney General’s Office, always considered that the statute allowed for alternate forms of the drug. And he dismissed the contention by Yavapai County Attorney Sheila Polk, whose office prosecuted Jones, that hashish is legally different than other marijuana extracts now used to make edibles.

In both cases, he said, it’s a preparation.

“It started with the marijuana flower and ended up with hashish,” Humble said.

The issue of the state having given its blessing to the sale of edibles prepared from extracts eventually resulted in Attorney General Mark Brnovich, whose office normally would handle the appeal to the Supreme Court, backing out of trying to get the Supreme Court to uphold Jones’ conviction. Instead he has taken the position that the justices should review the issue to provide some guidance.

That left defending the conviction to Polk who wants the justices to uphold both the rulings of the trial court and the Court of Appeals.

Polk did not immediately return a call to her office for comment.

But Brnovich aide Ryan Anderson said his boss is happy the justices have agreed to take up the case and decide whether her prosecution of Jones was correct.

“There’s enough uncertainty as to whether or not extracts are covered by the Arizona Medical Marijuana Act,” he said. “Hopefully the Supreme Court can provide some clarity, not only for patients but for law enforcement moving forward.”

No date has been set for a hearing.

Hanging in the balance is what will be allowable going forward under the 2010 law that allows those with a doctor’s recommendation to purchase marijuana from state-regulated dispensaries. At last count there were nearly 184,000 Arizonans who qualify.

In upholding the conviction, appellate Judge Jon Thompson, writing for the majority, said the law allows patients to possess “all parts” of the cannabis plant, whether growing or not, and the seeds of the plant. That verbiage, he said, also immunizes medical use of any “mixture or preparation” of marijuana.

What the law does not include, Thompson wrote, is hashish.

But Judge Kenton Jones, in his dissent, said his colleagues were drawing distinctions where he said none were intended by those who crafted the law. And he said limiting the forms of marijuana that can be used for medical purposes undermines the whole purpose of the law: to help patients.

“Different forms or delivery methods of marijuana may be more or less appropriate, depending upon the patient’s age, condition, abilities, and desired dosage,” Jones wrote. “When considered in the context of medicinal use, there is no logical reason to limit how the therapeutic compounds found in marijuana are introduced into the body.”

Court weighs whether political flamethrowers can damage 3rd parties

Wendy Rogers speaks at a 2014 fundraiser in Scottsdale. (Photo by Gage Skidmore/Flickr)

Mudslinging isn’t new to politics, but changes in technology make private citizens more susceptible to being dragged into the fray — and they should have legal recourse, the attorney for a former congressional candidate’s employer argued to the Arizona Supreme Court. 

“Whereas a politician has access to the marketplace of ideas in order to dispel falsities that may be said about them, every day average citizens don’t have that recourse,” attorney Amy Sells said. “All they have is the courts.” 

The state’s high court on Tuesday heard oral arguments in an implied defamation case against Sen. Wendy Rogers, R-Flagstaff, brought by the employer of one of her former political opponents.  

Sells represents Pamela Young, owner of the Young Agency, a modeling agency that represents models and actors, about half of whom are children. The Young Agency formerly employed former Arizona legislator Steve Smith, who ran for Congress in 2018. 

When Rogers, one of Smith’s primary opponents, ran a radio attack ad targeting Smith and his job, Sells argued Rogers defamed Young. 

Steve Smith (Photo by Gage Skidmore)

The ad’s narrator said in part that “Smith is a slimy character whose modeling agency specializes in underage girls and advertises on websites linked to sex trafficking.” 

Young sued Rogers for defamation and false light invasion of privacy. 

The modeling agency owner alleged the ads implied she “had committed or supported the commission of sex crimes.” 

Young is asking the state’s high court to weigh in on a few different issues, including whether a jury should decide whether Rogers defamed Young, whether the Court of Appeals applied the appropriate defamation test and whether under the test used by Young’s attorneys, Young would’ve had to present witness testimony to prove people would find the statement defamatory. 

Justice Clint Bolick questioned the connection between Young and the ad. 

“I am very concerned about the attenuation,” he said. “The ad does not mention Young Agency. In fact, it implies that this is Smith’s agency.” 

Sells argued that even Rogers admitted it was well known that Smith worked at the Young Agency at the time. 

“The question is whether through reasonable investigation, a person would be capable of ascertaining the identity of the agency,” Sells said, arguing it takes just one person to “easily” do that and that’s enough. 

The narrator’s ominous voice, “dungeon-like clanging in the background” and the use of “underage girls” next to “sex trafficking,” are all evidence of Rogers’ intent, Sells said. 

“There is plenty of evidence that the publisher, Rogers intended or endorsed the false defamatory meaning that the agency was engaged in sex trafficking,” Sells said. 

Rogers’ attorney Dominic Draye argued to the Arizona Supreme Court that the Court of Appeals — which overturned the lower court in a split decision in December, entering summary judgement for Rogers — made the right call.  

Draye said Rogers’ speech was protected by the First Amendment, and that the inference Young was somehow complicit in sex trafficking was absurd on its face. He also said that there was no evidence that Rogers intended to convey that “outlandish inference.” 

Judge David Weinzweig stated in the Court of Appeals opinion that reasonable listeners to the radio ad wouldn’t confuse this “unmistakable political flamethrower” in a high-profile congressional race with “a statement of objective fact, even if laced with factual grains.” 

Bolick asked Draye a question that came up throughout the litigation. 

“Can you use the term ‘specializes in underage girls’ in a sentence that does not have a damaging implication?” Bolick asked. 

Draye responded, “I actually think this one, until you read their complaint, does not suggest what they need it to.” 

Draye said the Young Agency doesn’t have evidence of damages stemming from the ad, so they need the statement in the ad to be “defamation per se” — so inflammatory and damaging, it doesn’t require proof. 

“In order to achieve that, they have to allege that Senator Rogers said that they were engaged in criminal activity,” he said. 

Young’s attorneys have tried to look at the line in total isolation, Draye said, jettisoning the rest of the advertisement and the rest of the campaign, which he argued should factor into the evaluation of the statement. 

The fact that the case is a third-party implied defamation case is important, too, Draye argued, because it opens the door for all sorts of lawsuits if a politician mentions an employer or line of work — even if, like in this case, the company isn’t directly named. 

Sells said it was very much in her client’s right to sue. 

“It is true that courts recognize the value in some level of imaginative expression or rhetorical hyperbole in our public debate, but it is simply not the law that provably false statements cannot be actionable if made in the context of an election,” Sells said. 

Draye argued that the ability even to bring this type of case against a politician will lead to self-censorship because it exposes a candidate to “ruinous personal liability” and legal costs, noting this litigation is stretching into its third year. 

“I don’t do this for free,” Draye said. 

Justice Bill Montgomery did not participate in the oral argument — when he was Maricopa County Attorney, he supported Smith during the 2018 campaign.  

 The justices did not say when they would issue a decision. 

Court: Arizona governor not required to carry out execution

death row, Hooper, execution, lethal injection, Brnovich, killings, Phoenix, Maricopa County Superior Court, Marilyn Redmond, William "Pat" Redmond, Helen Phelps, appeal, Florence, DNA, testimony


The Arizona Supreme Court ruled Wednesday that state law doesn’t require Gov. Katie Hobbs to carry out the April 6 execution of a prisoner who was convicted of murder.

The decision marks a legal victory for the newly elected Democratic governor whose office said the state isn’t currently prepared to carry out the death penalty. The high court had set the April execution date for Aaron Gunches, who fatally shot Ted Price near Mesa in 2002.

The order came after Hobbs said executions will not be carried out until Arizonans can be confident that the state isn’t violating constitutional rights when it enforces the death penalty.

execution, death penalty, Mayes, Brnovich, Gunches
This undated photo provided by the Arizona Department of Corrections, Rehabilitation and Reentry shows Aaron Brian Gunches, who was convicted of murder in the 2002 killing of Ted Price in Maricopa County,

The governor vowed two weeks ago that she wouldn’t carry out the court’s order while the state reviews death penalty protocols that she ordered because of Arizona’s history of mismanaging executions.

Lawyers for Hobbs said the department lacks staff with proper expertise and does not have a current contract for a pharmacist to compound the pentobarbital needed for an execution. They also said corrections officials are unable to find out the identity of the state’s prior compounding pharmacist, who primarily had contact with an official no longer with the department.

A top corrections leadership position critical to planning executions remains unfilled.

Corrections Director Ryan Thornell has said he was unable to find enough documentation to understand key elements of the execution process and instead has had to piece it together through conversations with employees on what might have occurred in past executions.

Hobbs maintained that while the court authorized Gunches’ execution, its order doesn’t require the state to carry it out.

Karen Price, whose brother was the victim in Gunches’ case, had asked the court to order Hobbs to carry out the execution. Colleen Clase, an attorney for Karen Price, didn’t immediately return a call seeking comment on Wednesday evening.

Gunches pleaded guilty to murdering Ted Price, who was his girlfriend’s ex-husband.

Arizona, which currently has 110 prisoners on death row, carried out three executions last year after a nearly eight-year hiatus brought on by criticism that a 2014 execution was botched and because of difficulties obtaining execution drugs.

Since then, the state has been criticized for taking too long to insert an IV for lethal injection into a condemned prisoner’s body and for denying the Arizona Republic permission to witness the three executions.

Gunches, who is not a lawyer, represented himself in November when he asked the Supreme Court to issue his execution warrant so that, he said, justice could be served and the victim’s families could get closure. In Republican Mark Brnovich’s last month as state attorney general, his office asked the court for a warrant to execute Gunches.

But Gunches then withdrew his request in early January, and newly elected Democratic Attorney General Kris Mayes later asked for the warrant to be withdrawn.

The state Supreme Court rejected Mayes’ request, saying that it must grant an execution warrant if certain appellate proceedings have concluded and that those requirements were met in Gunches’ case.

In another reversal, Gunches said in a filing that he still wants to be executed and asked to be transferred to Texas, where, he wrote, “the law is still followed and inmates can still get their sentences carried out.” Arizona’s high court denied the transfer.


Court: First Amendment trumps anti-discrimination ordinance

Brush & Nib owners Breanna Koski, left, and Joanna Duka, comment on an Arizona Supreme Court ruling Sept. 16, 2019, that said their First Amendment rights override a Phoenix anti-discrimination ordinance. (Photo by Dillon Rosenblatt/Arizona Capitol Times)
Brush & Nib owners Breanna Koski, left, and Joanna Duka, comment on an Arizona Supreme Court ruling Sept. 16, 2019, that said their First Amendment rights override a Phoenix anti-discrimination ordinance. (Photo by Dillon Rosenblatt/Arizona Capitol Times)

The Arizona Supreme Court says Phoenix cannot force owners of a business to create wedding invitations for same-sex couples.

The 4-3 decision, issued today, is nationally historic, as the U.S. Supreme Court has yet to decide on any anti-LGBT case. In the most notable instance, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the country’s highest court did not directly address whether civil rights lawsuits based on sexual identity could be an exception for religious-based businesses. 

“The enduring strength of the First Amendment is that it allows people to speak their minds and express their beliefs without government interference. But here, the City effectively cuts off Planitiffs’ right to express their beliefs about same-sex marriage by telling them what they can and cannot say,” Justice Andrew Gould wrote for the majority.

The anti-discrimination ordinance was challenged by Brush & Nib owners Breanna Koski and Joanna Duka,  who do not want to prepare their custom wedding invitations and other products for same-sex nuptials.

Duka and Koski are devout Christians who believe their work is inextricably related to their religious beliefs. They strongly believe a marriage is meant to be between a man and a woman, and argue they cannot separate their beliefs from their work.

But in the carefully worded decision, the justices refused to give blanket protection to all businesses – including Brush & Nib – to simply turn away customers because of their sexual orientation. Gould said it leaves open the question of whether the two women could be forced to produce other products, like place cards for receptions, which do not specifically celebrate the marriage.

And it leaves in legal limbo the ability of Phoenix and other cities to enforce their ordinances that make it illegal to discriminate based on sexual orientation.

The Scottsdale-based Alliance Defending Freedom represented both Brush & Nib and the Colorado bakeshop in the U.S. Supreme Court case.

Attorney Jonathan Scruggs of Alliance Defending Freedom said he didn’t think it would be possible to have a broader scope ruling and that they all were “overjoyed” with the opinion.

“If you read the opinion, it couldn’t be broader,” Scruggs said. “We were the ones who walked into court and offered the court to say you can limit this ruling just to wedding invitations. Phoenix is the one who came to court and said everything our clients create is conduct and not speech … the court rejected that argument and ruled in favor of freedom of speech and freedom of religion and that, like I said, is a great win.”

Scruggs reiterated his arguments from January about this case protecting “Atheist musicians from performing at Easter services … [or] LGBT web designers from creating websites that criticize same-sex marriage.”

Scruggs, Duka and Koski said they were happy with the ruling because they get the final call when it comes to their artwork – “Not the government.”

They said they will continue to “serve everyone.”

“While they create art for all people, they cannot create custom artwork to celebrate and promote messages they disagree with,” Scruggs said. “What matters is the message not the person.”

But Lambda Legal, a gay rights advocacy organization, which filed its own legal brief urging the justices to uphold the Phoenix ordinance, had its own take on the ruling, even limited as it might be to wedding invitations.

“It is cracking the door open for businesses to use free speech rights to pick and choose among customers,” said Jennifer Pizer of Monday’s ruling. And that precedent, she said, is troubling.

“This particular context involved an anti-gay and LGBT religious view,” Pizer explaind. “But this analysis (by the court) could just as well be used as a reason to turn away people of other faiths or other groups of people whose lives or relationships don’t conform with business owners’ religious views.”

The decision drew dissent from retired Justice Scott Bales.

“Our (federal and state) constitutions and laws do not entitle a business to discriminate among customers based on its owners’ disapproval of certain groups, even if that disapproval is based on sincerely held religious beliefs,” he wrote.

Gould and the majority, however, saw the issue through a different lens.

“The rights of free speech and free exercise (of religion), so precious to this nation since its founding, are not limited to soft murmurings behind the doors of as person’s home or church, or private conversations with like-minded friends and family,” he wrote.

“These guarantees protect the right of every American to express their beliefs in public,” Gould continued. “This includes the right to create and sell words, paintings, and art that express a person’s sincere religious beliefs.”

The business owners filed suit in 2016 seeking a legal declaration that they were not subject to a city of Phoenix ordinance that makes it illegal for any business that provides services to the public to refuse services because of a person’s legally protected status.

That ordinance includes sexual orientation in that definition, with violators subject to up to six months in jail and $2,500 fines for each violation. They argued that the law amounted to compelling them to say or produce things that were contrary to their sincerely held religious beliefs.

Both a trial judge and the Court of Appeals rejected their claims, saying that the ordinance regulates their conduct, not their speech.

The Arizona high court heard arguments Jan. 22, and it took an unusually long time to reach a final decision — nearly eight months.

In the oral arguments, justices wanted to know if the message conveyed would be different for two couples with the same names — like Pat and Terry. If the couple is same-sex or not, they wanted to know if the wedding invitations would be different.

Scruggs argued the message would be different because the same-sex invitations send a specific celebratory message that would endorse that marriage.

The studio owners argued in a lower court ruling they cannot separate their religious beliefs from their custom made artwork.

Brush & Nib sells custom stationery, including invitations for weddings and other celebratory events.

Although the Arizona Supreme Court has appointed two new justices since the arguments in January, neither Justice James Beene nor Justice Bill Montgomery – who has opposed certain LGBT rights in the past – participated in the case.

Howard Fischer of Capitol Media Services contributed to this report. 

Editor’s note: This story has been revised to include contributions from Capitol Media Services and correct the headline which erroneously said the Phoenix ordinance was found to be unconstitutional. 

Court: Juror names not public information

Gavel and scales

The public has no legal right to know the names of jurors who are hearing cases, the Arizona Court of Appeals has ruled. 

And that secrecy persists even after the trial is over. 

In a ruling that sets legal precedent, the three-judge panel rejected arguments by the publisher of an online legal affairs newsletter that any right of the public  and the media  to that information is more important than protecting the privacy of the people who serve. In fact, Judge Christopher Staring said having that information routinely made public actually could discourage people from agreeing to sit on a jury. 

“Once a juror’s name is public, with the current availability of information through the internet and other sources, a vast array of information about them is accessible  sometimes in a matter of seconds,” Staring wrote for the three-judge panel. 

“The courts should not be bound to create an incentive for others to seek out private information about jurors who have done their civic duty, thereby exposing them to risk of public embarrassment, harassment, or danger,” he continued. “Creating a presumption of disclosure for juror names would do just that.” 

But David Morgan, publisher of the Cochise County Record, said that is based on what he believes is an incorrect assumption that jurors will be harassed if their names are known. 

“Of course, for 100 years in Arizona trial jurors’ names have been public,” he said. “And there’s been no showing that, even with the new-ish, widespread use of raucous and essentially anonymous social media, juror harassment has become a problem.” 

There is a 2007 state law that specifically shields the names of jurors “unless specifically required by law or ordered by the court.” Morgan, however, said that refers to court personnel and not to what occurs in the courtroom. 

And he said that provisions in the Rules of Criminal Procedure that govern the conduct of courts and trials in Arizona are not as clear as Staring says. Morgan said they entitle a judge in a specific case to seal the information. But he said that first requires a specific reason. 

“The rule doesn’t say you must have anonymous jurors,” he said. “It says you can.” 

Morgan also said the policy  which appears not to be universally applied by all judges in all cases in Arizona  is based only on conjecture. And he said there is a lack of evidence to support it. 

“It doesn’t say, ‘In Pinal County, last year, a juror, people threw rotten eggs at his home’ or ‘screamed names at him’ or ‘called her a slut on Facebook,’ ” Morgan said of the policy. “There’s no, zero, specific evidence this is a problem.” 

Beyond that, Morgan said none of the objections and concerns trump the First Amendment right of the public to the information. And he vowed to take the issue to the Arizona Supreme Court and, if necessary, to the U.S. Supreme Court which he said has never ruled on the issue. 

The ruling stems from two criminal cases in Cochise County where judges denied access to the names of the jurors sitting on the cases. 

Staring acknowledged there are court rulings that deal with the right of the public to information about what is going on during a trial. 

“These cases, however, focused on public access to courtroom proceedings, not the disclosure of certain confidential information held by the court itself,” he wrote. And he said that juror names and other biographical information is not evidence that would be presented or part of the public proceeding. 

“Rather, it is information held by the government, which ordinarily possesses a broad spectrum of confidential information not made available to those observing court proceedings,” Staring said. And that, he said, puts it outside the scope of the First Amendment right of access. 

Staring did not dispute that it has been the practice in the past in Cochise County to make the names available. But he said what occurred there is legally irrelevant, saying the proper test is what has been going on in similar hearings throughout the entire country. 

And the judge said he and his colleagues wouldn’t be swayed even if Morgan and Terri Jo Neff, a freelancer who writes for the Record, were able to prove there was a national practice of disclosure of juror names. 

“We conclude they have not shown that logic requires such disclosure,” Staring wrote. 

The judges were similarly not swayed by arguments that making the information public  and allowing reporters and others to poke into their backgrounds  would actually be beneficial to the idea of fair trials, including ensuring that prospective jurors answer questions honestly during the screening process. 

Staring said the jury commissioner may investigate the accuracy of answers on the juror questionnaire and even get law enforcement to investigate. And then there’s the “voir dire” process where the attorneys and the judge can question them further. 

And Staring brushed aside arguments that there needs to be additional public oversight of the system, with reporters looking at things like racial bias and whether justice was served, again citing the screening process. 

“And, even the defendant in a criminal proceeding is entitled only to a fair trial, not a perfect one,” the judge wrote. “Thus, even if a reporter or other member of the public were able to procure additional information about a juror, we cannot say that such information would be likely to play a significant positive role int he proceeding.” 




Court: Mesnard lost immunity with press release

From left are J.D. Mesnard and Don Shooter
From left are J.D. Mesnard and Don Shooter

State lawmakers have absolute immunity from being sued by those who are the targets of legislative investigative reports, the Arizona Supreme Court ruled Wednesday. 

In a unanimous decision, the justices said that ousted Rep. Don Shooter has no legal right to pursue a defamation lawsuit against then-House Speaker J.D. Mesnard for publishing a report by an outside legal team that concluded the Yuma Republican was guilty of violating a “zero tolerance” policy against sexual harassment. Justice Ann Scott Timmer, writing for the court, said ordering the report and then releasing it is an official legislative function for which lawmakers are constitutionally entitled to immunity. 

But the justices said that lawmakers lose that immunity when they start publishing press releases about what they do. And that includes writing about and explaining the official report. 

“A legislator who issues a news release does not perform a legislative function but instead engages in a political act,” Timmer wrote. And she brushed aside Mesnard’s contention that the release was simply designed to explain his decision to ask the full House to expel Shooter, saying that was not necessary. 

Wednesday’s ruling clears the way for Shooter to now pursue defamation charges against Mesnard, now a member of the state Senate. 

The new decision sets some important limits on the scope of a provision of the Arizona Constitution. It says that “no member of the legislature shall be held liable in any civil or criminal prosecution for words spoken in debate.” 

This ruling makes it clear that immunity extends not just to floor debate and speeches but to other acts the court concluded “are an integral part of the deliberative and communicative processes.” And that covers not just whether to approve or reject proposals but “other matters which the Constitution places within the jurisdiction of either house.” 

And that includes determining whether to discipline or expel its members. 

But Timmer spelled out there are limits to all that. 

“Making speeches outside the legislative body, performing tasks for constituents, sending newsletters, issuing news releases, and the like are political acts which are unprotected by legislative immunity,” she wrote. Similarly, Timmer said, lawmakers have no protection when they lobby a state agency to administer a law in a particular way. 

She also rebuffed Mesnard’s claim that his decision to issue the release was within his authority as speaker. She said the release “communicates only his personal views and plans rather than those of the House.” 

The House voted 56-3 to oust Shooter after the investigative report commissioned by Mesnard found “credible evidence” that he violated anti-harassment policies with then-Rep. Michelle Ugenti-Rita, R-Scottsdale. That included making sexual comments and suggestions. 

The investigators also found incidents of harassment and improper conduct or comments involving others, including a lobbyist, a newspaper staffer, and the former publisher of the Arizona Republic. 

In filing suit, attorneys for Shooter argued that report was “materially altered” from what the investigators originally produced. 

Among the items missing from the final report, the lawsuit says, is evidence that Ugenti-Rita had herself sexually harassed a female former legislative staffer. That information, Shooter argued, could have undermined Ugenti-Rita’s credibility. 

Timmer said that claim, even if true, is legally irrelevant. She said as long as Mesnard was dealing with the report, he was acting within his legislative capacity and therefore entitled to the constitutional protections. 

He crossed the line, Timmer said, only when issuing the press release. 

The defamation case is only one of the pending legal matters involving Shooter. 

He filed a separate claim against the House saying that his rights were violated in the manner he was ejected. Shooter said he was denied due process, pointing out that the process did not follow the usual procedures, like first having an Ethics Committee investigation where he could present witnesses and evidence of his own. 

A trial judge threw the case out, concluding legislative chambers have an absolute constitutional right to decide how to deal with their members. That case now awaits a ruling from the 9th Circuit Court of Appeals. 



Covid, unrest affect look, feel of legislative session

Supporters of President Donald Trump gather to protest at the Arizona Capitol, Wednesday, Jan. 6, 2021, in Phoenix. (AP Photo/Ross D. Franklin)
Supporters of President Donald Trump gather to protest at the Arizona Capitol, Wednesday, Jan. 6, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

The 2021 legislative session will begin January 11 in an exceedingly unusual fashion, with sharp limits on public access and increased security left over from post-election unrest.

Double rows of chain-link fencing now surround the Capitol complex, following massive protests on January 6 that resulted in a cracked window at the old Capitol Building. New security measures have already been put in place for the Executive Tower, which houses the offices of the governor and secretary of state, to limit access into the building for everyone. An Arizona Department of Public Safety spokesman said they monitored the “stop the steal” protest rally at the Capitol. 

The Department of Administration, however, has already been leading an effort to beef up security measures – mostly for the protection of Gov. Doug Ducey and Secretary of State Katie Hobbs, who’ve been dealing with their own threats and harassment stemming from the November election. 

Nobody will have access to the basement, seventh, eighth or ninth floors of the building without an escort. Media and members of the public used to be able to access all but the ninth floor without a security badge. Neither agency would provide specific information on the new security measures that took effect on December 14 and will remain in place indefinitely. 

“Security procedures at the state Capitol have been enhanced not for any one specific event but just to ensure the safety of the public. … Our policy is not to discuss specific security measures,” a DPS spokesman said.

The Senate told its employees to head home early January 6 afternoon and offered security escorts to their cars. Other state agencies soon followed suit.

The Arizona Supreme Court closed on January 7 at the urging of the Department of Public Safety and the Governor’s Office also alerted all other agencies to do the same. 

Supporters of President Donald Trump gather to protest at the Arizona Capitol, Wednesday, Jan. 6, 2021, in Phoenix. (AP Photo/Ross D. Franklin)
Supporters of President Donald Trump gather to protest at the Arizona Capitol, Wednesday, Jan. 6, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

Along with lingering threats of political unrest connected to the 2020 election, the Covid pandemic will upend what is normally a boisterous day of festivities. Ducey will present his State of the State Address by video from his office, rather than on the House floor in front of 90 lawmakers and their guests. 

The speech will be broadcast on the big screen in the Senate, but most lawmakers expect to watch from their offices. Senators, who will be sworn in earlier in the day, are allowed to bring two guests but most have opted to take their oaths of office without friends or family watching.

In the House, new freshmen will each be allowed to bring two family members, but no returning lawmakers will get guests. House Minority Leader Reginald Bolding, D-Laveen, praised that plan as a way to balance the need for safety with allowing new lawmakers to mark a once-in-a-lifetime experience. 

“You don’t get to recreate special moments like this in your life,” he said.

The field-tripping school children, advocacy groups and observers who normally fill the House and Senate galleries won’t be welcome this year, as the Senate has already adopted policies to limit attendance and the House appears likely to follow suit. 

Under a set of Covid rules produced by the Senate late last year, members of the public would only be allowed in the building to attend a committee hearing for a measure they intended to testify on. They must wear a mask and pass a temperature check to get in, and must leave immediately after the hearing concludes.

On January 6, Senate President Karen shared an even stricter set of guidelines to follow in the event that she, Majority Leader Rick Gray and Minority Leader Rebecca Rios determine that an in-person meeting would cause increased health risks. In those cases, only five lawmakers would be allowed in a committee hearing room with the rest participating by video call from their offices, and the lobbyists and citizens testifying on bills would also be given information to call in to the hearing. 

The updated rules also include incentives for lawmakers to keep their masks on: if anyone removes a mask or otherwise fails to comply with the Senate’s Covid rules on the floor or in committee hearings, the hearing or floor session will recess until the offending lawmaker complies with the rules. 

Fann and Rios also confirmed plans to bar reporters from designated press desks on the Senate floor. This will primarily affect the Arizona Capitol Times, the sole media outlet that stations a reporter on the floor during every floor session.

Instead of the press tables on either side of the Senate president’s dais, Fann intends to set up two big screens for lawmakers who are participating by Zoom. 

“We want to try and maintain that social distancing and it would be very, very difficult with the media right there in those press boxes,” she said. 

Reporters will instead be allowed to view action from a gallery overlooking the chamber, and members of the public who normally fill the gallery won’t be permitted in the building. Several lawmakers, including influential Senate Appropriations Committee Chair David Gowan and Vice Chair Vince Leach, only answer media questions in person. 

“It’s going to be easier for members who want to avoid reporters or their constituents,” Rios said.

A legislative chamber last tried to bar reporters from the floor in 2016, when then-Speaker Gowan demanded that the Capitol press corps pass background checks in an apparent act of retaliation for negative coverage in the Capitol Times. He quickly rescinded that policy under pressure from fellow lawmakers. 

The new rules would permit any member of the Senate to participate in a floor session from their offices, provided Fann approves their request 90 minutes before it begins. 

-Yellow Sheet Report Editor Hank Stephenson contributed to this story. 

Crash kills lawyer day he pens friend’s endorsement

John Bouma (Credit: Snell & Wilmer)
John Bouma (Credit: Snell & Wilmer)

A prominent Phoenix attorney wrote a letter on the day he died last month to endorse his colleague for the Arizona Supreme Court.

On January 22, John Bouma, 82, of Snell & Wilmer, was struck by two cars on Seventh Street near Orangewood Avenue in Phoenix and was pronounced dead at a hospital around 9 p.m. Hours earlier, he had sent a letter to the Commission on Appellate Court Appointments on behalf of fellow Snell & Wilmer attorney Andrew Jacobs.

“I have known Andrew for many years, and I want to add a note of enthusiastic support,” Bouma wrote.

Jacobs said he and Bouma worked together sporadically over the 17 years Jacobs was at Snell & Wilmer.

Jacobs said that Bouma writing a letter on his behalf was very kind, and he is still affected by his loss.

“I am profoundly saddened by his passing. It’s upsetting to discuss. … He had another good 10-15 years in him,” Jacobs said.

Bouma was well-respected and well-connected throughout Arizona and is credited with growing the Snell & Wilmer law firm from one local office to nine firms across the western U.S. and Mexico, increasing from about 100 attorneys to more than 450. He spent 32 years as head of Snell & Wilmer and represented three Arizona governors, most notably Jan Brewer in 2010 after she signed the controversial SB1070, a wide-ranging measure aimed at giving the state more power to deal with the issue of illegal immigration.

In a post to her Facebook page, Brewer wrote: “John was an extraordinary man and excellent attorney … his commitment to State extended to his long-time effort to help the indigent with legal representation and his impact on the legal profession in Arizona will not be forgotten. RIP John.”

In Bouma’s letter, he talked about Jacobs’ history within the firm.

“Andrew has a first rate mind, is called upon to solve some of our clients’ most difficult problems, and is an extremely dedicated and diligent individual,” Bouma wrote.

Jacobs is one of 11 remaining applicants vying for Justice John Pelander’s seat that will be vacated on March 1. Part of the process in appointing a Supreme Court Justice is an open meeting where members of the public can speak in favor or against any of the applicants, and can also write letters to the commission. Bouma’s letter was sent three days before the applicants were announced and is one of 140 letters the commission received. On February 6, Jacobs made it to the interview stage along with 10 other applicants. Jacobs is only one of two Democrats to apply.

Jacobs said he was privileged to work with Bouma and was “always struck by his judgment and concern for others.”

Former Sen. Jon Kyl and Gov. Doug Ducey knew Bouma as well. Kyl told The Arizona Republic, “He was a good companion, and I will miss him greatly.”

Ducey posted to his Twitter, “[I’m] deeply saddened by news of friend, legal giant, and leader John Bouma. Prayers go out to his family, colleagues at Snell & Wilmer and all who knew him.”

Both Bouma and Jacobs grew up in the Midwest. Bouma in small town Iowa, Jacobs in Illinois. Jacobs was a partner at the Chicago law firm, Jenner & Block for nearly two years before moving to Tucson.

Bouma mentioned Jacobs’ Midwest background in his letter and touched on other qualities Jacobs has that “we would hope to find in our judges.”

“Andrew knows his way around litigation, both at the trial and appellate levels, and he definitely knows what is going on in the courtroom. … I hope the committee will give Andrew strong and favorable consideration,” he wrote.

On the Snell & Wilmer website, Bouma’s biography reads, “John Bouma, former firm chair, passed away on January 22, 2019 after a long and distinguished legal career and a record of outstanding service to his community. He was an honorable advocate on behalf of his clients, endeavored to be fair, demonstrated a genuine respect for all, worked to elevate the standards of the profession and did so with humility and integrity. We will miss our friend, colleague and mentor.”

There will be a celebration of his life on the afternoon of February 22.

Bouma Letter (Text)

Darcy Olsen, longtime Goldwater Institute CEO, ousted by board

Darcy Olsen
Darcy Olsen

Goldwater Institute CEO Darcy Olsen was forced out after the organization’s board of directors voted narrowly to remove her from the position she held for 16 years.

Attorney John Masterson, who represents Olsen, confirmed July 12 that the Goldwater Institute board of directors voted 7-6 to terminate Olsen’s employment agreement on June 27, nearly two weeks before the organization announced her departure. Olsen had headed up the conservative think tank since 2001.

Goldwater Institute board member Randy Kendrick said the seven members who voted to remove Olsen were “only trying to (do) the right thing for our values, our ethics and the future of the Institute.” And she said board Chairman Eric Crown was “acting on behalf of the entire board and in its best interests.”

“Not a single person took pleasure in this unfortunate situation,” Kendrick said via email, calling it a “sad event.”

Kendrick did not comment on why the board fired Olsen.

The Goldwater Institute declined to comment on the reasons for her ouster, and wouldn’t confirm that Olsen’s departure was involuntary. Spokeswoman Starlee Coleman said the organization’s thoughts on the matter were all in a press release announcing Olsen’s departure, which praised her 16-year tenure with the organization.

“(N)o one formerly associated with Goldwater can speak to the Board or staff’s current feelings towards Darcy,” Coleman said. “We are grateful for her many years of service to the organization and have nothing but well wishes for her future endeavors. She feels the same about Goldwater.”

Several allegations against Olsen were highlighted in an internal report compiled for the board in 2014, during a previous, unsuccessful attempt to remove her that led to the resignation of the board’s then-chairman, Tom Patterson.

The allegations included that she routinely had staffers run personal errands for her, that she frequently mistreated staff, that she refused to meet with high-dollar donors to the Goldwater Institute, and that she spent excessively on things like expensive hotel rooms while traveling for business.

Masterson said the allegations in the report were investigated and found to be without merit.

“After the investigation was completed, Ms. Olsen continued as CEO of the Goldwater Institute with the support of the majority of the Board of Directors,” said Masterson, of the firm Jones, Skelton and Hochuli. “The Goldwater Institute, under Ms. Olsen’s accomplished direction, continued to exceed expectations and remains one of the most successful organizations of its kind in the country.”

Coleman said old complaints from former employees that formed the basis for the 2014 report weren’t the reason for Olsen’s departure. She wouldn’t say whether similar, more recent complaints played a role.

In the initial press release announcing her departure, Olsen cited family needs for leaving the Goldwater Institute. She is a foster mother who has adopted three infants who have stayed in her home.

“I’m looking forward to charting a new course that gives me more time with my family and involves greater advocacy for children,” Olsen said in a statement. “My first love has always been to vindicate the rights of children and the innocent, and I look forward to concentrating on this work.”

Before joining Goldwater, she was the education policy director at the Washington D.C.-based Cato Institute, a libertarian think-tank.

Supporters and critics alike praised Olsen for building the Goldwater Institute into a nationally recognized powerhouse with a track record of high-profile successes in the policy and legal arenas.

Olsen made the decision in 2007 to create the Scharf-Norton Center for Constitutional Litigation, which transformed the Goldwater Institute from an intellectual heavyweight to a legal juggernaut. It has since won major cases that will change the political landscape both locally and nationally, including the CityNorth case in which the Arizona Supreme Court ruled that government subsidies for private development violate the Constitution, unless the developer offers benefits of equal value in return.

Olsen spearheaded the Goldwater Institute’s efforts in passing “Right to Try” laws, which allow drug makers and people who are terminally ill to bypass the federal government and use unproven drugs. Laws to that effect have been adopted in 37 states.

Olsen literally wrote the book on the Goldwater-pushed movement: “The Right to Try: How the Federal Government Prevents Americans from Getting the Lifesaving Treatments They Need.”

Olsen is the second high-profile departure from the Goldwater Institute in as many years. Clint Bolick, formerly the institute’s lead attorney, was appointed to the Arizona Supreme Court by Gov. Doug Ducey in 2016.

Victor Riches, a former deputy chief of staff to Ducey and the president of the Goldwater Institute since 2016, will assume the duties of CEO.

Demonizing Bill Montgomery contrary to merit selection


I appreciate the pioneering and independent merit based selection process for Arizona Supreme Court Justices. It is meant to be a job interview process that is above the usual political fray. So, I do have concerns about the manner in which Bill Montgomery has been publicly portrayed during the application process. As in previous judicial candidate slates sent to the Governor at both the trial and appellate levels, the current slate is quite remarkable in their diverse professional backgrounds. I encourage all who have had actual interactions with the individuals nominated to contact the Office of the Governor and provide their perspectives. But, publicly demonizing public servants that have taken a different path to judicial service is misplaced and contrary to the purpose of the merit selection process.

Brett Johnson
Brett Johnson

The criticism of Mr. Montgomery is unwarranted. In evaluating Mr. Montgomery, you can take the measure of him in deciding to enter public service in the first place and responding to the expected scrutiny, especially when it was false, unfair and unjust.  I had the chance to do just that with Mr. Montgomery when he sought to serve Maricopa County for a third time as our County Attorney in 2016.  Facing an onslaught of outside political spending, Mr. Montgomery never wavered in his determination to present his service in leading one of the nation’s largest public law firms in an accurate manner that fairly reflected his leadership.  He did not lash out at his opponents or resort to base rhetoric that too many today resort to in the first instance. Unfortunately, as he applies to continue to serve our community on the Arizona Supreme Court, Mr. Montgomery now faces similar public criticism that is simply unnecessary and a disservice to the process.

Mr. Montgomery is a qualified candidate to be considered for appointment to the Arizona Supreme Court. As a fellow veteran, I appreciate how Mr. Montgomery has continued his dedication to service that was developed at the United States Military Academy and then hardened on the front lines defending our country.  As an attorney who has litigated with and against members of Mr. Montgomery’s team of very skilled Deputy County Attorneys, I also know that his colleagues follow Mr. Montgomery’s mandate of professionalism and ethics. As many forget, Mr. Montgomery picked up the mantle of the County Attorney during a difficult time in the history of our legal community. He forged relationships, took serious his responsibilities to the community and judicial system, and always treated adversaries with dignity and respect.  Having also worked with Mr. Montgomery on the board of NotMyKid, an organization committed to prevention and treatment of youth substance abuse, I can say with absolute confidence that he cares deeply about our community, especially those that are forgotten or just needing a helping hand. With these and other experiences, it is clear that Mr. Montgomery is a person of great integrity and compassion.

Yes, Mr. Montgomery took a novel path to eventual consideration to serve on the Arizona Supreme Court. If selected, he would bring a different perspective developed by a unique life of public service. He represents the values engrained in military service. Similar to Justice Sandra Day O’Connor, who also served as an elected leader before moving to the judiciary, he understands the difficulties of balancing political responsibilities and the natural tug-a-war of public policy development. As one who regularly has had to make hard judicious decisions impacting victims and those accused, Mr. Montgomery is endowed with empathy. We are privileged to have such strong judicial candidates in Arizona. Mr. Montgomery is most deserving to be in their company. It is without doubt that regardless of whether he is selected as the next Arizona Supreme Court Justice, Mr. Montgomery will continue to serve Arizona and our country with honor, dignity, and respect.

Brett Johnson is a partner with the law firm Snell and Wilmer.

Ducey continues claim Garcia tried to ‘rig’ education tax proposal

Arizona Gov. Doug Ducey, a Republican, left, and Democratic challenger David Garcia partake in a televised debate in the Arizona Public Media studios in Tucson, Ariz., Tuesday Sept. 25, 2018. (Kelly Presnell/Arizona Daily Star via AP)
Arizona Gov. Doug Ducey, a Republican, left, and Democratic challenger David Garcia debate in the Arizona Public Media studios in Tucson on Sept. 25, 2018. (Kelly Presnell/Arizona Daily Star via AP)

Gov. Doug Ducey has reaffirmed his claim that David Garcia tried to “rig” the election for an income tax for education even though there is no evidence the Democrat gubernatorial hopeful had any role in crafting the measure.

Ducey first made the claim in a pair of debates last week, arguing that the fact the Arizona Supreme Court blocked the Invest in Ed initiative from going on the November ballot is proof it was deliberately misleading. And Ducey, campaigning for another four-year term, said the act was not only intentional but that Garcia was partly to blame.

The governor has now repeated the same claim in a radio interview even though gubernatorial press aide Daniel Scarpinato acknowledged his boss cannot cite any link between the crafting of the measure and Garcia.

But Scarpinato, defending the governor, said that’s irrelevant. He said that Garcia, in promoting the Invest in Ed initiative, should have known the ballot language was legally flawed — even before a divided Arizona Supreme Court eventually reached that conclusion.

Ducey’s claim is straightforward.

“David Garcia tried to rig an election and the Supreme Court caught him,” the governor said — three times now.

What is undisputed is that Garcia, , who has said the state needs more money for K-12 education, was an early supporter of the proposal to increase state income taxes on Arizonans earning more than $250,000 a year. The measure was designed to raise about $690 million a year.

The proposal gathered more than 277,000 signatures to put the question to voters in November.

On Aug. 29, however, a majority of the Supreme Court took it off the ballot.

The justices said in a brief order the 100-word description, which all initiatives must have, was flawed. They said it did not accurately describe the change in tax rate for top earners, listing the increase at 3.46 percent and 4.46 percent, respectively, for higher tax brackets, when it should have said “percentage point” over the current 4.54 percent top tax rate.

The justices also said the description did not inform voters that the verbiage also would repeal an automatic indexing of tax brackets, a 2015 law designed to prevent individuals from ending up in higher tax brackets solely because their wages went up no more than inflation. That, the majority concluded”creates a significant danger of confusion or unfairness.”

Scarpinato said Ducey’s claim of “rigging” – which would be an intentional act – is backed by the Supreme Court ruling.

“Take a look at what they put out thus far,” he said.

What the court record shows to date, however, suggests the legal conclusion that the language was flawed was far from clear cut.

First, a trial judge, hearing a challenge by initiative foes, had ruled that the verbiage was not inherently misleading.

Potentially more significant, the high court ruling knocking the measure off the ballot was not unanimous, meaning one or more of the justices found it legally sufficient. There was no mention of “rigging” the election in the court order.

But Ducey’s allegations go beyond the claim that there was an attempt to “rig” the ballot measure to his specific charge that Garcia was behind all that.

The evidence says otherwise.

“He was not involved at all in the drafting and inner workings for Invest in Ed,” said David Lujan whose Arizona Center for Economic Progress actually put the ballot language together.

Garcia acknowledged his role in helping gather the signatures, “just like everybody else, just like all the teachers.” But he said all of that occurred after Lujan already had filed the proposed language with the Secretary of State’s Office, a legal precursor to circulating petitions.

Scarpinato could provide no evidence of Garcia’s involvement in the drafting. But he said voters should still blame Garcia for trying to confuse them.

“I think that David Garcia has a responsibility, as both a candidate and a leader within that movement, to have been transparent about what the initiative did and understood it himself before he went out and helped them gather a lot of signatures,” he said.

Garcia said he looked at the language after it had been filed and decided to put his personal support and the support of his campaign behind getting it on the ballot.

“But it has nothing to do with rigging an election,” he said.

And Garcia said there is no reason to charge that he should have known there were drafting problems with the language.

“I didn’t see anything that stuck out to me at that time,” he said.

“But I was not involved in its crafting, not involved with the wordsmithing,” Garcia said. “I got it at the same time probably you did or anybody else did out there in the public.”

Ducey, however, is not backing down from his claim that Garcia was trying to “rig” an election, a term that suggests knowing manipulation by fraud.

“The language did not include an honest reflection of what this did, who it taxed and how it impacted Arizonans,” Scarpinato said. “We think that’s wrong.”

Scarpinato said the proposed tax was also “bad policy.”

Throughout the campaign Ducey has insisted the state does not need new revenues to support his promise of a 19 percent pay hike for teachers by 2020 and restoration of funding, which Ducey himself had cut in 2015, of an account that helps schools pay for books, computers and other capital needs. Instead, Ducey contends that an improving economy will bring in enough without any new levies.

Garcia, who had been counting on voter approval of the initiative, has since said that if he is elected he will work with the Legislature to come up with a source of new funds for education. But he has provided no details of what he wants.


Ducey picks Democrat for Court of Appeals

scales justice court 620

Gov. Doug Ducey appointed a Democrat to the Arizona Court of Appeals on Friday, a week after his controversial pick of Republican Maricopa County Attorney Bill Montgomery to the Supreme Court. 

Ducey named David Gass, a judge on the Maricopa County Superior Court, as the replacement to Justice James Beene, who Ducey appointed to the Supreme Court earlier this year. 

Although Gass’s bid to become an appellate judge did not garner near the attention as Montgomery’s bid for the Supreme Court, Ducey ballyhooed both their selections.   

David Gass
David Gass

Montgomery and Gass spawned many quick positive reactions on Twitter that the Governor’s Office was not shy about sharing. Each positive tweet on behalf of the respective appointment warranted its own separate press release.

Ducey issued a single press release on the day of Beene’s appointment in April. Montgomery’s was the first judicial appointment with such a flurry of emails – more than 12.  Gass’s followed suit with four almost immediately after he was named. 

Gass previously worked in the Attorney General’s Office under Terry Goddard, and was the Arizona House Democratic Caucus counsel before that. Also with the help of the Arizona Judges Association, Gass started a legislative day for judges to shadow a lawmaker at work during the session.

He was appointed by Gov. Janet Napolitano to the Superior Court in 2009.

The Gass appointment gives Ducey 62 total court appointments, two shy of Gov. Jan Brewer and six shy of Gov. Bruce Babbitt’s record of 68. Ducey must now fill another seat on the Maricopa trial court, in addition to one more Court of Appeals appointment this year following the death of Judge Jon Thompson. The governor already had to fill two other vacancies on the Maricopa County Superior Court after Judges Janet E. Barton and Cari A. Harrison retired. 

Ducey picks former aide for Supreme Court

With husband, Bill, looking on, Kathryn Hackett Smith is sworn in Thursday to the Arizona Supreme Court by Justice Ann Scott Timmer. (Capitol Media Services photo by Howard Fischer)
With husband, Bill, looking on, Kathryn Hackett Smith is sworn in Thursday to the Arizona Supreme Court by Justice Ann Scott Timmer. (Capitol Media Services photo by Howard Fischer)

Gov. Doug Ducey on July 8 chose Kathryn Hackett King as the newest Arizona Supreme Court justice, making her his record-shattering sixth high court pick.  

Hackett King will replace another Ducey appointee — Justice Andrew Gould retired earlier this year to run for state attorney general. 

Hackett King was Ducey’s deputy general counsel from 2015-17 and is a member of the Arizona Board of Regents. She’s also a partner at BurnsBurton PLC. 

“The last few appointments to the Supreme Court have been lawyers from a predominantly – of a criminal background,” Hackett King said during her interview with the appellate commission in May. “And so, what I bring is this new fresh perspective of somebody coming from a complex civil litigation background.” 

When she was with the Governor’s Office, Hackett King advised Ducey on the constitutionality of bills that came across his desk and the potential challenges under the state and U.S. Constitution. 

He appointed her to Arizona Board of Regents in 2020. 

“Kate’s strong belief in the separation of powers and experience serving in all three branches of government will serve the people of Arizona well,” Ducey said in a prepared statement. “I have witnessed her intelligence and wisdom firsthand, and I know she is well-respected in the legal field. I am delighted to appoint Kate to the Arizona Supreme Court.” 

Ducey has appointed all but two of the current justices. Chief Justice Robert Brutinel and Vice Chief Justice Ann Scott Timmer are both Gov. Jan Brewer appointees. 

Ducey has set records across the board for the number of judges he has appointed, including a record number of women and judges from different political parties than his own to the lower state courts. This is his first appointment of a woman to the state Supreme Court. 

Hackett King’s legal career was inspired by her father who routinely told her, “Kate, go out and help somebody today.”  

“Those words really stuck with me,” Hackett King said during her interview. “They have stayed with me true until today.”  

Hackett King graduated from Duke University with a Bachelor of Arts in Political Science before attending law school at University of Arizona James E. Rogers College of Law. After graduation, she clerked for Arizona Supreme Court Justice Michael D. Ryan from 2007 to 2008. 

Hackett King’s work in private practice has focused on labor and employment law, representing private and public employers. In addition to representing clients in state and federal courts, she also represented clients in matters pending before state and federal administrative agencies. 

Republican attorney Chris DeRose has known Hackett King for 20 years. 

“I think Kate will bring a unique perspective to the bench as a career litigator, as a very well-respected person who has spent her life in trial court and in an area of the law in which a lot of judges aren’t that familiar,” he said. 

DeRose said one would be hard-pressed to find someone with something negative to say about Hackett King professionally or personally.  

“She’s somebody who’s brilliant but humble, and she’s going to treat everyone who appears in front of her with respect,” DeRose said. “She’s very hard working; she’s someone who’s going to take the time to know the law and to know the facts of the case in front of her.” 

Chandler attorney Tom Ryan applauded Ducey for appointing a woman but bemoaned an overall lack of diversity, politically and otherwise, with the applicants Ducey had to choose from. No Democrats applied. 

“It’s going to have a very conservative ideological bent,” Ryan said. “There are other diversity issues that are lacking here on the Supreme Court right now — there’s a lack of minority representation; there’s a lack of representation outside of Maricopa and Tucson-centric stuff; there’s a lack of representation on the various types of cases that are out there.”

Editor’s note: This story has been revised to include additional information. 

Ducey signs bill to keep secrecy of anonymous campaign donors


Arizona cities are losing their right to demand that nonprofit groups seeking to sway local elections divulge who is financing the effort.

Gov. Doug Ducey late Thursday signed legislation which preempts local ordinances that require these groups to register as political action committees. More to the point, the measure which takes effect this summer makes any effort to identify contributions off limits.

The new law, however, could face an uncertain future.

By a margin of 9-1, Tempe residents voted earlier this year to mandate disclosure of spending on local races. That new ordinance also requires that voters be told who is behind any effort that spends more than $1,000.

But Tempe is a “charter city,” constitutionally entitled to enact laws on strictly local matters. And the Arizona Supreme Court has ruled on two separate occasions that local elections in charter cities are not subject to state oversight.

It is not known whether Tempe will challenge the new law as an unconstitutional infringement on local powers. But other charter cities, including Phoenix, are considering similar measures.

There also is currently a statewide initiative drive being pushed by former Phoenix Mayor Terry Goddard which would put a “right to know” provision in the Arizona Constitution to require that all sources of $10,000 or more be made public. If it makes the November ballot and is approved, it could override any state laws.

This law, pushed by Rep. Vince Leach, R-Tucson, is aimed at gaining protection for donors to “social welfare” groups that spend money to help elect or defeat certain candidates through independent expenditures.

Ducey has been supportive in the past of allowing anonymous donations. And he himself has been the beneficiary of such expenditures.

He got elected governor in 2014 with the help of $8.2 million spent by outside groups both supporting his election and running commercials attacking Democrat foe Fred DuVal. That eclipsed the $7.9 million Ducey spent on his own, money that came from disclosed donors.

That wasn’t just a one-way street. DuVal benefited from $2.4 million in independent expenditures compared to his own $4.3 million campaign.

The governor has said he believes in transparency. But he also said there’s a valid reason to allow people to contribute anonymously to campaigns.

“I think people have a First Amendment right as well to participate and not be bullied,” he said.

That’s the same argument advanced by Leach in pushing the legislation through the House and, just this past week, by Senate Republicans in giving their own approval.

“Citizens have a right to privacy,” said Sen. Sylvia Allen, R-Snowflake. “They have a right to give their money to whatever cause they deem is right.”

She also said there is as need for privacy.

“The problem is that the Left will use this information and they harass businesses,” Allen said.

Ducey surpasses state record of judicial appointments

The Arizona Supreme Court from left are James Beene, Andrew Gould, Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery.
The Arizona Supreme Court from left are James Beene, Andrew Gould, Vice Chief Justice Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery. Gov. Doug Ducey has chosen all the justices except Timmer and Brutinel and he has made more judicial appointments than any Arizona governor in history

Gov. Doug Ducey has been in office for 1,942 days, and has made 71 judicial appointments over that span, but his picks will have a lasting impact on Arizona long after he leaves office.

On April 24, Ducey surpassed Gov. Bruce Babbitt for the most appointments in state history after naming three judges to the trial court in Maricopa County and one to the Court of Appeals Division One. Coincidentally, Babbitt was the last Arizona governor to successfully serve two full terms.

Ducey passed him with still more than two years left to go and plenty more picks to make.

His record-breaking choices extend to more than just the most overall, but it’s hard to imagine any future governor would appoint five or more Supreme Court justices during their term as governor, something he accomplished in 2019 after appointing both Justice James Beene and Justice Bill Montgomery.

Ducey is able to make judicial appointments through a process called merit selection. A commission – either for trial courts or on the appellate level – narrows down a field of applicants through an extensive vetting process to send a list of qualified candidates for an interview with the governor and subsequent appointment. It’s required to send at least three names (with party restrictions), but commissions will typically send five – and occasionally more.

Paul Bender
Paul Bender

ASU law professor Paul Bender said the longer the list of candidates Ducey has to choose from, the more likely the picks become political.

“The commission is there for a reason, and it’s to narrow down the people so the governor can appoint the best people,” Bender said. “When you start sending in five or seven names, that doesn’t work as well anymore.”

From Ducey’s recent pick of Cynthia Bailey to the Court of Appeals, he was given a list of 11 candidates. The commission in this instance barely winnowed down the field, only eliminating one candidate.

When Ducey appointed Montgomery in September, he interviewed seven people. For each of Gov. Jan Brewer’s three appointments to the highest court, she was given a list of just three names. Clearly, Ducey has received more freedom to make picks than previous governors.

“The more names you give him the more it’s like he can pick whoever he wants,” Bender said.

Ducey has also come under heavy scrutiny from mostly Democrats on his appointments to the nominating commission. Made up of 15 people with the chief justice serving as its chair, there is not a single Democrat involved. The commission is also in charge of vetting candidates for the Independent Redistricting Commission providing a double-whammy of sorts for Republicans to regain control of Arizona’s next political decade.

Bender referenced the governor’s picks to the Commission on Appellate Court Appoints as a further reason he is able to choose who he wants, within reason.

“The combination of the fact that he’s been able to put people on the commissions and the fact that the commissions are giving him a lot of names, has given him more freedom than previous governors have had since the merit selection system started,” Bender said.

Through his 71 total appointments, he has spread around diverse picks to shake up the courts. Ducey has appointed the most women, the most members who don’t belong to his own party and sits behind only two governors for the most racially diverse selections. But looking into where those picks have gone, he seems to favor diversity on the lower level courts.

Doug Ducey
Doug Ducey

Ducey appointed 25 total women to the courts, but not one serves on the Supreme Court, though he has interviewed several. He appointed four women to the Court of Appeals (compared to nine men), and the bulk of his female selections went to the Maricopa County Superior Court.

His appointments to the Supreme Court consist of five men, but four are Republican and the one who is not, Justice Clint Bolick, is an independent who is still viewed as highly conservative.

His Democratic and third-party picks typically go to the Superior Courts as well. He has appointed 29 people not belonging to the Republican Party – and only four (including Bolick) are on the appellate level.

Bender said this is important because appellate courts are the ones who are really making the laws.

“It is more important to have political balance on the appellate courts than it is on the trial courts, because the appellate courts make the law and the trial courts just decide the cases,” he said.

Ducey’s picks will also last a while because he has made a habit of appointing younger judges. The courts have a mandatory retirement age of 70 and at least on the Supreme Court, none of the justices will reach that mark until at least 2027. Bolick is the oldest being born in 1957, but Chief Justice Robert Brutinel (a Brewer-appointee) could keep up with tradition and retire after his five-year term as chief ends in 2024. So barring a resignation or death, or a lost retention vote, 2024 seems to be the earliest the next justice will be named to the high court.

One judge who interviewed with the governor for an appointment said Ducey doesn’t ask easy questions and was engaged in the answers.

Ducey expects some level of analytical explanation in the response, and he’s not looking for specific answers either, and he also asks about relevant beliefs like the role of a judge or justice, separation of powers, and specific constitutional provisions. He asks personal questions too, such as reading choices, greatest personal accomplishments and time spent outside of law.

The judge said Ducey doesn’t always conduct the interviews though. Sometimes he leaves it up to his staff, and that he probably seeks judges who approach the role with humility and a recognition of the separate branches of government.

Ducey laid out his judicial selection process in a “fireside chat” with former U.S. Sen. Jon Kyl in 2019.

Ducey point blank says he has asked the commission to send him more names. He said he doesn’t like the word “legacy” being used to describe this because it puts too much focus on the individual, but uses it anyway.

“These are legacy picks,” Ducey said. “These are people that almost all will outlive the term of the governor.”

When it comes to asking questions of his eventual appointments, Ducey said there isn’t a litmus test, but he likes to start with judicial philosophy. He went on to say he’s really trying to find out if the candidates want to be a judge or if they would be better equipped running for the Legislature.

“If they want to be a judge, that’s the person I want to select. If they want to make policy, they should go run for office,” he said.

Ducey also has made a habit of choosing judges from lower courts, which has heavily played into why he has made so many appointments, and will continue to do so. But less so on the Supreme Court where only two of his five picks came from a lower court – Beene and Justice Andrew Gould.

Bender compared that “strategy” to one a lot of Republican presidents have used to shape the federal court system.

“President Eisenhower was the one who started it. He started appointing people to the Supreme Court from the courts of appeals and he also ended up appointing people to the Supreme Court that he’d already appointed to the courts of appeals,” Bender said, adding that he views this as a problem because it shows a lack of diversity for justices’ backgrounds.

But for Ducey, Bender doesn’t view his picks to the Supreme Court as a negative in that instance.

“To me, that’s a strength that you have a court that is composed of people from different areas,” he said.

Ducey: Invest in Ed supporters in need of ‘civics 101 class’

Gov. Doug Ducey (Photo by Katie Campbell/Arizona Capitol Times)
Gov. Doug Ducey (Photo by Katie Campbell/Arizona Capitol Times)

Gov. Doug Ducey said Monday that Invest in Education Act supporters who blame him for the downfall of the ballot initiative need schooling on how government works.

Ducey’s comments come after Red for Ed and Invest in Ed supporters blamed the governor for an Arizona Supreme Court ruling on Aug. 29 that will keep the initiative, which would have raised taxes on the state’s top earner to fund education, off the November ballot.

“I would point them to a civics 101 class,” Ducey said. “The Supreme Court is a separate and coequal branch.”

Arizona teachers make up a large portion of Invest in Ed supporters.

Proponents of Invest in Ed accused Ducey of “stacking” the Supreme Court in order to further his agenda and kill the citizens initiative. In 2016, Ducey appointed two new justices to the state Supreme Court after the Legislature passed legislation expanding the court from five to seven members at the governor’s behest. He also made an appointment in 2015.

Invest in Ed supporters say Ducey’s appointed justices played a major role in killing the ballot initiative. It is too early to know, though.

The Supreme Court ruling was a split decision, but the five-paragraph preliminary ruling does not indicate where each justice stood in the debate. A more extensive written ruling will be issued in the future that will disclose the split and further explain the ruling.

A majority of the justices ruled that the initiative description of Invest in Ed’s proposed tax hike on the wealthiest Arizonans and the omission of any language describing how the law would affect income tax brackets for Arizonans at every income level was inadequate.

The two factors created “a significant danger of confusion or unfairness,” Chief Justice Scott Bales wrote in the decision barring the initiative from a vote on the November ballot.

Ducey said Monday after a campaign event he respects the high court’s decision that the initiative could have been misleading to voters.

Ducey has repeatedly refused to comment on ballot initiatives before they make it on the ballot, but he indicated that his thoughts on Invest in Ed were already clear.

“Everyone knew I was not in favor of the tax increase,” he said. Ducey said he looks forward to reading the full opinion when it is released.

After the Supreme Court decision, Red for Ed supporters quickly lashed out against the court, the governor and the Arizona Chamber of Commerce and Industry — a major opponent of the initiative — for Invest in Ed’s demise. Red for Ed supporters, who spent months collecting approximately 270,000 signatures to put the initiative on ballot, have held protests at the Supreme Court and the Chamber to vent their anger at the high court’s ruling.

David Garcia
David Garcia

Red for Ed supporters are now working to channel their energy into getting pro-public education candidates up and down the ballot elected to office this November. One candidate they are backing is Democratic gubernatorial candidate David Garcia, who also bashed Ducey for the Supreme Court decision.

After the ruling, Garcia labeled the Supreme Court as Ducey’s “cronies” in a fundraising email.

“The stakes in the race for Governor of Arizona have just changed — utterly and irrevocably. Doug Ducey’s hand-picked Supreme Court just removed the Invest in Education initiative from the ballot,” Garcia said in the email.

The Invest in Ed ballot measure sought to raise taxes on income above $250,000, a move they estimated would boost funding for K-12 public schools by $690 million.

Clarification: This story has been updated to clarify that Gov. Doug Ducey said supporters of the Invest in Education Act who blame him for the initiative’s downfall are in need of a civics lesson, not teachers who blame him for the downfall.  

Ducey’s next Supreme Court pick stirs speculation

Arizona Supreme Court Justice Andrew Gould speaks at his swearing-in ceremony on December 19. (Photo by Rachel Leingang, Arizona Capitol Times)
Arizona Supreme Court Justice Andrew Gould speaks at his swearing-in ceremony on December 19, 2016. (Photo by Rachel Leingang, Arizona Capitol Times)

The legal community is abuzz speculating about who will be Gov. Doug Ducey’s record-smashing sixth Arizona Supreme Court appointment after the retirement of Justice Andrew Gould. 

Many of the state’s justices come straight from the Court of Appeals, and most of the names circulating are judges in those courts. Court watchers and judges pointed to judges Cynthia Bailey, Jennifer Campbell, David Weinzweig, James Morse Jr. and Jennifer Perkins as possibilities, along with Sean Brearcliffe and Maria Elena Cruz, who were finalists for the Supreme Court bench in 2019. 

Superior Court Judge Pamela Gates, Paul Avelar of the Institute for Justice Arizona, and House General Counsel Andrew Pappas were also named as potential replacements for Gould. 

Gould, appointed by Ducey in 2016, filled one of two openings created when the high court was expanded from five to seven seats. Ducey has appointed all but two of the current justices. Chief Justice Robert Brutinel and Vice Chief Justice Ann Scott Timmer are both Gov. Jan Brewer appointees.

While Ducey has set records across the board for the number of judges he has appointed, including a record number of women and judges from different political parties than his own to the lower state courts, he hasn’t appointed a woman to the state Supreme Court. 

Court watchers said Gates, a Brewer appointee, and Bailey, appointed by Ducey, would make strong applicants.

“Many have spoken very highly of both those ladies,” said Doug Cole, COO of Highground Public Affairs Consultants and a former member of the Appellate Court Commission and the Maricopa County Trial Court Commission.

Republican attorney Kory Langhofer, who also operates a Supreme Court of Arizona blog, said he doubted Ducey would strongly consider the candidates’ gender in his decision.

“Every time there’s an opening, people say now’s the time to appoint a woman and then he doesn’t,” Langhofer said. “I would think he’d continue looking past conditions such as gender or ethnicity.”

Justice John R. Lopez IV, who filled the other seat created in the 2016 court expansion, is the first Hispanic to serve on the state’s high court. There are currently no Asian or Black people on the court.

“This lack of diversity does hurt the strength of the court,” Chandler attorney Tom Ryan said. “It’s the combined experiences of people that come from diverse backgrounds that make this Supreme Court a better place. When it’s simply an echo chamber, it does not effectively represent the state of Arizona and get to decisions that will effectively help all Arizonans.”

Geography is another diversity factor to consider, Cole said.

“There are no justices on the court from Pima County or anywhere south of the Gila (River) right now, so I would also aspire to bring in some geographic diversity,” Cole said.

Ducey appoints judges and justices after they’ve gone through the merit selection process where a commission vets applicants and sends a shortlist of top candidates to the governor for an interview. The commission must send at least three names, but often sends five or more.

Education advocates push for removal of 2 Supreme Court justices

(Photo by Katie Campbell/Arizona Capitol Times)
Teachers, students and Red for Ed supporters gathered at Chase Field on April 26 before marching to the Arizona Capitol. Teachers and other education advocates now are trying to remove Supreme Court justices for their decision to strike a tax hike for education off the ballot. (Photo by Katie Campbell/Arizona Capitol Times)

Upset with a ruling that knocked a tax hike for education off the ballot, some education advocates are trying to get voters to turn one or two Supreme Court justices out of office in November.

Teresa Ratti said the conclusion by the justices that the wording of the Invest in Ed initiative was misleading was “the exact same statement” that came from the Republican-controlled Legislative Council which was tasked with writing an explanation of the proposal.

“Do we really have a separate judiciary branch or is our judicial branch being controlled or influenced by the executive and the Legislature,” she asked.

So Ratti, a high school government teacher, is using a constitutional provision on how judges are chosen in Arizona to urge people to oust Clint Bolick and John Pelander. They are the two of the seven justices whose terms are up this year.

Jennifer Hilsbos, who has been involved in this year’s spate of education advocacy at the Capitol, is focusing solely on Bolick.

Ideally, Hilsbos said, she would like to get rid of the two newest justices who Gov. Doug Ducey got to name after the Republican-controlled Legislature agreed to expand the court from five to seven members. She said Ducey effectively was packing the court with his choices.

But neither John Lopez nor Andrew Gould are up for election this year. So that leaves her to take out her wrath on Bolick, who Ducey named to the high court in 2016.

Anyway, she notes, Pelander was tapped for the court by Jan Brewer, Ducey’s predecessor. But if Pelander is removed and Ducey gets reelected, that gives the current governor a chance to name yet another member of the court.

The system, approved by voters in 1974, sets up a process where the judges of the Supreme Court, Court of Appeals and superior courts of Pima, Pinal and Maricopa counties are named through what is known as a “merit selection” process.

A special panel reviews applicants and forwards the names of nominees to the governor who must choose from that list. Then, as terms expire, the judges stand for reelection on a retain-or-reject basis. If they are turned out, the process starts all over.

In the entire history of the system, only three judges have been removed, one from the Court of Appeals and two from the Maricopa bench. No Supreme Court justice has ever lost an election, though a group that did not like one of his rulings did try to deny Pelander another six-year term in 2012.

The initiative at issue would have increased state income taxes on individual earnings above $250,000. The idea was to create a dedicated revenue stream of about $690 million a year for education.

Backers got more than enough signatures to put the issue on the November ballot.

But in a brief order late last month, Chief Justice Scott Bales said the description provided to petition signers did not inform them of all the implications of the measure, saying “that creates a significant danger of confusion or unfairness.”

It’s not just that conclusion that angered education supporters. There was also the fact that Daniel Scarpinato, a campaign aide to Ducey, confirmed that he had told some reporters that the decision was a 5-2 split in a bid to show that the governor’s two new appointments didn’t make a difference, even though that information is not public.

From the perspective of those seeking to oust the justices, that just confirms their belief there is a pipeline between the high court and the governor’s office, one they contend suggests that information also flows the other way.

That “leak” — no one from the court will confirm the vote until a formal ruling comes out — has caused some concern.

Jerry Landau, an aide to the court, said there already is an inquiry into how any information got out.

“I am completely confident that none of the justices communicated that information,” Bolick told Capitol Media Services. “The notion that any of us would ever divulge a vote breakdown before it was official is flabbergasting.”

Pelander said he knows nothing about it and does not believe it came from any of the justices.

“But if there was any kind of leak it’s extremely disappointing and disconcerting to me,” he said.

The larger question goes to the beliefs of those who want to oust one or two of the justices that the decision to bar a vote on the Invest in Ed measure was political.

Bolick said this isn’t like the U.S. Supreme Court where the split on many decisions can be predicted based on the political leanings of the justices. In fact, he said, in those ruling where the Arizona court has been split, the justices do not line up along predictable lines.

For example, a decision last month to allow a developer to use groundwater in Cochise County drew two separate dissents, one from Bolick and one from Bales who was appointed to the high court by Democratic Gov. Janet Napolitano.

Bolick also pointed out that he voted two years ago to overturn a trial court judge and allow a vote on a plan to raise the state minimum wage to $12 an hour by 2020, something that probably did not fit his pre-appointment political philosophy at the Goldwater Institute.

Pelander, on the high court for nine years and an appellate judge for 14 before that, said none of the discussions he has had with colleagues about a pending case has ever been based on politics. And he took particular offense at the idea that he would be opposed to funding public education, pointing out his own background going through public schools, his mother as a teacher and his father serving on a local school board.

The effort to deny Pelander a new six-year term in 2012 was pushed by those who did not like the fact he agreed to allow a public vote creating an open primary system where all candidates run against each other regardless of party affiliation, with the top two advancing to the general election. Two of the other five judges also agreed with that conclusion but Pelander was the only one on the ballot that year.

Despite the campaign against him he still got nearly 1.1 million votes with fewer than 378,000 against him.

Since the retain-or-reject system was adopted, only three judges have been turned out of office.

In 1978, Gary Nelson lost his post on the Court of Appeals. That same year, Maricopa County voters removed Superior Court Judge Fred Hyder and in 2014 voters ousted Benjamin Norris from the bench Maricopa County.

Education ballot measure no place for obscurity, euphemism

(Photo by Ryan Cook/RJ Cook Photography)
(Photo by Ryan Cook/RJ Cook Photography)

In what some education supporters see as a cruel blow, the Superior Court recently denied placement of the Invest in Ed measure on the November 2020 ballot. Calling the summary of the initiative “legally insufficient,” the pointed opinion stated that the description “does not accurately describe the Initiative’s principal provisions without the substantial risk of confusion for a reasonable Arizona voter.” The initiative’s supporters are appealing the decision to the state Supreme Court.

The business community is justified in their concern over the lack of disclosure provided to voters on Invest in Ed. Blithely posed as a “surcharge” on individual income taxes, the direct impacts to business are significant and widespread. Among Arizona’s more than 570,000 small businesses, estimates suggest that 40% to 50% of those impacted by the tax increase will be business owners who legally file their taxes as individuals rather than as corporations. The marginal rate change (from 4.5% to 8.0%) represents about a 77% increase in their top tax rate. Without appropriate summary, voters are left on their own to interpolate the measure’s meaning, reach and consequence. They will find no illumination from the Invest in Ed website, which provides only relative and comparative tax data and fails to calculate or estimate actual impacts.

Arizona education leaders are well acquainted with legal obligations and expectations to communicate openly and transparently with the public. For instance, informational pamphlets for bond elections must include specifics on the tax impacts to business owners as well as individual homeowners. In other communications with the public, school officials are advised that when discussing or considering school matters, which can be complex, information provided must be “sufficiently descriptive to inform the average, off-the-street person.”

Eileen Klein
Eileen Klein

The ballot is no place for obscurity and euphemism. Nor is soft pedaling to voters even necessary. Arizonans have a solid record of funding education at the ballot box, even when they are told clearly and directly that they will be paying more in taxes and shown how.

In 2000, Arizona voters supported Proposition 301, which imposed a new sales tax predominantly benefitting K-12 education, providing monies to fund teacher pay, classroom size reductions and students support programs like tutoring and dropout prevention. In 2010, Arizona voters passed a temporary additional sales tax through Proposition 100 to provide nearly $1 billion in funding to protect education budgets during the Great Recession. Although it involved changing a constitutional formula rather than raising taxes, voters in 2016 approved Prop 123 to increase distributions from state land trust earnings to raise K-12 per-pupil spending and add an estimated $3.5 billion over ten years.

Notably, those ballot measures were led and funded by a broad coalition of Arizona business and education interests, working together with elected officials in the best interest of our public schools, teachers and students. As a result, they faced little opposition due to extensive efforts to bring together diverse stakeholders in a bipartisan fashion.

In contrast, Invest in Ed has been organized and underwritten by a narrow set of special interests located outside Arizona. Campaign finance reports show that as of June 30 over $4 million has been raised to pay for campaign workers’ salaries and benefits, as well as political activities like signature gathering and text message outreach. Nearly all of that funding – over 85% – has come from a single organization located in Portland, Oregon.

Arizona’s Voter Protection Act creates a compelling reason for activists to go to the ballot rather than the Legislature to lockbox their efforts. Passed by legislative initiative in 1998, Proposition 105 immunizes measures passed at the ballot from gubernatorial veto or legislative diversion. Those who seek to change Arizona’s Constitution, laws and appropriations through the voting booth should not be surprised to find their efforts facing extra scrutiny given the act’s protective shield.

For their part, Arizona education advocates are understandably worried that calling a halt on the Invest in Ed initiative will end the conversation on school funding. They shouldn’t be so pessimistic. For at least a decade, Arizonans have said more money should be spent on schools and the majority are willing to pay more in taxes. They also want their hard-earned money spent efficiently.

Despite the legal battle underway, Arizona business leaders support spending for teachers and schools. Arizona business leaders supported the “20 by 2020” plan introduced by Governor Ducey and passed by the Legislature to raise teacher salaries 20% by 2020. It cannot be overlooked that Arizona business supported teachers and school personnel continuing to get paid even while schools were closed due to COVID, while their own employees have gone without work and without pay. Ignoring these efforts, out-of-state forces instead imported Invest in Ed to Arizona in 2018 and again in 2020, refusing to set aside their agenda even amid the hardships caused by a global pandemic.

Should the Supreme Court uphold the lower court’s decision, rest assured there will be Arizona business leaders who step forward, willing to create a more robust and comprehensive school funding plan without the threat of economic harm.

It’s time for a more modern, more sensible approach to school finance – one that is Arizona led, and Arizona backed – and that will generate revenue from more reliable resources to support schools and teachers. Beyond shoring up per-pupil spending levels, the plan must make funding allocations among schools more equitable and result in greater academic achievement for all students. Spending equity and tax equity go hand in hand in Arizona school finance, so the plan likewise should update our tax code and spur additional business investment that grows Arizona’s economy and personal income for its residents, not stifle their prosperity.

Working together, Arizona business and education leaders have the opportunity to make our state the best place to educate a student, whether they attend a public K-12 school, community college or university. The millions being spent on court battles on both sides could be put to better use by funding an inclusive stakeholder process to keep Arizona voters from going through this conflict again in future election cycles.

Meanwhile, no one should argue that Arizona voters deserve straight talk when it comes to their ballots and their pocketbooks. Back in Oregon, the commanders of Invest in Ed might heed the wisdom of Chief Joseph of the Nez Perce, a revered leader and forefather of the lands that belong to their state, “It does not require many words to speak the truth.”

Eileen Klein is the owner of a small businesses in Arizona. Her public service includes serving as the 35th state treasurer of Arizona and chief of staff to Governor Janice K. Brewer. Eileen is past president of the Arizona Board of Regents and a former member of the State Board of Education.

Election challenges a question of law, issue of values


In the last week, four of five Arizona Corporation Commission candidates whose nomination petitions were challenged lost their cases. I was the plaintiff in three cases – one of which prevailed in the Arizona Supreme Court.

Those who lost will place the blame on partisan conspiracies, out-of-state operatives, overreaching jurisprudence or any other sound bite that suits them. The truth? They should blame themselves.

As was stated by plaintiff attorneys, the foundational requirement for candidates is the requirement that requisite valid signatures be submitted to qualify for the ballot. The losing candidates failed the test.

Forged signatures, disregard for the law, lax campaign oversight, sloppiness.

Eric Gorsegner
Eric Gorsegner

The attorneys for the plaintiffs meticulously applied the law and exposed the deficiencies.

The courts rendered fair and impartial justice.

To be sure, there are plenty of problems with elections in Arizona:

  • “Separate but Unequal” – one system for candidates (Substantial Compliance threshold) and one system for initiatives (Strict Compliance threshold). Call it unfair, rigged, political, antidemocratic even shameful, but, it is an easy fix for policymakers whose motives are pure rather than partisan.
  • Dark Money – Disclosure is the least onerous requirement possible and one embraced by the late conservative Justice Antonin Scalia. Yet, in Arizona we continue to tolerate this affront to the integrity of elections and democracy. It is an outrageous indefensible atrocity and crass abuse of power.
  • EQual – Expansion and refinement of this system would constitute a giant leap forward in improving, syncing, and modernizing the moving parts of our election system. Opposition to constructive reform is based on fake arguments, manufactured fear, and imagined technical hurdles that do not exist. In short, one reliable secure database with verification, cross referencing, and sorting protocols beats the archaic analog system of “scroll and papyrus.”

Over a century ago, the Arizona Constitution and Arizona Corporation Commission were conceived by reform- minded citizens who feared the corrupting influence of unchecked monopolies. Arizona has experienced a decade of dysfunction on the commission and these candidates would have perpetuated that culture. There can be no denying that the status quo is in decay. The commission must serve the public interest, not self-interest and special interests.

I believe that the forces of entrepreneurship, innovation and capitalism will eventually overwhelm the current paradigm of political manipulation and obsolete regulatory structures. Although we are moving in that direction, until that transition comes, a properly regulated free market with public minded policymakers is the best we can do. The values of those who occupy these positions matters greatly.

It is vital that the commissioners we elect in 2020 be genuinely grounded in core values of fairness, due process and ethics.

It is also vital that the commissioners we elect demonstrate a deep and firm commitment to:

  1. The New Energy Economy – Embracing the jobs and economic development that come from technological innovation, new market structures and new ideas.
  2. Renewable Energy, Efficiency & Storage Technology – Aggressively capitalizing on our solar resources, grid investments and transportation infrastructure.
  3. Environmental Stewardship – Understanding the interlocking complexities of energy, water, land, natural resource conservation and economic development

Those are my litmus tests for any candidate – Republican, Democrat or independent.

This year, every voter should look behind the trite repetitive slogans and be skeptical of outside dark money that will flood this election to “manage your thinking.” Cast aside the “isms” and shallow unreflective arguments of anyone who says this is easy because it is not. The Corporation Commission is a place for serious, smart, thoughtful policymakers, not political climbers. Voters have a civic duty to pay attention.

— Eric Gorsegner is former associate director at the Sonoran Institute, deputy director of the Citizens Clean Elections Commission, deputy chief of staff to the mayor of Phoenix and senior government relations representative with the Salt River Project.

Election denier Finchem penalized $40K, Lake off the hook

Kari Lake will not have to pay court-ordered penalties even though a judge rejected her latest bid to overturn the 2022 gubernatorial election.

In a ruling late Friday, Maricopa County Superior Court Judge Peter Thompson reaffirmed his earlier ruling that Lake failed to provide evidence of misconduct in the way Maricopa County verified the signatures on early ballots. The judge had rejected her claim that the rate of signature approval – including 274,000 at less than three seconds and 70,000 in fewer than two seconds – proved that the county was not complying with statutory requirements that signatures be compared.

Thompson also refused to grant her a new trial on her separate claim that Election Day problems with equipment at polling places was caused by intentional acts of county election workers and disenfranchised voters and affected the outcome.

Lake, trial, Hobbs, governor, Trump, election deniers
Kari Lake leaves after former President Donald Trump spoke at his Mar-a-Lago estate on April 4, 2023, in Palm Beach, Fla., after Trump was arraigned earlier in the day in New York City.  (AP Photo/Evan Vucci)

But the judge, in his new ruling, said none of that entitles the county to either get its legal fees paid by Lake or to punish her or her lawyers.

Mark Finchem, the unsuccessful Republican candidate for secretary of state, and his attorneys were not so lucky.

In a separate order Friday, Maricopa County Superior Court Judge Melissa Julian ordered Finchem to pay $40,565 in legal fees and costs to Adrian Fontes, the Democrat who defeated him in the November election. And Julian imposed a separate $7,434 penalty against Daniel McCauley, his attorney, for filing a lawsuit that she previously called “groundless and not brought in good faith.”

The different outcomes apparently come down to how each judge saw the claims and whether they believed there was a reasonable basis.

Thompson’s Conclusion

It starts with an Arizona law that generally requires judges to assess reasonable legal fees and expenses against an attorney or party who brings a claim “without substantial justification.”

Thompson, in his ruling in the Lake case, said that means a claim is “groundless” or, to put another way, that there was no rational arguments based on evidence or law to support it.

In this case, he said, Lake failed to establish her claim that the county systematically pushed mismatched ballots through for tabulation without following the required procedures. But that, the judge said, did not make it groundless.

“Even if her argument did not prevail, Lake, through her witnesses, presented facts consistent with and in support of her legal argument,” he wrote.

More to the point, Thompson said just because her attorneys made certain arguments about what the facts show in their closing arguments did not amount to the kind of misconduct that merits punishment.

“Opposing litigants in a heated dispute will naturally view the same evidence differently,” he said.

“The inferences one draws will be anathema to the other, and they may question each other’s good faith motivated simply by their conviction of their own cause and incomprehension at the conclusions of the other,” Thompson continued. And he said that “advocacy” was not sufficient to constitute misconduct.

The judge took pains on how his decision here differs from the actions by the Arizona Supreme Court earlier this month to impose a $2,000 sanction against Lake’s lawyers after reviewing one of Thompson’s earlier rulings.

In that case, Chief Justice Robert Brutinel said there was absolutely no factual basis for her attorneys to claim in her appeal to them of lower court rulings that it was “undisputed” that 35,563 unaccounted for ballots were added to the total in Maricopa County. And Brutinel said they repeated the same “false assertions” in subsequent legal filings.

Only thing is, he said, all that was not true. And Brutinel said it was unethical for lawyers to make such statements, meaning they had to be punished.

Lake is not done in her fight, vowing to appeal Thompson’s latest ruling that she failed to prove her claim that the county wasn’t properly verifying ballots.

Julian’s Conclusion

In the race for secretary of state, Julian reached a different conclusion than Thompson on the merits of the case brought by Finchem. She found that his legal effort to overturn the election results was “groundless and not brought in good faith.”

Melissa Julian

In filing suit, Finchem, who had been a Republican state representative from Oro Valley, alleged a series of issues he said affected the outcome of the race he lost to Fontes. That included the malfunctioning of tabulators in Maricopa County on Election Day which he said created delays for voters and concerns that some ballots may not have been counted.

But Julian, in an earlier ruling opening the door for Fontes to seek his fees and sanctions, said Finchem “offered no tether between the machine malfunctions and the outcome of the election he challenged here,” she wrote in the new order.

Then there was an affidavit from someone who Finchem called an expert who claimed that there were 80,000 potentially “missing votes.”

“Yet, Finchem lost the election he challenged by 120,208 votes,” the judge noted. “The margin was so significant that even if it were assumed that 80,000 votes were missing and that those votes would all have been cast in his favor, the result of the election would not have changed.”

In fact, Julian noted, Finchem withdrew his request to inspect ballots, suggesting he had no expectation that it would yield a favorable outcome.

“This demonstrates that Finchem challenged his election loss despite knowing that his claims regarding misconduct and procedural irregularities were insufficient under the law to sustain the contest,” the judge said.

Julian was no more impressed by Finchem’s argument that Hobbs interfered with the election with her request in January 2021 to remove a post that the secretary of state said provided incorrect information about voter rolls. He had said that Hobbs “cajoled the Twitter people into censoring possibly as much as 50% of her constituency.”

Only thing is, the judge said, Twitter is not an election official and its separate decision in October 2022 to temporarily suspend Finchem’s account is not a valid basis to challenge the outcome of an election.

“Moreover, even if it could be constructed as predicate misconduct for an election contest, Finchem does not explain how the effort to flag his Twitter account in January 2021 affected his election loss over 20 months later,” Julian said.

As to separate sanctions against McCauley, Julian noted that he admitted he decided to file the case after “a number of experienced litigators” declined to pursue it.

What that shows, she said, that he took the case after conceding that “a more experienced litigator with a larger staff was needed to prosecute the action competently.”

“This should have been a deterrent,” Julian wrote. “At a minimum, concerns raised by other attorneys should have prompted further investigation into the contest’s validity.”

And there’s something else that got the judge’s attention. She said McCauley made comments during oral arguments that he “expressed being less at risk of being disbarred as a result of the filing given his impending retirement.”

“This too supports sanctions as it demonstrates a conscious decision to pursue the matter despite appreciating that the contest had no legal merit,” the judge said.

There was no immediate response from Finchem to the new order.

But Finchem, in a statement in March when Julian first opened the door to sanctions, based the ruling as “contemptible judicial overreach” beyond the authority of state law and court rules.

“Judge Julian is punishing me for daring to assert my First Amendment protections, which constitutionally guarantee separation of powers, and has shredded statutory protections for contestants to challenge suspicious election results,” he said. “Judge Julian should be removed from the bench for her abuse of judicial authority.”


Ending mail-in ballots would bring ‘electoral chaos’

In this March 22, 2016 file photo, voters wait in line to cast their ballot in Arizona’s presidential primary election in Gilbert. (AP Photo/Matt York, File)

If the Arizona Supreme Court rules early voting is unconstitutional, Maricopa County could see ten times as many voters come to the polls and, elsewhere in the state, officials say it would lead to “electoral chaos.” 

Nearly 92% of those who voted in the 2020 election in the county voted early. Statewide, 80% of voters did. Maricopa County Recorder Stephen Richer said completely flipping the script and having those ballots cast on Election Day would fundamentally alter the assumptions made in the past few months in terms of getting ready for this year’s elections. 

“We had around 180,000 people vote on Election Day in November 2020, and if the lawsuit were found to be meritorious, I assume that number would go up to around 1.9 million,” Richer, a Republican, said. “That would be basically 10 times that we’d have to expand everything that goes into voting on Election Day.” 

Stephen Richer

The Arizona Republican Party, in a lawsuit filed in late February, argues that vote-by-mail and early in-person voting are unconstitutional and that the only constitutional way to vote is in-person, on Election Day. The AZGOP went straight to the state Supreme Court – its attorney Alexander Kolodin argued that the justices need to address the legality of early voting before the early voting period opens for the November general election. 

The state’s high court accepted the case. The justices said they would consider it without holding oral arguments. If they don’t nix early voting entirely, Kolodin asks that they constrain the current early voting rules, including striking down the state’s 31-year-old “no-excuse” early voting law, which allows Arizonans to vote early without having to provide a reason, and ditching ballot drop-boxes. 

Former Maricopa County Recorder Helen Purcell was in office in 1991 when the no-excuse early voting law was passed and in 1992 when it was implemented. Purcell said this is the first time she has heard the argument that the law is unconstitutional.  

“I don’t know of that ever being said before,” said Purcell, who held the office for 28 years before she was unseated by Adrian Fontes in 2016.  

Over the years, early voting gained popularity. 

“Like anything else, it started off at a slow pace, but everybody really got on board,” Purcell said. 

Helen Purcell (Photo by Michelle Chance/Cronkite News)

In 1992, the first general election after the no-excuse early voting law passed, 7.84% of Maricopa County voters voted early, according to the Maricopa County Elections Department. In 2008, the first general election after the Permanent Early Voting List law passed, that was up to 55%. In the 2016 general election, when there was more than one in-person early voting site for the first time, 78% of county voters cast early ballots. 

As early voting became county voters’ preference, Purcell said the county shifted accordingly. For example, the county reduced the number of precincts in part because fewer people were physically going to the polls.  

Reversing course and opening more polling locations would be tricky, Purcell said, regardless of whether they were done by precinct or used larger voting centers. 

“It is extremely difficult to find places for polling places, and particularly if you had to find very large ones,” she said. “Add to that the number of people it would take to staff those. Both of these are issues that would be difficult at best.” 

Purcell had issues with polling places that contributed to Fontes defeating her in 2016. Purcell’s office cut the number of polling places in the 2016 presidential preference election to 60, down from about 200 in 2012 and about 400 in 2008. Purcell had expected 71,000 people to vote in-person, but more than 83,000 did. She took the blame but also said at the time that a lack of state funding played a role in the decision. 

Richer said finding polling places and volunteers continues to be difficult. 

Beyond that, results would be delayed, Richer said. He said everything would be processed on a precinct-based tabulator, and all those memory cards would then have to be taken to central count tabulation, where about 90% of ballots are currently counted. 

He said his office has not explored the issue “at all.” 

“We haven’t given it much thought,” Richer said. “We’ll see what the Supreme Court rules, and whatever the law is, we will do our absolute best to comply with it.” 

Outside of Maricopa County, the impact of an end to mail-in voting would look different, but nonetheless significant. 

In Coconino County, a lawyer for the Board of Supervisors wrote that there would be “electoral chaos” if mail-in voting were curtailed.  

“The current configuration of precincts and their outfitting of personnel and supplies would be at risk of collapse if 93,393 voters were suddenly at the polls as opposed to the established, self-selected process of having 61,440 voters voting early,” the attorney wrote in an amicus brief filed on behalf of the supervisors. 

They also noted that a number of voters would face serious barriers to actually getting there: “Without early voting, many voters in the rural areas of the county may have to drive over 60 miles one way to get to their polling place.” 

Attorney General Mark Brnovich speaks at the 2020 Converge Tech Summit at the Waste Management Phoenix Open. (Photo by Gage Skidmore/Flickr)

And beyond election administration, Attorney General Mark Brnovich has used the case as an opportunity to suggest that the entire Elections Procedures Manual – the 500-page document that details how elections are administered in the state – might need to be thrown out. Even though Brnovich gave his stamp of approval to the manual in 2019, he filed an amicus brief urging the court to decide whether the 2019 manual might be invalid due to provisions that he argues go beyond the scope of its authority. 

Since the case addresses hot-button political issues, candidates and officials from both sides of the aisle have used amicus briefs and other actions to weigh in on the implications of the lawsuit. 

The Arizona Democratic Party is arguing that pulling the plug on mail-in voting would be nothing short of disenfranchisement for many voters – including demographic groups associated with Democrats.  

“Black, Hispanic, Native American, and young voters, are among those constituencies who are more likely to have their voting rights severely impeded, and in some cases, effectively withdrawn,” the party argued in a motion asking to be named as a co-defendant in the case. 

At a press conference on March 16, Democratic Party Chair Raquel Terán said, “Democrats will not let the Arizona Republicans take your right to vote away.”  

Kari Lake, a GOP gubernatorial candidate, filed an amicus brief supporting the suit and asserting that no-excuse mail-in voting is “not consistent with the Arizona Constitution.”  

Kris Mayes, a Democrat running for attorney general, filed an amicus brief criticizing the suit and arguing the state Constitution clearly allows for the practice. 

But reactions to the suit haven’t split perfectly along party lines. 

In a break from others in his party, the state’s highest-ranking Republican has also come out against the case. On March 15, Gov. Doug Ducey panned both the idea and the strategy behind the lawsuit, calling it “ill-conceived and poorly-crafted.” 

“It would undo the work of many Republican governors and secretaries of state over the past several decades, and I’m certain the way it’s written, it’s destined to fail,” he said. 

Ethics complaint against state justice dismissed

Maricopa County Attorney Bill Montgomery answers questions Friday from members of the Commission on Appellate Court Appointments. (Capitol Media Services photo by Howard Fischer)
Maricopa County Attorney Bill Montgomery answers questions July 26, 2019, from members of the Commission on Appellate Court Appointments. (Capitol Media Services photo by Howard Fischer)

Arizona Supreme Court Justice Bill Montgomery is no longer under investigation over whether he covered up misconduct from one of his top prosecutors at the Maricopa County Attorney’s Office. 

An Independent Bar Counsel took over the investigation, which launched one day before Gov. Doug Ducey appointed Montgomery to the high court in September 2019. 

“I have maintained that the complaint was frivolous and based on its timing, intended only to influence the appointment process. Nevertheless, it was the duty and responsibility of our Attorney Disciplinary System to thoroughly investigate the matter,” Montgomery said in a statement today. 

“I am pleased with the resolution and I will continue to devote my complete attention to serving the people of the State of Arizona as a Justice on the Arizona Supreme Court.”

He noted that the time to appeal the dismissal has already passed and the matter is “concluded.”

Meredith Vivona conducted the investigation and updated Capitol Times multiple times to say it was ongoing, but never provided any details. Vivona works for the Commission on Judicial Conduct and conducts investigations against judges who face ethics complaints.

Lawyers for convicted murderer Jodi Arias filed a complaint accusing Montgomery of covering up misconduct by Juan Martinez, who received a complaint of his own and was subsequently disbarred in July. He was also fired from the County Attorney’s Office, which he appealed and lost.

The complaint from attorney Karen Clark contended that Montgomery, as Maricopa County Attorney, unethically covered up misconduct by Martinez, who was a nationally known prosecutor, regarding Martinez’s activities in the murder trial of Arias.

Arias was sentenced to life behind bars after what had been a particularly high publicity and often lurid trial in which she was found guilty of the 2008 murder of sometime boyfriend Travis Alexander. He was shot in the head, had his throat slit, stabbed 27 times and left in the shower.

What led to this complaint against Montgomery was conduct by Martinez, both during the trial and elsewhere.

Clark charged that it was Montgomery’s legal obligation to supervise Martinez. She said he engaged in unethical conduct by blocking the release of records, including complaints by employees who claim they had been harassed by Martinez, records she said would have informed the public about his chief prosecutor’s actions.

There’s also the allegation that Montgomery authorized Martinez to write a book about the Arias trial before it ended, and do it during business hours when he was on the county payroll. And she said Montgomery gave access to case information to outsiders, including someone from the “Dr. Drew Show” on HLN.

Executions for 2 inmates draw nearer


The Arizona Supreme Court on Tuesday set deadlines for the state attorney general to file his motions for warrants of execution for two death row inmates. 

Those inmates, Frank Atwood and Clarence Dixon, are two of 21 people on Arizona’s death row who the state says have exhausted their appeals. 

The last execution in the state was nearly seven years ago, when in 2014 Joseph Wood took nearly two hours to die as he was given 15 doses of the sedative Midazolam and hydromorphone, a painkiller. 

The deadlines come after Arizona Attorney General Mark Brnovich made the unusual request for firm briefing schedules from the state’s high court in April. He said adhering to a set schedule would ensure the Arizona Department of Corrections, Rehabilitation and Reentry is able to comply with lethal drug testing and disclosure obligations. 

The court’s deadline for the motion for the warrant of execution for Atwood is 5 p.m. July 21. Atwood’s counsel will have until Aug. 4 to respond.  

For Dixon, Brnovich has until 5 p.m. Aug. 12 to file his motion for the execution warrant, and Dixon’s counsel has until Aug. 26 to respond.  

“An extension will not be granted absent highly extraordinary circumstances,” according to both orders. 

The court also denied a habeas corpus petition that Dixon submitted on his own behalf, saying his claims were “factually unsupported, meritless, and precluded.” 

Atwood’s attorneys say that the state is “leapfrogging” Atwood to the front of the line of death row inmates who’ve exhausted their appeals, noting that 12 concluded their appeals before Atwood. His attorney Joseph Perkovich said in a statement today that there are “persisting serious unanswered questions” about Atwood’s conviction and sentence and that the state should not seek an execution warrant.  

Perkovich also raised questions about the drugs the state plans to use in its executions and questioned the court’s level of scrutiny of the state’s execution plans.  

“The State of Arizona’s abysmal track record requires meaningful scrutiny of its plan but, so far, the state judiciary has shown no regard for the gravity of the power that the Attorney General intends to exercise,” Perkovich said in a statement.  

ADCRR paid $1.5 million for 1,000 vials of pentobarbital sodium salt in October 2020, according to a heavily redacted document obtained by The Guardian last month. That’s the same drug that was used in federal executions last year. An attempt to import sodium thiopental from India in 2015 ended with Customs and Border Protection seizing the drugs at Sky Harbor International Airport. 


Federal lawsuit challenges law to regulate signature gatherers


A new lawsuit seeks to strike down a statute that can invalidate otherwise legitimate and qualified signatures on an initiative petition.

Attorney Sarah Gonski said the requirement unconstitutionally “discourages the people of Arizona … from exercising their fundamental right to make law without consulting the Legislature.” She is asking U.S. District Court Judge Susan Bolton to block Secretary of State Katie Hobbs from enforcing the requirement.

Gonski may have an uphill battle.

The statute in question was upheld just this past year by the Arizona Supreme Court. But Gonski is trying a different path of attack, alleging that it runs afoul of protections in the U.S. Constitution.

Katie Hobbs
Katie Hobbs

Arizonans can propose their own constitutional amendments and laws by gathering enough signatures to put the issue directly to voters.

The 2014 law, which passed without significant debate, spells out that paid circulators and those who do not live in Arizona must first register with the Secretary of State or their signatures collected do not count.

More significant, it allows those trying to keep a measure off the ballot to subpoena those circulators. And if any circulator who has to register does not show up, then all the signatures that person gathered can be struck, potentially leaving the petition drive short of its goal.

One of the plaintiffs is Next Gen Climate Action Committee which pushed an unsuccessful measure last year to impose new renewable energy mandates on utilities. Gonski, arguing on behalf of the organization, said the statute has taken its toll, citing the experience of Jessica Miracle, a paid petition circulator on that measure.

Subpoenaed by foes of the measure, the lawsuit says Miracle could not attend because her children were sick, she did not have her own transportation to Phoenix, and no one would tell her clearly how many days she would need to be in Phoenix.

The result, according to Gonski, was that all of the 2,604 signatures Miracle gathered were invalidated.

Gonski said the law is not just unfair to circulators.

One of the plaintiffs in the lawsuit is Mary Katz, listed as a Phoenix resident and registered voter.

According to Gonski, Katz signed that renewable energy measure.

“But her signature was later invalidated when the circulator who witnessed it was unable to appear in court when subpoenaed,” the lawsuit states. And Gonski said Katz was not told until long after the election that her signature has been invalidated, meaning there was no way for her to go to court to tell the judge that it was, indeed, a valid signature.

The other key plaintiff in the case is Arizonans for Fair Lending which is currently circulating petitions to enact a law to outlaw title loans. Rod McLeod, who is managing that campaign, said the law has now become a tool for challengers to use to keep measures opposed by certain business interests from ever getting to voters.

He pointed out that challengers to the renewable energy measure issued subpoenas for about 1,180 circulators. McLeod said it was clear from the start there was no way they were going to question that many people in the one week the judge had set aside for trial.

In fact, Gonski said, out of the 913 circulators who appeared, 872 were sent home without ever being asked a single question about their work.

McLeod said challengers know that, using the massive subpoenas “just for intimidation” in hopes that some people would not show up, allowing all the signatures they gathered to be voided. And that could become an issue as his organization seeks to obtain the 237,645 valid signatures it needs by July 2, 2020, to put the title loan measure on the 2020 ballot.

The tactic of issuing subpoenas to disqualify signatures actually worked last year, though it didn’t involve nearly as many subpoenas.

At issue was an initiative to insert a “right-to-know” provision in the Arizona Constitution, requiring any group seeking to influence a political race or ballot measure to reveal the identity of anyone who contributed more than $10,000.

Sarah Gonski
Sarah Gonski

Challengers issued subpoenas for 15 circulators, leaving them with a security guard at an office building which had been used by a company that had hired the paid circulators. When none appeared, the judge disqualified the 8,824 signatures they had collected, leaving the petition drive short.

Attorney Kim Demarchi challenged the law in that case in a bid to put the “Outlaw Dark Money” measure on the ballot. She argued that a circulator’s signatures should be tossed only when there is a “valid objection” to the circulator or the “need for a circulator’s testimony.”

But Supreme Court Justice John Lopez, writing for the unanimous court, said the constitutional right of people to propose their own laws and constitutional amendments “is, and must be, subject to reasonable regulation.” And he said requiring circulators to appear in court and tossing their signatures if they don’t show “furthers the constitutional purpose of the initiative process by ensuring the integrity of signature gathering by reasonable means.”

Gonski, in her new lawsuit, argued to Bolton that the law is unfair and discriminatory. She pointed out that lawmakers decided the requirement to registering paid and out-of-state circulators and allowing their signatures to be struck if they don’t show up, applies only to ballot measures and not to nominating petitions for political candidates.

“There is no evidence to suggest that initiative petitions are more susceptible to fraud than candidate nomination petitions, nor that paid or out-of-state circulators are in need of special punishment above and beyond other circulators to compel their attendance in court,” she wrote.

A spokeswoman for Hobbs, who is the defendant in the case, said her office was reviewing the challenge.

The case presents an interesting situation for Hobbs: She actually voted for the measure when she was a state senator in 2014. In fact, all but two Senate Democrats supported it: Andrea Dalessandro of Green Valley and Robert Meza of Phoenix.

Correction: A previous version of this story erroneously reported that Arizonans for Fair Lending needed to enough signatures by July 2 to make the 2018 ballot. The group actually has until July 2, 2020, to make the 2020 ballot.

Fired child welfare workers lose bid to get back jobs


Five child welfare workers fired in the wake of a scandal about uninvestigated abuse complaints will not be getting their jobs back.

Without comment, the Arizona Supreme Court refused to disturb a 2016 ruling by the Court of Appeals, which concluded that the employees were all supervisors. What that means, the appellate court said, is that they were “at will” employees who, under state law could be fired for no reason at all.

The order, issued Monday, is likely the last gasp in the effort by Terry Woods, their attorney, to seek reinstatement or compensation for his clients who he said were made “scapegoats” for decisions made by upper management.

The case has its roots in the finding in late 2013 that almost one of every 12 child-abuse complaints reported to Child Protective Services that year was not investigated. Clarence Carter, whose Department of Economic Security at the time had purview over CPS, said his top investigator had found there had been an unofficial policy at the agency of marking certain complaints as “not investigated” even before any further inquiry was done.

Carter said the process started as a way to prioritize cases to deal with limited resources. But he said it  had accelerated to a point where nearly half of those 6,000 cases designated “NI” since 2009 occurred in 2013 despite state law that there be at least some investigation of every complaint that meets certain criteria.

An inquiry by the Department of Public Safety concluded that the five employees — Deborah Harper, Tracey Everitt, Janet Sabol, Michelle Parker and Jana Leineweber — were part of a special team charged with handling the backlog of CPS complaints. More to the point, Charles Flanagan, head of the newly created Division of Child Safety and Family Services, said they were instrumental in crafting the policy that resulted in ignoring the laws on mandatory investigation.

Flanagan said, though, the DPS report showed no evidence of malicious intent.

“It appears what they were trying to do is take some of the workload off the field,” he said, with abuse and neglect complaints coming in faster than caseworkers could handle them. And Flanagan said all that was complicated by cuts in the CPS budget.

But in the end, the five, who had been put on leave, were subsequently fired.

Woods, in filing suit in 2014, said the report which led to their termination was essentially a pre-determined fix.

“The conclusion was reached before the investigation was done,” he said of the DPS inquiry. He said once it became clear that many complaints had been marked as not investigated, a decision was made that someone had to be blamed.

“I think there’s a really good chance that a decision was made somewhere up the chain that some heads had to roll and that was the way this thing was going to end,” Woods said.

But the appellate judges said the only thing that matters is what Arizona law says about the rights of workers.

Appellate Judge Andrew Gould, writing for the court, said employees are considered to be “at will” and can be fired at any time unless there is an actual contract to the contrary. That’s not at issue here.

There are exceptions, he said, like when a firing runs afoul of public policy as set forth in statute. And Gould said people who are fired for refusing to violate a state law also have legal remedies.

But the judge rejected the claim by the fired workers that it is contrary to public policy to fire them because they were competently performing their jobs. He said all were supervisors who were not covered by state personnel rules then in effect.

The workers separately said they were directed by supervisors to use the “NI” designation on files. And they said if they had disobeyed that direction they would have been guilty of the crime of knowingly failing to perform a duty “which is required by law.”

Gould was unimpressed.

“No law required CPS, plaintiffs or their supervisors to designate abuse and neglect reports as ‘NI,’ ” he wrote. “As a result, plaintiffs would not have violated (the law) by refusing to apply the ‘NI’ designation, because the supervisor’s orders to use the ‘NI’ designation did not have the force of law.”

Woods did not dispute that conclusion. But he said the appellate judges should have determined that, as a matter of common law, it was wrong for the state to fire people who were basically doing what they were told to do.

He said much of the reason they were dismissed was because of the bad press over that “NI” designation.

“It was nothing new,” he said, and had been used off and on for a decade. And Woods insisted that the complaints were not just written off summarily but that they had been subject to a “triage” screening, with the supervisors deciding that further inquiry by caseworkers was not appropriate.

But what stuck in the public mind, he said, was marking cases as “NI.”

It read terrible in the newspaper,” Woods said.

Also getting the ax in 2014 was Sharon Sergent who was their supervisor and who in turn reported to Carter, director of the Department of Economic Security. She never sued.

Flanagan said there was no evidence that Carter knew of the unofficial policy. He would not answer, though, whether he thought Carter should have been aware of what was going on at the agency.

Carter submitted his resignation to Gov. Doug Ducey shortly after he took office in January 2015. His resignation letter made no mention of the scandal.

A month later Ducey fired Flanagan, saying he wanted a change in the “broken” child-welfare system.

Former DES head drops libel suit against state

In this Oct. 22, 2015, photo, former Department of Economic Security director Tim Jeffries stands outside his former office, adorned with a "Director J :)" sign. (Photo by Rachel Leingang, Arizona Capitol Times)
In this Oct. 22, 2015, photo, former Department of Economic Security director Tim Jeffries stands outside his former office, adorned with a “Director J :)” sign. (Photo by Rachel Leingang, Arizona Capitol Times)

The former director of the Department of Economic Security is dropping the libel lawsuit he filed against the state after he was fired.

Tim Jeffries told Capitol Media Services Tuesday he still believes that a report prepared by the Department of Public Safety about him and his conduct is filled with lies. These range from statements that he carried a gun on state property to the theft of state property, specifically ammunition from DES inventory.

But Jeffries said a successful lawsuit was dependent on being able to show not just that the report had lies but that those statements were part of an effort to discredit him for trying to expose waste and mismanagement.

Maricopa County Superior Court Judge Rosa Mroz would not allow him to pursue the documents. And last week the Arizona Supreme Court refused to disturb that ruling.

That, said Jeffries, effectively ended any reason to pursue the lawsuit.

“It’s a very, very high bar for a public official to prove defamation,” he said.

“Our whole thing was that the motive for defaming him was to keep him from disclosing that he had found corruption in the governor’s office and the reaction was to defame him, ” said attorney Tom Horne. But he said the court ruled that motive was irrelevant.

“So without the motive, the case lost a lot of its value,” he said.

Jeffries, who ran DES in 2015 and 2016 until he was forced out, said he was investigating Hacienda HealthCare over reports of poor care and fraudulent billings. He said that a sexual assault of a patient at the facility by an employee never would have happened had state officials closed the facility as he had recommended.

The issue with HEA+, he said, had to do with what was supposed to be a 24-month contract for $37 million to develop a social services eligibility system. When he was fired, Jeffries said, it already had run for 52 months at a cost of $142 million.

Jeffries said if he was guilty of anything it was “political naivete” that “people making a ton of money off the state, whether right or wrong, were going to start working against me.”

From the state’s perspective, however, that had nothing to do with his dismissal from his $215,250-a-year post.

Ducey fired Jeffries following a series of controversies, the last being reports that he flew to Nogales on a state plane to take several staffers out drinking at a restaurant during business hours. Jeffries was celebrating the fact these workers had agreed to become “at will” employees who could be fired for no reason.

The governor then directed DPS to inventory all weapons and ammunition at the agency. That resulted in the seizure of 55 handguns and nearly 89,000 rounds of ammunition stored in the basement.

According to DPS, the amount of ammunition was three or four times what a large police department might need in a year and “may reasonably be described as excessive.” Investigators also said they could not find about 4,000 rounds.

It was the statements in that report that Jeffries said were libelous.

In some ways, attorneys for the state never actually argued that what was in the report was true.

Instead, they told a judge that anyone filing a claim for libel under Arizona law must allege facts showing a false and defamatory statement concerning the plaintiff was published and that the statement resulted in injury.

“The allegations within the complaint, even taken as true, do not meet these required elements,” said attorney Daniel Dowd.

He said the DPS report presented individual interview accounts along with hundreds of pages of supporting documents on which its conclusions were based. Dowd said the report made note of when DPS received conflicting evidence, when it could not independently substantiate allegations, and when allegations were disputed.”

“DPS outlined the facts available to it, thus making it clear that the challenged statements represent its own interpretation of those facts and leaving the reader free to draw his own conclusions,” the attorney told a judge, adding that “DPS conclusions in the audit report are protected by the First Amendment and are not actionable as a matter of law.”

Jeffries was involved in several controversial issues at DES before the plane trip to Nogales that finally got him fired.

One involves revelations that Jeffries had fired close to 500 workers, including many who had previously received high evaluations and even raises. That led to allegations that the director was targeting women, minorities, older workers and gays.

It got to the point that Ducey removed Jeffries’ power to fire workers. And the governor even set up a process of allowing those who already were let go to petition to get their jobs back.

In 2016, Jeffries came under scrutiny for emailing staffers about his trip to Lourdes and offering to take their written “special intentions” to the holy shrine.

A month later Jeffries found himself back in the public eye for sending a message to all DES employees on a state-owned email list with a link to a story with arguments against Proposition 205. That measure, ultimately defeated, would have allowed for the recreational use of marijuana.

Jeffries made an unsuccessful bid for state Senate in 2018, coming in second in a three-way Republican primary to incumbent Michelle Ugenti-Rita.



Former state Supreme Court justice James Moeller dies

James Moeller
James Moeller

James Moeller, the author of several of precedent-setting decisions of the Arizona Supreme Court, has died.

The death last week was announced Thursday by a spokeswoman for the court.

Moeller was an attorney in private practice from 1959 until 1977, when he was appointed a Maricopa County Superior Court judge. A decade later, Gov. Evan Mecham named Moeller to the Supreme Court where he served until early 1998.

Among his ruling is one that declared Arizona’s 1988 voter-approved English-only amendment illegal because it violates federal constitutional rights.

Moeller, writing for the unanimous court, said the measure harms the ability of non-English-speaking people to obtain access to their government. He also concluded that the amendment limits the political speech of elected officials and public employees.

Moeller stressed that it was not suggesting that government agencies are required to communicate with residents in languages other than English. He said the only requirements are those imposed by federal law, such as mandates for voting materials to be provided in native languages.

And Moeller said the ruling doesn’t bar encouraging the use of English as a common language.

“But such efforts must not run afoul of constitutional requirements and individual liberties,” he wrote.

Moeller also authored a landmark ruling that opened the door for people who abuse the elderly to be sued by survivors for pain and suffering.

Until that decision, only the victims had the right to seek such damages. That provided an incentive for defendants to drag cases on in hopes that their victims might die, Moeller wrote.

He also wrote the majority 1996 ruling that restricted the ability of police to detain individuals for questioning.

Moeller said police need “articulable reasons” to stop and hold someone. Without that, he said, the person may walk away – or even run – and can cannot be arrested.

That ruling also meant that anything the police seized without such reasons cannot be introduced at trial, because those items were the product of an illegal search.

But Moeller also wound up on the losing end of some decisions, outvoted by the majority.

For example, the Supreme Court concluded that property from a marriage need not be divided equally when a couple divorces, deciding that factors including the duration of the union can be taken into account.

Moeller said that ruling was fraught with problems.

He also was in the minority in a 1994 ruling that declared Arizona’s school financing system unconstitutional because it creates wide disparities among school districts. The majority ordered lawmakers to come up with a new method of funding schools that is not heavily dependent on locally generated property taxes.

That, Moeller said, will result in centralized state school funding and endanger local control.

Moeller was not Mecham’s first pick for the high court.

The governor did not like any of the nominees on the list forwarded to him by the Commission on Appellate Court Appointments. But he chose Moeller, who was on the list, after Chief Justice Tom Zlaket then informed the governor that the selection would go to him if the governor did not make a choice.

Gay discrimination case could turn on question of message conveyed

Brush & Nib's Joanna Duka (left) and Breanna Duka outside the Arizona Supreme Court building. (PHOTO BY DILLON ROSENBLATT/ARIZONA CAPITOL TIMES)
Brush & Nib’s Joanna Duka (left) and Breanna Koski outside the Arizona Supreme Court building. (PHOTO BY DILLON ROSENBLATT/ARIZONA CAPITOL TIMES)

The oral arguments the Arizona Supreme Court heard today on a Phoenix anti-discrimination ordinance centered on what a message conveys.

The justices hammered the two sides of the Brush & Nib Studio v. City of Phoenix case with questions in front of a packed house of spectators including a downstairs room filled with more than one hundred more people.

On one side is Alliance Defending Freedom’s Jonathan Scruggs representing Joanna Duka and Breanna Koski of Brush & Nib Studio. On the other is Eric Fraser representing the city.

Attorney Jonathan Scruggs, who represents Brush & Nib owners Joanna Duka and Breanna Koski, said if a male-female couple named Pat and Terry — Chief Justice Scott Bales’ hypothetical example — have a wedding invitation that is identical to a same-sex couple with the same names, the message conveyed is still different.

“It sends a celebratory message about that wedding,” Scruggs said about the example of a same-sex couple.

Duka and Koski are devout Christians who believe their work is inextricably related to their religious beliefs. They strongly believe a marriage is meant to be between a man and a woman, and argue they cannot separate their beliefs from their work.

Given their religious background, they would not endorse a message of matrimony between a same-sex couple even if every single detail on an invitation they create is identical to that of a heterosexual couple seeking marriage.

If the court affirms lower-court decisions, the studio owners would be facing $2,500 in fines for each day in violation of the law plus up to six months in jail. They would be the first people to be incarcerated in this type of case. All the others faced civil penalties.

Alliance Defending Freedom Senior Counsel Jonathan Scruggs speaks to the press after the Supreme Court oral arguments in the Brush & Nib case. (PHOTO BY DILLON ROSENBLATT/ARIZONA CAPITOL TIMES)
Alliance Defending Freedom Senior Counsel Jonathan Scruggs speaks to the press after the Supreme Court oral arguments in the Brush & Nib case. (PHOTO BY DILLON ROSENBLATT/ARIZONA CAPITOL TIMES)

Scruggs, who is with Alliance Defending Freedom, a Christian organization that advocates for religious freedom, sanctity of life and marriage and family, used an equivalency to an LGBT artist asked to create something that would defend marriage for a Catholic church event, or a Muslim artist that “might be willing to serve Christians … but not Easter.”

The case began in May 2016 when attorneys for the studio filed a lawsuit in Maricopa County Superior Court. The studio’s owners claimed the city’s anti-discrimination laws violate their artistic and religious freedom.

Scottsdale-based ADF, also represented Jack Phillips in the Masterpiece Cakeshop case commonly known as the “gay wedding cake” case, which reached the U.S. Supreme Court in 2017. Phillips was cited for refusing to make a wedding cake for a same-sex couple, and the court ruled in his favor 7-2 that he had not received a fair hearing from the Colorado Civil Rights Commission, but did not rule on any other aspect of the case.

It’s not just about weddings. Scruggs said the studio also wouldn’t create art for a same-sex anniversary or memorial service. But he did say, “the [studio owners] would be happy to work with an LGBT couple” for a painting that would be used for home decor, or to design a business; just not an event that would celebrate a same-sex couple.

Justice John Pelander asked both, “who determines what’s message based and what isn’t. And who determines whether it’s a message-based objection.”

Neither the city nor ADF gave a clear answer to that question.

The city kept repeating the same arguments used in the lower courts, which have ruled in their favor, but the Supreme Court did poke one hole in the argument.

Bales asked Fraser if it would be consistent with the city statute if somebody who has religious belief that only men and women should be married created wedding invitations that on the top reads “marriage is only between a man and a woman.” Fraser replied, “they could,” as long as they sold it to any couple.

Fraser also said they can post derogatory or offensive statements publicly, as long as they don’t say they refuse to sell items that would align with discrimination.

In October 2017, Maricopa County Superior Court ruled that the Phoenix City ordinance does not violate the studio’s right to free speech or freedom of religion.

Adopted in 2013, the ordinance prohibits discrimination based on race, sex, color, religion, national origin, sexual orientation, marital status, gender identity or expression, or disability. It applied to both the general public and businesses that offer services.

In 2018, the Arizona Court of Appeals then affirmed the decision that Brush & Nib cannot legally refuse to sell their custom-made products to same-sex couples. The ruling also stipulated they can’t post any statement to their website discriminating against same-sex couples. In November 2018, the Arizona Supreme Court agreed to hear the case.

The anti-discrimination ordinance has reached national attention and local.

Former Phoenix Mayor Greg Stanton tweeted in late December, “our Phoenix Non Discrimination Ordinance makes clear we will not tolerate disparate treatment of our LGBTQ residents. The ordinance has the added benefit of making Phoenix more economically competitive. Our leaders should support, not undercut, human rights,” in response to Attorney General Mark Brnovich urging the Supreme Court to block Phoenix from enforcing the ordinance against Brush & Nib.

Brnovich at the time said, siding with Phoenix in the legal fight amounts to “coercing artists to use their talents to create government-sponsored messages.”

The company specializes in hand-painting and lettering for weddings and other special events. Koski is the artist who brings the Brush part of the company’s name, while Duka, the calligrapher, makes up the Nib portion. The company was founded in 2015 and operates solely online. There is no brick and mortar location.

Vice Chief Justice Robert Brutinel recused himself from the case. Division II Court of Appeals Judge Christopher Staring sat in for him.

The court heard oral arguments today, but a decision won’t be made for what could be months.

Gay discrimination case pending in Supreme Court unusually long time

Breanna Koski, left, and Joanna Duka of Brush & Nib Studio are challenging a Phoenix ordinance prohibiting discrimination on the basis of sexual orientation. They do not want to prepare custom wedding invitations and other products for same-sex nuptials. (Photo courtesy Alliance Defending Freedom)
Breanna Koski, left, and Joanna Duka of Brush & Nib Studio are challenging a Phoenix ordinance prohibiting discrimination on the basis of sexual orientation. They do not want to prepare custom wedding invitations and other products for same-sex nuptials. (Photo courtesy Alliance Defending Freedom)

Dissent among Arizona Supreme Court justices in a gay discrimination case could be why they still have not issued a ruling since oral arguments six months ago, an Arizona State University law professor said.

The state’s highest court does not have any rules requiring it to reach a decision within an allotted time, said ASU law professor Paul Bender, unlike the U.S. Supreme Court, which has to decide cases before the end of the term in June.

Because of this, the Arizona court can theoretically hold off on a decision forever.

It heard the arguments in Brush & Nib v. City of Phoenix on January 22 to decide whether cities can force businesses to do work for those whose views, practices or lifestyles conflict with the owners’ religious beliefs.

Paul Bender
Paul Bender

The case most immediately affects the validity of a Phoenix ordinance prohibiting discrimination on the basis of sexual orientation. It is being challenged by two women who do not want to prepare custom wedding invitations and other products for same-sex nuptials.

Bender, who is not involved in the case, said that after considering the arguments he did not have any strong feelings on what the court would decide, and that might play into why the court is taking longer than usual to reach a decision.

“This seems like a long time, but on the other hand, it’s a difficult case for them,” Bender said. “My guess is there’s dissent and that (typically) holds things up.”

Bender said when a majority opinion is reached it then gets circulated and a justice might not agree with all or even parts of it. Then, that part gets circulated back around leaving an opportunity for someone to either join the dissent or maybe change their mind entirely.

“That could be what’s going on here,” he said.

The Supreme Court has reached a decision in 14 cases since it heard the Brush & Nib arguments in January, with an average of 86.6 days between argument and when the opinion was released. This includes eight cases that had arguments after Brush & Nib and one that happened the same day on January 22.

The longest length of time in one of those 14 cases was City of Surprise v. ACC/Lake Pleasant, which took 175 days. The shortest time is tied between two cases heard on the same day – both took just 21 days to reach a decision.

As of July 26, Brush & Nib has taken 185 days with no apparent end in sight.

Bender says while six months is not usual, it’s also not unusual.

“It probably happens every couple of years that they hold a case this long,” he said.

The Supreme Court has a bit of a tradition where it typically tries for a unanimous decision, and it usually works out that way, but has changed since the court expanded from five to seven justices in 2016, Bender said.

“Things take longer with seven (justices) because the more people who want to express an opinion means there’s much more chance of dissent,” he said.

Bender also notes what could be taking a while is that this case might be used as a model decision nationally given similar cases that have come before the U.S. Supreme Court without a decision being reached. Most notably, Masterpiece Cakeshop v. Colorado Civil Rights Commission, where the court didn’t rule on the anti-discrimination aspect.

Bender said if this case reaches the end of September with no decision then that will be “an unusually long time.”

“Maybe somebody is still trying to make up their mind,” he said.

Goldwater Institute leader stepping down after 16 years


The Goldwater Institute is losing its top staffer.

CEO Darcy Olsen spent 16 years leading the conservative think tank, but is leaving the organization effective today, according to spokeswoman Starlee Coleman.

Olsen cited family needs for leaving the Goldwater Institute — she is a foster mother who has adopted three infants who have  stayed in her home.

“I’m looking forward to charting a new course that gives me more time with my family and involves greater advocacy for children,” Olsen said in a statement. “My first love has always been to vindicate the rights of children and the innocent, and I look forward to concentrating on this work.”

Before joining Goldwater, she was the education policy director at the Washington D.C.-based Cato Institute, a libertarian think-tank.

Olsen made the decision in 2007 to create the Scharf-Norton Center for Constitutional Litigation, which transformed the Goldwater Institute from an intellectual heavyweight to a legal powerhouse.

It has since won major cases that will change the political landscape both locally and nationally, including the CityNorth case in which the Arizona Supreme Court ruled that government subsidies for private development violate the Constitution, unless the developer offers benefits of equal value in return.

Olsen spearheaded the Goldwater Institute’s efforts in passing “Right to Try” laws, which allow drug makers and people who are terminally ill to bypass the federal government and use unproven drugs. Laws to that effect have been adopted in 37 state.

Olsen literally wrote the book on the Goldwater-pushed movement: “The Right to Try: How the Federal Government Prevents Americans from Getting the Lifesaving Treatments They Need.”

The Goldwater Institute did not say why Olsen is leaving, whether her departure was voluntary, or whether she has a new position elsewhere. Coleman declined to comment on the reason for Olsen’s departure.

Norman McClelland, a founding member of the Goldwater Institute, praised Olsen’s leadership. Sixteen years ago, the institute boasted just a few dozen members and a budget of roughly $1 million. Now Goldwater boasts thousands of members and revenues of more than $7 million.

“Darcy has been a formidable CEO who established the Goldwater Institute brand through vision and grit,” McClelland said in a statement. “Her leadership has shaped the Institute into the powerhouse it is today.”

Olsen is the second high-profile departure from the Goldwater Institute in as many years. Clint Bolick, formerly the institute’s lead attorney, was appointed to the Arizona Supreme Court in 2016.

Victor Riches, a former deputy chief of staff to Gov. Doug Ducey and the president of the Goldwater Institute since 2016, will assume the duties of CEO.

Grab bag of laws voided by Supreme Court

When the Arizona Supreme Court slapped down how lawmakers approve “budget reconciliation” bills on November 2, they quashed more than the ban on schools requiring masks of faculty and students. 

With its three-sentence order, the justices also removed a similar prohibition against cities and counties imposing mask mandates on those in public and charter schools. 

Also gone is the threat of school teachers being sued by the attorney general on claims that they used public resources, ranging from email or work time, to “organize, plan or execute any activity that impedes or prevents a public school from operating for any period of time.” That was aimed at efforts to get teachers to stay home during Covid outbreaks at districts that don’t mandate face coverings. 

Because of the Supreme Court ruling, universities are not precluded from requiring those on campus to be vaccinated against Covid or get tested regularly, as lawmakers had voted.  

But there’s so much more that went up in a legal puff of smoke, from how elections are run to what happens when the next governor declares a state of emergency. 

And it’s all because the court declared that lawmakers  and Gov. Doug Ducey who signed the bills  played fast and loose with the Arizona Constitution. 

The justices, without comment, upheld a lower court ruling that four separate reconciliation bills violated constitutional requirements that they have a title that adequately informs lawmakers and the public of what changes in statute were being proposed. That resulted in a dozen or so challenged provisions being voided. 

But the justices also found that one of the bills  labeled simply “relating to state budget procedures”  was so chock full of unrelated items that it also ran afoul of another constitutional requirement that all measures be limited to a single subject and related matters. So they declared the entire act nullified. 

For example, there were several provisions on elections, like allowing the state Game and Fish Department to register voters and mandating that there be specific kinds of paper and fraud countermeasures on future ballots. 

Yet the same measure, SB1819, also sought to preclude the kind of ongoing emergency declaration that Ducey declared on March 11, 2020, and still exists. It would have limited declarations to 30 days, with a maximum of three extensions and a requirement to get legislative OK for anything beyond 120 days. 

But in a nod to the governor, who had to sign the legislation, that provision would not have taken effect until 2023 after Ducey leaves office. 

Also stuffed into SB1819 was a task force to study “unreported in-kind contributions,” setting aside $500,000 based on questions raised by some GOP lawmakers who wanted to see if social media platforms were influencing elections. 

There also was establishment of a “major events fund” to help underwrite the costs of the 2023 Super Bowl and other sports events, setting up a panel to study whether there should be a Southern Arizona Regional Sports Authority and even a provision removing the legal definition of what constitutes a “newspaper,” a maneuver that could allow free publications to accept and run legal ads. 

There’s more. 

Among the not-to-be laws was what some legislators referred to as a ban on teaching “critical race theory.” 

That phrase was not in the legislation. And, in fact, what is critical race theory actually goes to the issue of whether there is inherent racism that effectively is baked into society and continues to have an effect. 

But that didn’t stop proponents from seeking to declare it illegal to bar teaching that an individual, by virtue of race, ethnicity or sex, bears responsibility for actions committed by others of the same race, ethnicity or sex, or from teaching that any individual should feel “discomfort, guilt, anguish or other form of psychological distress because of their race, ethnicity or sex.” 

But there’s so much more in the bills that the Supreme Court voided: 

  • Precluding the state or local governments from establishing a Covid “vaccine passport” or requiring any business to obtain proof of vaccination status of patrons. 
  • Exempting the Department of Public Safety from certain oversight requirements when it purchases body cameras for officers. 
  • Stripping the secretary of state of the ability to defend election laws  but only through 2022, the time that Democrat Katie Hobbs leaves office. 
  • Moving oversight of the State Museum from the secretary of state to the Legislative Council. 
  • Allowing a condominium to be sold only if all the owners agree. 
  • Setting up an “election integrity fund” to finance election security, cybersecurity measures and any post-election hand counts. 
  • Prohibiting the Arizona Lottery from advertising at a professional sporting event. 
  • Permitting the auditor general, an arm of the Legislature, to review the process used to maintain early voter lists  but only in Maricopa County; 
  • Petitioning the federal Election Assistance Commission to allow the state to require proof of citizenship on registration forms that allow people to vote only in federal elections. 
  • Reimbursing liabilities of the Department of Forestry and Fire Management in excess of $250,000. 
  • Converting the permits for dog racing, which was banned years ago, into permits for harness racing, something that does not now exist in Arizona. 
  • Setting up a special Senate committee to review the findings of the audit of the 2020 election. 
  • Establishing a “state permitting dashboard” to track authorization for public projects. 
  • Changing the duties and responsibilities of the Study Committee on Missing and Murdered Indigenous People. 

 Editor’s note: A previous version of this story erroneously reported that a provision in a budget bill that allows workers to get a religious exemption from a vaccination without providing proof was voided. That provision was actually not challenged in court. 


Group tries to dodge fine for campaign finance law violation


A group that spent $260,000 attacking a 2014 foe of Doug Ducey in his first gubernatorial race is trying again to escape paying a fine for violating state campaign finance laws.

Attorneys for the Legacy Foundation Action Fund contend that the Citizens Clean Elections Commission lacked the power to impose a $96,000 fine for the commercials targeting former Mesa Mayor Scott Smith. They say there was no proof that the ad was done to advance the political fortunes of anyone else in the Republican gubernatorial primary.

Beyond that, the lawyers contend that the commission lacks the authority to enforce the campaign finance laws.

Christopher Whitten
Christopher Whitten

So far that argument has not held water. Maricopa County Superior Court Judge Christopher Whitten ruled in August that the lawyers for the fund were misreading the law.

Now the fund is seeking intervention by the state Court of Appeals.

This is actually the second time the Legacy Foundation Action Fund has challenged the ability of the commission to police campaign funding. An earlier claim was thrown out by the Arizona Supreme Court after the justices ruled that the fund waited too long to appeal the fine.

But in that ruling, Justice Clint Bolick said the group was free to pursue other, unspecified legal challenges. That led to the current litigation.

The case stems from a commercial that ran in early 2014 when Smith was pursuing the Republican gubernatorial nomination.

Produced by the Legacy Foundation Action Fund, it noted that Smith, who was mayor of Mesa, also was president of the U.S. Conference of Mayors. More to the point, it focused on some of the stands the conference had taken.

“They fully endorsed Obamacare from the start,” the commercial said. And it said the conference supported the Obama administration’s efforts to regulate carbon emissions and “backed the president’s proposal to limit our Second Amendment rights.”

On the screen were photos of Smith placed next to pictures of a smiling Obama.

Jason Torchinsky, one of the attorneys for the fund, argued there was nothing improper about the commercial.

More to the point, he said it was not designed to influence the election but simply to educate Arizonans about Smith. Torchinsky noted that the ad made no reference to Smith’s race against Ducey nor even to Smith’s status as a candidate.

The Clean Elections Commission, however, concluded otherwise, ruling that its true purpose was to affect the GOP gubernatorial primary. And what that meant, the commission concluded, was that the Legacy Foundation Action Fund, by virtue of attempting to influence an election, was required to publicly disclose the spending, which it did not.

That failure led to the $96,000 penalty – a penalty that the commission is still trying to get paid.

Now attorneys for the Legacy Foundation Action Fund are raising new arguments about why it was never required to disclose the spending and, by extension, why it doesn’t have to pay the fine.

Some of this is a rehash of the original arguments.

Attorney Brian Bergin argues that the commission, in concluding the purpose of the commercial was to affect the 2014 GOP primary, ignored the plain language of what viewers saw.

“The Arizona advertisement discusses issues: government spending, Second Amendment rights, and the regulation of carbon emissions,” Bergin wrote, while telling viewers the policies “are wrong for Mesa” and urging them to call Smith “and tell him to support policies that are good for Mesa.”

Tom Collins
Tom Collins

But Tom Collins, the commission’s executive director, said that ignores other facts.

He pointed out that the positions taken by the mayors’ organization – the ones that Legacy Foundation said it was educating Mesa voters about – all were taken before Smith became president of the group.

And then there was the fact that by the time the commercials aired Smith was no longer its president. But he was running for governor.

“Taken together, allegations (about Smith) that were not correct, the timing of the ad and other factors, there’s really no way to see the ad as anything other than what it is: an attack ad designed to urge folks to vote against Mayor Smith for the Republican gubernatorial nomination in 2014 because he was ‘Obama’s favorite mayor,’ ” Collins said.

And Whitten said he was legally bound to accept the commission’s findings about the purpose of the commercial.

Bergin also says there’s a key flaw in the commission’s case against his client. He contends that the commission is required to identify the candidate that the commercial was made “by or on behalf of.”

“Legacy is certainly not a candidate and was not working “on behalf of” any candidate,” Bergin said.

Whitten, in the ruling now being appealed, did acknowledge that the commission never identified on whose behalf Legacy was spending the money. But he said there’s no such requirement in the law.

“The statute does not explicitly demand names,” the judge wrote.

The trial judge also rebuffed Bergin’s contention that only the secretary of state has the power to enforce campaign laws and not the commission, which was created by voters in 1998.

“The purpose of the CCEC is to ensure that election laws are enforced without favoritism by partisan officials,” Whitten wrote.

No date has been set for the Court of Appeals to hear the case.

Groups take voter initiative restriction to state Supreme Court


Several organizations are asking the Arizona Supreme Court to void a law they say will make it more difficult for groups like theirs to put initiatives on the ballot.

But they have to get the justices to let them sue in the first place.

In new legal filings, attorney Roopali Desai is attacking the 2017 law that says all voter-proposed ballot measures must be in “strict compliance” with every election law. By contrast, the law up until that point, as interpreted by the courts, has required only “substantial compliance.”

That distinction is critical. It means that minor errors that courts might consider innocent, like signatures on petitions outside the lines, erroneous dates entered by signers, and differences in type sizes and margins, would require judges to throw out signatures and potentially entire sheets of signers.

What the new law has done, Desai said, is chilled efforts by groups to craft their own initiatives.

But Desai has yet to get the chance to make that argument.

A trial judge and the state Court of Appeals threw out the case, saying that the new law has yet to be enforced.

More to the point, the judges said no initiative is in danger of being thrown off the ballot for failure to comply with the new standards. And that, the judge said, means the case is not legally “ripe” for them to decide.

Desai hopes to convince the Supreme Court otherwise.

At the heart of the fight is the fact that many business interests and Republican legislators who support them have never liked the fact that the Arizona Constitution allows voters to craft and enact their own laws. That ability has led to things like a ban on gestation crates for pigs, a ban on leg-hold traps on state lands, allowing patients to use marijuana for medical purposes, and just two years ago, an increase in the state minimum wage.

It was that last measure, approved by voters on a 3-2 margin, despite strong opposition from the business community, that led GOP lawmakers to approve the stricter standards.

Desai contends the move illegally impairs the constitutional right of voters to propose their own laws.

“Every Arizona citizen is harmed by this legislative power grab,” she said in her filings with the state high court. “This law would result in making virtually every aspect of the initiative process more difficult and expensive.”

And Desai told the justices they should not balk at addressing that issue now simply because no initiative currently is in danger of being tossed from the ballot because of the new requirement.

“The mere threat of enforcement of an unconstitutional law that infringes upon a fundamental constitutional right is sufficient to confer ripeness,” she wrote.

Desai said it would be wrong — and an unconstitutional violation of rights — if initiative organizers had to wait until they were in danger of having a measure thrown off the ballot before challenging a law they contend interferes with their legal ability to craft their own laws.

For example, she said, what if the Legislature decided that initiative petitions can be circulated only after the sponsoring organization submitted a $5 million filing fee.

“If such a statute unconstitutionally hinders the ability to pursue an initiative, then it is already depriving the plaintiffs — and all other Arizonans — of their constitutional rights,” Desai wrote. She said it should not be necessary for a group to prove that they would be unable to raise that filing fee.

The same, she said, is true here, with the stricter requirements meaning that groups seeking to put measures on the ballot would have to spend additional money in getting legal advice and in training and securing additional circulators. And Desai said just the additional doubt about whether a measure might be voided for some technical violation of the new standard will make it difficult for organizers to raise money for a petition drive.

“Every advocacy group — and every Arizonan — that decides not to bring an initiative because it fears it cannot overcome the massive burdens that a strict compliance standard causes is already suffering a constitutional injury,” Desai wrote in asking the justices to consider the issue. “Every Arizonan who is deprived of the ability to vote on initiatives that ‘die on the vine’ due to such factors is already suffering a constitutional injury.”

Anyway, Desai said, cases like this, where the question of what standards can be enforced on voter-proposed ballot measures, are “issues of great public importance that are likely to recur.”

She also said the issue is not academic for her clients — the people who want the new law voided — because each of them has been involved in the past in putting measures on the ballot. They include the Animal Defense League of Arizona, Planned Parenthood Advocates of Arizona, the Arizona Advocacy Network, and Friends of ASBA, short for the Arizona School Boards Association.

The justices have not set a date to consider the petition.

Groups weigh in on case to allow online petitions for ballot measures

The way the mayors of Tucson, Phoenix and Flagstaff see it, when the state’s founders required initiative petitions to be filed as “sheets,” they didn’t necessarily mean paper.

In a new legal filing, the attorney for the mayors is telling the Arizona Supreme Court that nowhere in the Arizona Constitution does it require that signatures be gathered on something people can hold in their hands. And attorney Shawn Aiken said what that means is that the court is free — and his clients believe should — give the go-ahead for groups seeking to put issues on the November ballot to use an electronic system for collecting signatures.

The mayors aren’t the only ones urging the justices to permit online signature gathering, at least during the pandemic.

Regina Romero
Regina Romero

In a separate legal filing, the attorney for the Professional Fire Fighters of Arizona and others is arguing that requiring petition circulators to make face-to-face contact with would be signers both endangers the firefighters and paramedics who might be called on to treat these people if they contract COVID-19. And if nothing else, Danny Adelman said if circulators decide to try to continue making personal contact they will be using up gloves and masks that are in short supply for the first responders who need them.

For the moment, the question of the future of initiative campaigns this year rests with the state’s high court. That’s because the only other challenge to the requirement for in-person petition circulation was tossed April 17 by a federal judge, though an appeal is planned.

Central to the case is the constitutional right of voters to propose their own laws and constitutional amendments.

Putting issues on the ballot requires the valid signatures of a certain number of voters, with the total based on the turnout in the last gubernatorial election. This year that figure is 237,645 for statutory changes and 356,467 for constitutional amendments.

None of that is in dispute. Nor is the July 2 deadline for submission.

What is in dispute is the form of those petitions given the problems in the traditional face-to-face methods of collection.

The Arizona Constitution requires “each sheet” containing signatures to be attached to a full and correct copy of the proposal. It also says that “every sheet of every such petition” must be verified by the person who circulated it.

Coral Evans (Photo by Jenna Miller)
Coral Evans (Photo by Jenna Miller)

Aiken, representing Tucson Mayor Regina Romero, Kate Gallego of Phoenix and Coral Evans of Flagstaff, said there is no mention of the word “paper.”

What makes that significant, he told the justices, is that the framers of the Arizona Constitution did, in fact, use the word “paper” when setting out the requirements for recall petitions.

“Where, as here, different language is used in different constitutional provisions, we must infer that a different meaning was intended,” Aiken wrote. “Under a straightforward reading of the text …therefore, the constitution permits initiative signatures on both electronic and paper ‘sheets.’ ”

Aiken does not argue that the people who crafted the constitution when Arizona became a state in 1912 foresaw the internet. But he said it would be wrong to interpret the requirement for petitions on “sheets” to mean on a piece of paper someone can hold.

Kate Gallego
Kate Gallego

“I think that’s over-reading the text” of the constitution,” Aiken told Capitol Media Services.

“A sheet in front of me — and I’m looking at a PDF document in front o