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Tag: Arizona Supreme Court

Arizona Supreme Court to weigh in on election manual makeover

Key Points: 
  • State high court weighs whether EPM must follow Administrative Procedures Act
  • Republicans argue EPM lacks exemption from full administrative process
  • State warns compliance could complicate election administration statewide

The Arizona Supreme Court is now weighing whether to require the creation of the Elections Procedures Manual to comply with the state’s statutory rulemaking scheme.

In argument today, justices delved into how, or whether, the law requiring an election rulebook every odd year collides or conflicts with the Administrative Procedures Act. 

The Secretary of State maintains that the creation of the EPM is self-contained, with a process already defined in state law. In contrast, the Republican National Committee, the Republican Party of Arizona and the Yavapai County Republican Party contend there is no exemption from a more intensive process prescribed to agencies in the APA. 

Arguments today were the culmination of a long legal battle over the 2023 Elections Procedures Manual. 

In early 2024, following the approval of the EPM, the Republican National Committee, Republican Party of Arizona, Yavapai County Republican Party and a voter sued, initially alleging a violation of the Administrative Procedures Act, given a failure by Secretary of State Adrian Fontes to offer a 30-day public comment period. 

The superior court initially rejected the claim, finding the statute governing the EPM independently assigned procedures for promulgating the elections guidebook.  

But, in March, the Arizona Court of Appeals ruled the EPM must be brought into compliance with the state’s laws on administrative rulemaking and found the 2023 manual to be invalid due to the  failure to provide a 30 day public comment period. 

Under the APA, the Secretary of State would have to publish a notice of proposed rulemaking, accept public comment for at least thirty days, and hold oral proceedings on provisions upon request, with an additional 30 day notice. The process would start again if any substantial changes come about. 

And, before finalizing the EPM, the secretary would have to submit it to either the Governor’s Regulatory Review Council or the attorney general within 120 days after public comment closes.

Fontes appealed to the state high court, claiming that crafting an EPM under the APA would be a difficult, if not impossible, feat, given the requirements for drafting a manual on Oct. 1 of every odd-numbered year. 

In arguments today, Justice Clint Bolick asked Solicitor General Joshua Bendor to what extent Secretary of  State Adrian Fontes has followed the APA in putting together the 2025 EPM. 

Bendor said Fontes took the principal step of extending the public comment period to 30 days to address the central issue raised by the Arizona Court of Appeals. 

Justice William Montgomery then asked where in statute the secretary maintains the authority to take public comment under the EPM statute. 

“If we’re going to read these statutes in such a way as to be very clear about what must and must not be done, what do we do with actions taken under 16-452, that aren’t required or aren’t provided for that we find within the APA?” Montgomery said. 

Bendor noted there was no explicit guidance beyond consulting with counties, leaving it to Secretaries of State to decide best practices in consultation and public comment. 

Justice Kathryn King asked whether the lack of a requirement for public comment could pose a constitutional concern by cutting off the public’s ability to provide comment, but  Bendor noted the constitutional concern did not change the statutory analysis at hand. 

Justice Maria Elena Cruz then inquired about the practical impact of requiring APA compliance. 

Bendor said it would be “especially problematic” for smaller counties with more limited election staff and noted the APA requirement for additional rounds of public comment could shrink counties’ input in the EPM. 

“The Secretary of State spends a tremendous amount of time consulting with the counties throughout the year, chapter by chapter, oral feedback, written feedback, talking to them about the public comment, really trying to do a document that’s helpful to them,” Bendor said. “That would be harder under the respondents’ interpretation.” 

He said the attorney general and the governor could also see their roles diminished due to a lack of time to make substantial changes without the 30 days of public comment. And under the APA, Bendor said the Governor’s Regulatory Review Council would then have “tremendous authority over election law.”

In turning to the RNC, AZGOP and Yavapai County GOP’s argument, Bolick pressed attorney Christopher Murray on the EPM’s specific dates, which differ from APA procedures. 

“Aren’t these really just two ships sailing separately in the night?” Bolick asked. 

Murray said the APA would have to trump the EPM timeline under state law. 

“There is no conflict between 16-452 and the APA,” Murray said. “There is inconvenience.” 

Murray urged the court to consider how the EPM has grown in the public consciousness and in scope in terms of the law.  

“The EPM does a whole lot more now than it ever did. And the EPM, by doing a whole lot more, affects the rights of far more people than it ever did before, and it affects far more questions around election law,” Murray said. “So I would say that sort of development actually points to, well, why? Why does the APA need to apply this? Right? Because it’s essentially a 260 page manual of laws of general applicability.” 

In rebuttal, Bendor said requiring the EPM to come into compliance with the APA would “pose significant risks of harm and confusion to the administration of elections in Arizona,” and said he did not believe the plaintiffs “grappled with the risks that their arguments pose.” 

Timmer then asked, “Are we to grapple with the risks? A lot of this is policy. If the Legislature wants to have APA and the EPM, that’s really not for us to say that that’s a poor idea.” 

Bendor said the court must consider it, noting the EPM’s aim at the“uniform and correct administration of election law.”

The justices took the matter under advisement. 

As arguments are being considered, the 2025 EPM is under review by Attorney General Kris Mayes and Governor Katie Hobbs. And as the 2025 EPM becomes fully realized, tinges of potential legal challenges have started to pop up. 

The Secretary of State began the process in February this year with county election staff, reviewing the EPM chapter-by-chapter on a monthly basis and releasing the first draft in August.

Over the course of a 30-day public comment period, the office received 800 comments from 74 groups and consulted with county and tribal officials, lawmakers and voting rights advocates, resulting in a total of 28 changes to the draft. 

Edits include updating footnotes to reflect more recent court rulings — like ensuring strict compliance with laws for petition circulators and clarifying proof of citizenship requirements for state and federal-only voters. The draft also expands eligible disability agencies to assist in voting, adds additional points of consultation with tribal officials and clarifies and conforms language closer to statute. 

The 2025 EPM considered one legislative recommendation regarding petition circulators but does not include several requested changes, particularly the proof of citizenship requirements. 

House Speaker Steve Montenegro and Senate President Warren Petersen took issue with a provision purportedly allowing county recorders to cure registrations where they have found evidence that an applicant is not a citizen. 

Legislative leaders instead recommend the EPM require county recorders to cancel registrations and refer applications to the attorney general and county attorney for further investigation. 

And in a similar vein, the two also flagged a provision empowering recorders to attempt securing proof of citizenship on a registrant’s behalf. They wanted to strike a provision that made a lack of DPOC an “invalid ground” to challenge an early ballot. 

The Arizona Free Enterprise Club shares much of the same qualms and adds a note on a piece that allows the county recorder to visually inspect passports, as opposed to making and maintaining a copy for at least two years. 

Any additional changes to the 2025 EPM will now come through edits by Attorney General Kris Mayes or Gov. Katie Hobbs, or by litigation after the draft becomes final. 

Mayes, Hobbs and Fontes have until Dec. 31 to approve the final 2025 EPM. 

State Supreme Court reverses conviction based on self-defense

Key Points:
  • Arizona Supreme Court rules self-defense extends to a locked bedroom.
  • Decision overturns an aggravated assault conviction of a man who injured another man
  • One justice disagreed, saying a bedroom is not separate from the rest of a residence

The Arizona Supreme Court ruled Oct. 7 that the right to claim self-defense extends to someone who is inside a locked bedroom of a home, even if the person trying to enter has been invited into the primary residence.

The ruling vacated the aggravated assault conviction of a Tucson man convicted in a case prosecuted by the Pima County Attorney’s office. 

More importantly, it extends Arizona’s robust self-defense laws to areas previously not covered by any other state law.

The high court, with six of the seven justices agreeing, said that John Logan Brown was entitled to have a jury consider some self-defense arguments that had been precluded by a trial judge. Pima County Superior Court Judge Brenden J. Griffin — and the Arizona Court of Appeals — had ruled otherwise.

Justice James Beene, writing for the majority, said the definition of a “residential structure” in state law includes a separate, locked bedroom, and the jury should have been allowed to consider all of Brown’s self-defense arguments.

Beene forcefully rejected the stand of the lone dissenter, Chief Justice Ann Scott Timmer, that Brown’s bedroom wasn’t a separate residence under the law.

“Here, we have faithfully adhered to the plain meaning of the Legislature’s words to conclude that Brown’s bedroom constituted a “residential structure,” Beene wrote for the majority.

Timmer disagreed, saying that the trial court judge allowed three self-defense arguments to be presented to the jury, which rejected them in convicting Brown.

“Nevertheless, Brown argues the court incorrectly declined to additionally instruct the jury on defense of premises and defense of a residential structure,” Timmer wrote. “Brown was entitled to those instructions only if his bedroom qualified as a “residential structure.” 

Timmer said she agreed with the trial court that a bedroom doesn’t qualify.

“The majority’s contrary conclusion lacks statutory support and, in my view, invites confusion in future cases,” she wrote. “With great respect for my colleagues, I dissent.”

The case arose from a 2022 altercation inside a condo Brown shared with a woman with whom he had an on-again, off-again relationship, according to the decision. The couple had a friend who lived nearby who had told the woman not to reconcile with Brown.

The neighbor and Brown later got into a fight. Brown barred him from the condo, but sometime after that, Brown’s companion invited the man over to their home.

When Brown returned from work that day and found the other man there, he went into his separate bedroom and locked the door. The woman and the man then tried to force their way inside, and Brown swung a microphone stand to stop them, injuring the man. They were identified in court filings only by their initials.

Brown, now 44, was indicted on three counts, but only convicted of one, aggravated assault. He was sentenced to five years in prison, but the high court’s decision voids that sentence.

Beene wrote that state law grants someone the absolute right to use force to prevent someone from entering their residence, even if the person has been invited into the larger home.

“Because Brown had the right to exclude M.H. from his bedroom, a jury could conclude that Brown reasonably believed force was necessary to prevent a criminal trespass,” Beene wrote. ”Additionally, even though Brown testified that he did not feel threatened by M.H., (the law’s) presumption establishes that M.H. is presumed to pose an imminent threat.”

In an unusually rapid action, the high court issued a brief order after hearing oral arguments in February, stating that the trial court judge had erred. Tuesday’s formal opinion explained why the court made that decision.

Pima County prosecutors dismissed the case in April after the initial high court decision, according to county attorney spokesman C.T. Revere. They do not plan to retry Brown.

Arizona doctors and hospitals lose immunity from COVID negligence lawsuits, court rules

Key Points:
  • Arizona Supreme Court rules lawmakers acted illegally to immunize doctors and hospitals from COVID claims
  • 2021 statute voided, designed to provide liability protection for medical professionals during pandemic
  • The ruling may have broader implications for other liability protection laws

The Arizona Supreme Court has ruled that state lawmakers acted illegally when they voted to immunize doctors and hospitals from negligence claims during the COVID pandemic.

In a split decision on Sept. 12, the justices voided a 2021 statute that was designed to provide liability protection for medical professionals dealing with novel diseases with no known treatment. Lawmakers said they wanted to ensure that doctors and hospitals would continue to treat patients amid the pandemic without the fear of lawsuits.

But Justice James Beene, writing for the majority, said that legislation runs afoul of a provision of the Arizona Constitution which says “the right of action to recover damages for injuries shall never be abrogated.” And that language, he said, is “unequivocal.”

Not everyone agreed. Justice Clint Bolick, in his dissent, said the “police powers” of the state to protect public health are enough to justify the legislation shielding medical professionals from liability in the face of an unprecedented emergency. And that protection, he said, was needed to “encourage physicians to take the risk of treating COVID-19 patients without the benefit of full knowledge about the interaction of the virus with ordinary medical procedures.”

And Ann-Marie Alameddin, president and CEO of the Arizona Hospital and Healthcare Association, said the ruling amounts to the state giving medical providers “the back of the hand.” She said they took the risk of caring for patients at the height of the pandemic, when the disease was not understood.

Strictly speaking, the measure only covers claims against a medical provider who furnishes care during a state of emergency.

And the last emergency — the one this law was designed to address — was between March 11, 2020 and March 30, 2022, when Gov. Doug Ducey declared the emergency and when he terminated it.

Voiding the statute does open the door for those who had filed COVID-related malpractice claims during that period — there is no estimate of how many — to now pursue those cases. Others who didn’t sue because they believed the law precluded it, however, are apparently out of luck because the statutory time to bring that claim has passed.

Still, there could be significant fallout from the ruling.

In a legal brief while the justices were considering the case, Andy Gaona, representing the Arizona Hospital and Healthcare Association, warned that voiding the 2021 law could set a precedent that would undermine other laws — and not just those that apply during declared emergencies. He said it could be designed to shield people from being sued for what the law considers “ordinary negligence.” These include protections for:

– People who provide emergency care at the scene of an emergency;

– Health professionals who provide voluntary services at nonprofit clinics;

– Individuals who donate food items to nonprofit organizations for the needy;

– Those who administer drugs like Narcan to someone experiencing an opioid overdose.

But those laws were not before the justices on Friday and they did not comment on them.

The case involves Robin Roebuck, who had a heart transplant in 1993 and a second heart transplant and kidney transplant at Mayo Clinic in 2017.

He was hospitalized at Mayo on April 20, 2020, after presenting with COVID symptoms. Given his history, he was placed under the care of the clinic’s congestive heart failure team.

Roebuck developed pneumonia and was given supplemental oxygen. But an electrocardiogram confirmed his heart was “doing pretty well” and the decision was made solely to manage the COVID.

A day later, a doctor ordered an arterial blood gas test, a more accurate measure of determining the oxygen in a patient’s blood. That revealed very low oxygen.

The following day he developed complications from the test and underwent surgery on his right hand, forearm and wrist. He was left with diminished strength and use of his right hand and arm and significant scarring.

Roebuck sued, alleging the test was negligently performed. But Maricopa County Superior Court Judge Rodrick Coffey threw out the case based on the 2021 law — which lawmakers made retroactive to March 2020 — which said such lawsuits related to COVID during a declared emergency can move forward only if there is an allegation of gross negligence, something far harder to prove than the normal negligence he alleged.

That law denying the right to sue for ordinary negligence was adopted on a party-line vote by the Republican-controlled Legislature after it was backed by dozens of lobbyists for various business and medical organizations who told lawmakers they were afraid that they could wind up in court for actions they took related to the pandemic.

“The COVID pandemic has presented a once-in-a-generation challenge from both the public health and economic perspectives,” testified Courtney Coolidge of the Arizona Chamber of Commerce and Industry. What it also has brought, she said, are “extraordinary legal uncertainties.”

The same legislation also said that anyone suing under the law would have to provide “clear and convincing evidence” of negligence. That is a higher standard than what normally exists in civil cases, which says jurors decide based on a “preponderance of the evidence,” meaning whether it is more or less likely that someone was negligent.

Beene, in Wednesday’s ruling, said there was nothing wrong with that part of the bill. He said lawmakers are free to raise the burden of proof in any case.

But where legislators went wrong, Beene said, was in totally eliminating the right of anyone who is the victim of ordinary negligence, leaving them without any legal options at all.

“The statute does more than simply make it more difficult for an ordinary negligence plaintiff to prevail under these circumstances,” he wrote.

“Rather, it creates insurmountable hurdles for an entire class of plaintiffs injured by ordinary negligence, making it impossible for that class of plaintiffs to prevail,” Beene said. And that, he said, directly conflicts with the constitutional provision that bars lawmakers from eliminating the right of people to sue.

“The Supreme Court made the right decision,” said Robert Gregory, who represents Roebuck. He said that a ruling the other way “would have turned medical malpractice law on its head.”

What the ruling also does, said Gregory, is clear the way for his client to pursue his claim against Mayo.

Bolick, in his dissent, said lawmakers had the legal right to enact the law.

“COVID-19 presented public policy challenges that were nearly unprecedented, certainly in modern times,” he wrote.

“The ubiquitous image of masks, ventilation, intubation units, tests outside of hospitals, hospital ships, closed government schools, forced human distancing, closure of businesses and churches, and the like, will long endure in the public memory no matter how merciful the passage of time,” Bolick said. “What public officials knew about the disease was far exceeded by what they didn’t know.”

In fact, he said, it wasn’t even necessary for Ducey to declare an emergency.

“Unquestionably, the statute at issue here is an exercise of the state’s police power,” he said. “The state’s power to protect public health is broad and does not depend on an emergency.”

Friday’s ruling should not come as any surprise to the lawmakers and lobbyists who pushed this through in 2021.

Tim Fleming, the attorney for the House Rules Committee, which reviews legislation for constitutionality, told panel members at the time the measure likely would not survive a legal challenge. The GOP lawmakers on the committee, however, ignored his advice and approved it anyway.

Arizona Supreme Court to decide the fate of campaign donation disclosure law

Key Points: 
  • Arizona Supreme Court hears argument on donor disclosure 
  • Claims of threats, retaliation come after close-to-home killing 
  • Justices take matter under advisement, note statewide importance

The Arizona Supreme Court is now weighing a legal challenge to the Voters Right to Know Act, a 2022 law requiring heightened donor disclosure, from two conservative groups who fear it could lead to doxxing, threats, harassment and chilled speech. 

Arguments over the law, and the claimed potential for further disclosure to give way to harm, fell squarely in the shadow of the September 10 death of Turning Point USA founder Charlie Kirk, with attorneys for the plaintiffs and leaders of the Center for Arizona Policy and the Arizona Free Enterprise Club pointing to the shooting as an example of the current “retaliatory environment.” 

“It’s not lost on us what happened yesterday,” Justice William Montgomery said.

Proposition 211, or the Voters Right to Know Act, requires anyone making an independent expenditure for campaign media that surpasses a specific dollar amount — $25,000 for local campaigns and $50,000 for statewide campaigns — to disclose the origin of their funding. It also requires a mandatory identity disclosure for anyone contributing more than $5,000 to a campaign. The act passed in 2022 with support from more than 70% of voters. It was a significant push to create more transparency for campaign spending amid public concern for “dark money,” or untraceable campaign donations.

The Center for Arizona Policy and the Goldwater Institute claim the measure is unconstitutional and creates a chilling effect on donors. Both organizations also claim they are particularly affected, given the fear of retaliation, threats and harassment that their donors could face if their information is made more transparent. 

Both the facial and as-applied challenges to the law have failed so far at both the superior and appellate courts, but the state high court granted review and heard arguments on September 11. 

Andrew Gould, attorney for the plaintiffs, argues that the law’s broad constitutional failure stems from compelled disclosure and the threat of retaliation, which would deter donors from making donations. 

Chief Justice Ann Timmer first pressed Gould on the as-applied challenge to the act and asked whether the act is unconstitutional, in every circumstance, or if it just pertains to more high tension issues that both the Center for Arizona Policy and the Arizona Free Enterprise Club work on. 

“If you had a specific initiative … the abortion initiative for example, then sure, you can go and say, ‘Look, Judge, we’ve had this harassment, we’ve had these threats, we’ve had all of these things because it’s such a divisive issue, and it really does chill donors wanting to come and contribute,” Timmer said. “But if it’s a situation where it’s a tax issue, people aren’t also riled up about that.” 

Gould said there exists no requirement for organizations to forecast a retaliatory environment in the future legally, but did conclude the fear generally has to be related to what the organization stands for. 

Montgomery then asked why the opt out provision, written into the statute itself, would not suffice to ensure donors who feared reprisal could keep their names private. 

“Why isn’t that good enough?” Montgomery said. “If the statute specifically contemplates the ability for a governor to make a necessary showing to preclude having to disclose their information, why isn’t that good enough?”

Gould said the very idea of a threat of retaliation would lead to donors self-censoring. 

“Every time you’re required by the government to disclose your name, there’s a chilling effect,” Gould said. 

Eric Fraser, attorney for the Citizens Clean Election Commission, argued that campaign finance disclosures are a core value of state founders, as shown in the state Constitution, and the Voters Right to Know Act follows in the same vein. 

Justice John Lopez pressed on the issue of political violence, though, noting the string of vandalism against Tesla owners given a distaste for Elon Musk.

Fraser reiterated that disclosure was a constitutional requirement and that a reasonable probability of threat or retaliation must be found under the case law. 

“We have to consider that our founders looked at the risks and benefits of disclosure versus allowing people to remain anonymous. And they chose disclosure,” Fraser said.

Alexander Samuels, principal deputy solicitor general, pointed out too that the law does not apply to small donors, or indirect donors, noting a likely chain of communication between donors and recipients on how dollars are spent that could improve transparency. 

“What we have here is large scale donors, and the odds that these folks are not going to be talking to each other, the odds that an organization is going to spend a donor’s money against their wishes, I think they’re very unlikely. And the indirect donors can always, always restrict their donations,” Samuels said. 

The justices took the matter under advisement. 

“We realize this is an extraordinarily important case and issues will reverberate for many years to come. So we will take this under advisement. We certainly give all due consideration and discussion among us,” Chief Justice Ann Timmer said. 

Arizona Supreme Court ruling gives residents more power to block local projects

Key Points:
  • State Supreme Court ruling allows residents to block locally approved projects at ballot box
  • Residents have absolute right to propose laws, even if elected officials have already decided on a plan
  • The decision stems from the renovation of the roads in Page, Arizona

A small town fight over a plan to overhaul a downtown area in the Arizona Supreme Court has led to a new ruling making it easier for residents across the state to block locally approved projects at the ballot box.

The ruling, issued last week, says residents of Arizona cities, towns and counties have the absolute right to propose their own laws — even if elected officials have already decided on a redevelopment plan and started to implement it.

The decision could lead to local governments across Arizona having their decisions on roadway widenings, redesigns and other projects vetoed by voters at the ballot box.

In this case, some residents in the small northern Arizona city of Page organized to oppose a plan from the city council to remake a 1.4 mile section of downtown to boost business activity.

The downtown Page Streetscape Project involved removing two of the four travel lanes on Lake Powell Boulevard through the city’s business district, adding parking and wider sidewalks as a place to draw tourists and locals for dining and events. A center turn lane would remain.

The city rejected a ballot measure proposed by local citizens that would block the road widening, saying it was administrative and not subject to the initiative process in the Arizona Constitution.

A trial court judge and the Arizona Court of Appeals — in an opinion written by Justice Maria Elena Cruz before she joined the high court in January — sided with the city.

But the state Supreme Court overturned those rulings, saying that the initiative was legislative in nature and that the power of citizens to propose their own laws applied. Cruz recused herself and did not participate in the new decision.

“The foundational principle that informs this case is that the people’s power to make laws is co-equal to their elected representatives’ authority to create legislation,” Justice Clint Bolick wrote for the unanimous Supreme Court.

He said the initiative was legislative and backers had the right to propose it.

“The Initiative expressly creates public policy — preserving Lake Powell Boulevard as it existed on October 1, 2023; and the means of accomplishing that policy — preventing the use of public funds to narrow the specified portion of the road,” Bolick wrote for the unanimous Supreme Court. “The fact that this reflects a change in public policy does not alter its legislative character.“

The high court ordered the initiative put before voters, but did not set an election date.

The decision concerns Nancy Davidson, general counsel for the League of Arizona Cities and Towns. She said that, at any given time, there are hundreds of roadway projects underway across the state, many of them involving multiple cities and requiring coordination between planners, traffic analysts, utilities, contractors and more.

She said the court decision classifying the decisions as legislative rather than administrative makes them vulnerable to challenges.

“Are we opening it up, and I think we are, where we’re allowing street projects to be basically second guessed by the electorate every single time?” Davidson said. “It could just really wreak havoc on any type of infrastructure planning, especially now that we’re going through so much growth.”

The plan was developed over nearly eight years, and little opposition developed until a new group emerged after the Council had approved the project, said Bill Diak, who served as mayor for 14 years before deciding not to seek reelection last year.

It was prompted in large part by the 2019 shutdown of the coal-fired Navajo Generating Station near Page and the Kayenta Mine that supplied it with coal, said Diak, an 80-year-old retired power plant employee.

More than 500 high-paying jobs at the power plant alone were eliminated.

The loss of the major regional employers led the council to refocus on tourism and kickstarted the Streetscape project, Diak said. The city was awarded a $5 million federal grant last year to pay for the makeover and set aside more than $5 million in city funds as well.

“You know, we used to have an industrial environment, high paying jobs and fully pensioned,” Diak said. “We had a coal mine and a power plant. In 2019, all of that changed. We lost all of those high paying jobs and everything, and we switched over to where our economy is now, tourism.”

Since then, the small town political fight led to major changes in the council’s makeup, hard feelings on both sides, and fears by Diak that the damage would be felt for years.

Debra Roundtree, who with her veterinarian husband ran an animal hospital in town and organized the Page Action Committee to fight the streetscape project, agreed that hard feelings prevail from the battle she led. She remains angry about what she believes were lies and deceit by the council and backers of the plan. And she said she’s been harassed and intimidated.

“I’ve had my home security challenged. I can’t tell you the level of what individuals did to try to keep the citizens from being allowed to vote,” Roundtree said. “I mean, that’s the funny thing about this, right? Citizens have to vote, and they might vote in favor of it. We don’t know.”

She complained about an anonymous letter that circulated, including among the council, criticizing her. And she said she can’t prove that there were people poised to cash in on the redevelopment plan.

“I have no idea why our past Council believed that reducing Lake Powell Boulevard down to two lanes would cause us to have an economic increase,” she said.

Although she’s opposed to the cost, her main complaint is that the plan would eliminate traffic lanes, saying it could lead to gridlock through town as RVs, pickups hauling boats to the lake and tourist buses try to navigate the tighter street.

Diak, a resident since 1980, says Roundtree has no one but herself to blame and said she is making up unfounded allegations against the council.

“She stirred the pot, and in order to do that, she had to discredit the council,” Diak said. “So wherever she got an opportunity to do that, she did. And then when it came down to the nitty gritty, she backed off of that.”

As with most small town political fights, it’s hard to weigh who is right or wrong.

Diak said the main street makeover is badly needed. He said those tour buses, RVs and boat-hauling trucks speed through town, there’s little parking and few places for the tourists that are now the city’s life blood to congregate and spend money.

An estimated 3 million tourists visit Page each year, drawn by two major natural wonders, the Colorado River’s Horseshoe Bend overlook just outside the town and Antelope Canyon on the nearby Navajo Nation. Horseshoe Bend alone, which the city controls, brings in about $6 million in tourist revenue alone from parking and other fees, Diak said, money the city uses for improvements at the site and promotion.

What is clear is that opponents of the plan now have the power to decide for themselves. That’s because they ran for political office, and, last November, Roundtree and the project opponents won seats on the Page City Council. The council voted last month to end the project, but it could be revived unless the initiative passes.

But the victories come at a cost, Diak believes.

“It’s hard enough to get someone that wants to step up and help their community by running for public office,” he said. “I think that it’s going to make people think twice, ‘Why do I want to get in that arena?’ Because she made the previous council out to be crooks and liars and cheats and stuff.”

“None of that could have been further from the truth,” he said.

Court rules schools not liable for student safety off campus

Key Points:
  • Ruling sets a new precedent for school responsibility over student safety
  • Schools only liable for safety while exercising custody or control over students
  • Case was prompted after student was struck while jaywalking across the street to school entrance

Schools aren’t responsible for keeping students safe when they’re en route to school — or even just outside the school boundaries — the Arizona Supreme Court ruled July 15.

In a unanimous decision, the justices said schools are liable for providing safe conditions when students are on campus or, at the very least, exercising custody or control over them.

But Chief Justice Ann Scott Timmer said that’s not the case when a student is injured while crossing the street, even one adjacent to the school.

Timmer acknowledged that the Phoenix Union High School District was aware that some parents, seeking to avoid lines, were dropping their youngsters off in a dirt lot across the street from the school. And, in this case, the student was struck by a vehicle while jaywalking across that street, as there was no crosswalk there.

She said none of that, however, creates any sort of legal duty on the school to protect the student from danger.

The ruling sets a new statewide precedent.

Timmer said the justices have never addressed this situation before. In fact, the decision overturns a contrary ruling by the state Court of Appeals, which had concluded the student’s parents did have a right to sue.

According to court records, the student, identified only as CJ, was a freshman at Betty Fairfax High School in Laveen.

The area in the morning, according to Timmer, was hectic, with some parents dropping their kids off in the parking lot adjacent to the school. But other parents, seeking to avoid the line into the school grounds, pulled into a dirt lot across 59th Avenue, with the students jaywalking across the street.

“BFHS officials did not tell parents to drop their children off at the dirt lot,” the justice wrote. “But they were aware of the practice and did nothing to stop or warn parents or students that the practice was unsafe.”

CJ, while jaywalking in August 2021, was struck by a vehicle and suffered serious and permanent injuries.

His father, in filing the suit, claimed that the district had some control over whether to pursue safer options for students coming and going from the school grounds or, at the very least, warn students of the traffic dangers.

What is clear in the law, Timmer wrote, is that, while schools have a duty to protect students, that duty is not without limits.

“A school owes a duty to protect students when a known and tangible risk of harm endangers them while under the school’s custody and control,” she wrote. “That duty exists most often when students are injured while at school or participating in off-campus school-sponsored activities.”

But she said there are “rarer circumstances” where a duty to protect students exists while a student is under the “custody and control” but an injury occurs while the student is outside that custody and control.

She said that was not the case here.

Timmer said all the evidence indicated the high school had reasonably safe means of ingress and egress, with multiple entrances and exits for pedestrians and vehicles. And she said nothing about these created a “tangible risk of harm” that endangered CJ and resulted in his injuries.

More to the point, Timmer said, while a risk of harm from jaywalking existed in front of the school “it existed everywhere along the routes students take from home to school.” Put another way, she said the risk was not created by the configuration of entrances and exists “but from the fact that crossing a street outside a crosswalk creates the risk of being hit by a car.”

And she said the fact that traffic was backed up on 59th Avenue leading into the parking lot did not make the ingress and egress at the school unreasonably dangerous.

“CJ was not entering BFHS at the time of the accident; he was traveling to a school entrance,” Timmer wrote.

“This is a distinction with a meaningful difference,” she said. “A school does not have a duty to protect students from dangers that arise when the school is not exercising custody or control over the student.”

Liquor regulators not liable for drunk driving injuries, court finds

Key Points: 
  • It is illegal for establishments serving liquor to sell to “obviously intoxicated” people 
  • The Arizona Supreme Court says liquor regulators have no obligation to close bars who regularly overserve
  • The decision overturns another that found the agency has a duty to prevent public harm

The failure of state liquor regulators to close a bar with an alleged history of overserving does not make it liable when an intoxicated customer causes harm after driving, the Arizona Supreme Court has ruled.

In a unanimous opinion, the justices acknowledged that the state Department of Liquor Licenses and Control has broad authority to suspend, revoke or refuse to renew a license if the establishment fails to comply with the statutes that regulate the sale of alcoholic beverages. One of those laws makes it illegal to serve liquor to an “obviously intoxicated person.”

And in this case, the victims of an accident caused by someone who left Billy Jack’s Saloon and Grill in Dewey-Humbolt — a person who had a blood-alcohol content more than four times the legal limit — say that the failure of the state agency to close the bar led to their injuries.

In legal pleadings, they said the bar had a “history of infractions.” And the plaintiffs claim the agency renewed the license “despite it being open and obvious through their advertising and website that Billy Jack’s seeks to overserve their customers.”

But Justice Kathryn King, writing for the court, said that’s all irrelevant.

“The permissive statutes make clear that the department may suspend or revoke an establishment’s license, may inspect a licensee’s premises, and may impose civil penalties,” she said. But King said those are “discretionary statutes.”

“They do not require the department to perform any act or refrain from performing an act,” she said. That, said King, means the agency owed no duty to protect those who were injured and cannot be held financially accountable.

The May 19 ruling overturns an opposing decision by the state Court of Appeals.

In its majority decision, the judges said lawmakers created the department and gave it specific regulatory authority with statutes expressly identifying the overservice of patrons as a risk to the general public they were designed to prevent.

“Conversely, those potentially harmed by an overserved patron represent the precise class of persons those statutes were designed to protect,” the appellate court wrote.

But King, by contrast, said the law doesn’t go that far — and doesn’t make the liquor department liable for injuries arising from alcohol-related incidents.

According to court records, David Browne went to Billy Jack’s in April 2021. After leaving the parking lot, he drove his vehicle onto State Route 69 and was involved in a multi-vehicle accident.

Victor Sanchez-Raveulta and Janette Dodge and their two minor children were passengers in one of the vehicles.

The lawsuit said Browne had a blood-alcohol concentration of more than 0.30 at the time of the accident; 0.08 is considered the presumptive indication of intoxication.

In filing suit, the plaintiffs said the state, through the liquor department, was grossly negligent and exhibited “wanton conduct.” They said the department must protect the public by taking reasonable measures to prevent establishments from creating hazardous conditions by regularly overserving their patrons.

The problem with that, King said, is that someone can be held negligent only if they have a duty to “conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.”

It is true, she said, that a duty can be created by state law, but that, by itself, is not enough.

“A statute cannot be the basis of a public policy duty if it does not require or prohibit certain conduct,” King wrote. Instead, she said, the law must be written in a way that it requires or prohibits certain conduct.

Here, King said, the statutes the plaintiffs are relying on to prove the department negligent do not fit the bill.

“These statutes merely describe the department’s discretionary authority,” she said.

The justices acknowledged that a separate statute says that a liquor license can be issued only after the applicant has shown qualifications and reliability and that “the public convenience requires and that the best interest of the community will be substantially served by the issuance.”

But King said the complaint does not allege the injuries were caused because the department improperly issued the original license; instead, it is based on facts after the original license was issued.

There is nothing in the court record about any separate litigation against the bar’s owner.

$250 donations to AG Mayes insufficient for judge’s disqualification, court rules

Key Points:
  • Hoffman claims judge’s donations show bias; court finds evidence too weak
  • Latest appeal will decide whether case goes to a public trial 
  • If it does, fake electors case could lead to prosecution of legislators

A pair of $250 donations to Kris Mayes isn’t enough to conclude an appellate judge should be removed from hearing an issue in the case of the fake electors she is prosecuting, the Arizona Supreme Court has ruled.

The justices tossed a claim by Sen. Jake Hoffman, one of those indicted last year, that Andrew Jacobs should not be on a three-judge panel deciding what could be a crucial issue in determining whether the charges against him should be allowed to go to trial. No reason was given for the order.

But in doing so, the high court affirmed a ruling by David Gass, the chief judge of the appellate court, who concluded that the donation by Jacobs, given before he was placed on the bench, did not affect his ability to be impartial. Nor was Gass concerned that one of those donations from Jacobs came after Mayes, not yet elected — and long before she got a state grand jury to indict Hoffman and others — already had publicly made statements about the guilt of electors.

What’s significant about all this is that the Court of Appeals — with Jacobs on the panel — will decide whether Mayes brought the charges against the defendants to suppress their First Amendment rights.

Maricopa County Superior Court Judge Sam Myers ruled earlier this year that the defendants had provided sufficient reason to believe that was the case. But he withheld a final decision on whether the charges, ranging from fraud to conspiracy, should be thrown out.

Mayes responded by asking the Court of Appeals to review Myers’ decision. And that resulted in Hoffman seeking to have Jacobs removed from the panel.

What the appellate court decides could determine whether the defendants go on trial in January or the highly publicized case goes away.

The indictment charges that Hoffman and 10 other Republicans committed fraud by preparing documents and sending them to Washington after the 2020 election declaring that Donald Trump had won the popular vote in Arizona and, more to the point, that they should be the ones whose electoral votes are counted. That assertion, however, was not true, with Joe Biden outpolling Trump by more than 10,000 votes.

Also indicted were others in the Trump orbit, including his chief of staff during his first term in the White House, accused of being part of the scheme. And Trump himself was named an unindicted co-conspirator.

The defendants have said they did nothing wrong and simply prepared the documents in case litigation would show that Trump actually won. But the indictment says the move here was part of a larger plan to deny Biden the necessary 270 electoral votes he needed, throwing the decision on the race to Congress.

But before the case can go to trial, there’s the question of the state’s anti-SLAPP law, short for Strategic Law Against Public Participation.

These statutes generally are seen as a way to bar civil lawsuits designed to silence free speech. But the Republican-controlled Legislature in 2022 — when there was first talk about indicting the fake electors — expanded the statute to cover criminal prosecutions.

Attorney Michael Columbo, who is representing Hoffman, said there’s more than enough evidence to show that Mayes had a “retaliatory motive” in seeking the indictment.

In July 2022, while running for office, she made a statement that the electors had committed a crime.

A month later, she referred to the electors’ actions as a “criminal conspiracy to overturn the results.” And there was a comment by Mayes saying the electors were “the people directly tied to the Jan. 6 insurrection.”

It was Myers’ ruling in February that the defendants had provided enough evidence to conclude they might be entitled to anti-SLAPP protection that sent the case to the appeals court and created the question of whether Jacobs could be impartial.

Attorney Michael Columbo said that Jacobs made multiple donations to Democratic campaigns in Arizona, including a $250 contribution for Mayes on June 18, 2022 and an identical donation on Aug. 11, 2022.

“Notably, Judge Jacobs’ second contribution followed Mayes’ statements about the electors that Sen. Hoffman raised in his anti-SLAPP motion,” Columbo said.

More to the point, Columbo said that the contributions indicated that Jacobs supported Mayes’ platform, including bringing criminal charges against Hoffman and the other electors.

What that means, the attorney said, is that Jacob’s impartiality “might reasonably be questioned.” And, if nothing else, leaving Jacobs on the three-judge panel “created, at a minimum, an appearance of partiality.”

Gass, in the ruling just upheld by the Supreme Court, tossed the request to disqualify Jacobs.

He said there is a question of whether the rules about disqualifying judges apply to appellate judges. And Gass said that Hoffman “offers nothing more than bare allegations of bias and prejudice that do not overcome the presumption of impartiality.”

There’s also the fact that Jacobs was still in private law practice at the time of the donations. But Gass said even if that were not the case, nothing in ethical rules governing the conduct of judges prohibits them from donating to candidates and political organizations.

Battle to change how appeals judges are elected reaches Arizona Supreme Court

A long-fought legal battle to see state Court of Appeals judges stand for retention elections statewide, as opposed to by county of residence, is now under consideration by the state high court.

Attempts to alter the judicial retention election system for intermediate appellate judges started in the Legislature, and with insufficient success, soldiered through the courts on constitutionality grounds.

A final decision, now pending in the Arizona Supreme Court, could either add 28 judges to the statewide ballot in 2026, or send the Goldwater Institute, the chief advocate for the policy change, back to the Legislature to try again.

As it stands now, Court of Appeals judges run for election based on their county of residence.

Candidates hail from two distinct divisions, each representing a region of Arizona as a whole.

Division One comprises Maricopa, Yuma, La Paz, Mohave, Coconino, Yavapai, Navajo and Apache counties. A majority of the Division One appellate judges, 10 of 19 total, hail from Maricopa County and are elected by voters of Maricopa County.

Five are required to be from and be retained by voters in the remaining counties, and the remaining four judges can come from any county in Division One.

A similar system is set up in Division Two, consisting of Pima, Pinal, Cochise, Santa Cruz, Greenlee, Graham and Gila counties. Four of the nine judges come from Pima, two from the remaining counties and three judges can come from any county, with voting again based on the judge’s county of residency.

Attorneys for the Goldwater Institute, arguing on behalf of four voters, insist the state law establishing the division system runs counter to the state Constitution: “first, because of silence on the intermediate appellate court’s electorate in articles setting up elections, and second, because of a potential uneven distribution of votes among the different voting divisions, despite the Court of Appeals maintaining statewide jurisdiction.”

In front of the justices on April 8, Andrew Gould, attorney for the Goldwater Institute, argued that the uneven distribution demanded a shift to statewide retention elections for appellate judges rather than elections based on county of residence.

Gould started by pointing out that the state Constitution does not explicitly set an electorate for the Court of Appeals. He then contrasted this with the Superior Court judges, whose constituents are drawn by county, and legislators, who are delineated by district.

Justice William Montgomery noted the Legislature maintains the authority to create the jurisdiction, powers, duties and composition of any intermediate appellate court.

Gould noted, though, that the Arizona Court of Appeals is looped in with the Arizona Supreme Court in a provision covering retention elections, with an instruction for appellate judges to file retention declarations with the secretary of state. He said the Court of Appeals’ inclusion necessarily means the judges should stand for statewide election per the Constitution, which would override legislative authority.

But Montgomery called that an inference.

“I don’t see that as something that’s explicitly written that then becomes a fulcrum point for our interpretation,” Montgomery said.

Still, Gould insisted the Legislature’s statute to divvy up appellate judges by county went beyond the Constitution by dividing a statewide office and “worse yet,” creating uneven districts.

Chief Justice Ann Timmer said Gould “raised very good policy points.”

“But that’s what they strike me as, policy points. How does (the statute) violate the Arizona Constitution? What’s the violation?” Timmer asked.

Gould said there is nothing in the Arizona Constitution that supports dividing up Court of Appeals judges into districts, “and the fact that the Constitution knows when to include those terms and does so for superior courts and legislative districts is important.”

In a briefing before the oral argument, Gould and attorneys for the Goldwater Institute argued that county-based elections violate the Free and Equal Elections Clause and the Equal Privileges and Immunities Clause by granting unequal weight to each vote.

Meanwhile, the state maintains the judicial election system for the Court of Appeals was always intended to run along geographic lines.

“The system is not based on the fictional principle that the scope of judicial authority or the reach of a court’s jurisdiction defines its electorate,” Emma Mark, senior litigation counsel for the Solicitor General’s Office, said. “It was intended to give every voter a say while still balancing the diverse interests of Arizona’s urban and rural populations.”

Montgomery noted there was an “allure to the basic logic that if a judge is going to issue a ruling that affects me, I ought to have some oversight to some degree as a voter,” and asked whether the state thought the Legislature should be at all limited in determining the jurisdiction of the Court of Appeals.

Mark said the Legislature would be limited if it acted in a way that was arbitrary or capricious. She noted that the Constitution contemplates that judges will be appointed from certain geographic areas and the Legislature creates parity by putting retention elections on the same system as appointments.

“If we have a statewide retention election but maintain this geographically based merit selection process, I don’t think it’s difficult to envision a scenario where Maricopa County voters consistently overwhelm and outnumber the voters from rural counties,” Mark said. “That doesn’t really seem fair either. So this system is a way to give everybody a say in the judges that come from their geographic area.”

Mark then called on the state Supreme Court to uphold the lower court’s ruling. In July, Judge Frank Moskowitz found no violation of the Free and Equal Elections Clause nor the Equal Privileges and Immunities Clause.

His ruling held the current retention election system constitutional as it treats all similarly situated voters equally. He found the plaintiffs failed to establish a cogent argument that the court’s electorate should hinge on its statewide jurisdiction, noting that the Superior Court judges also maintain statewide jurisdiction but are voted on by the county.

The justices took the matter under advisement.

Jon Riches, vice president of litigation at the Goldwater Institute, said they were hopeful the court would strike down the geography-based retention scheme.

If the court decides to rule against the Goldwater Institute, the attempt to shift the retention scheme could be followed up in the Legislature, though a bill to achieve the same end was vetoed by Gov. Katie Hobbs in 2023.

House Bill 2757, sponsored by Rep. Ben Toma, R-Peoria, passed along party lines. But in her veto letter, Hobbs found it would “unfairly dilute the votes of those Arizonans most directly impacted by each Division’s judges.”

Riches said, “We would certainly welcome the Legislature to continue its work toward a system that is both constitutional and just for voters, and encourage the governor to recognize that the current system is neither.”

Right to remain silent challenged in Arizona Supreme Court

The Arizona Supreme Court has ruled that the decision to remain silent, a constitutional right, can, in certain circumstances, be held against someone accused of a crime.

And the key to those who want to protect that right is to refuse to answer any questions at all.

In a unanimous decision Friday, the justices rejected claims by Giovani Melendez that he was entitled to answer only some questions by police when he was arrested. During an interview, Melendez told police the shooting of someone else was self-defense, but declined to respond to other questions.

More to the point, Justice John Lopez, writing for the unanimous court, said there was nothing wrong with prosecutors not only questioning Melendez on the stand about his decision to not answer some of the questions, but then pointing out that fact to jurors who eventually convicted him.

Lopez acknowledged in Friday’s ruling that the Fifth Amendment protects the rights of individuals to refuse to talk to police.

That is enshrined into practice with the 1966 Miranda ruling by the U.S. Supreme Court that says suspects must be informed of their constitutional rights, including the right to remain silent and their right to an attorney, before questioning them in custody. That precedent also says the decision to invoke that right can’t be used against them at trial.

But in this case, Lopez said, Melendez was “selective” in his silence. And that, he said, entitled prosecutors at his trial to ask him, in front of a jury, about the questions he refused to answer.

Friday’s ruling is significant, and not only because of the precedents it sets for future police questioning and trial tactics that can be used by prosecutors.

It comes more than a year after the state Court of Appeals reached a contrary ruling. There, the judges voided the conviction, pointing out that Melendez repeatedly told the detective he did not want to talk about the shooting, and that the detective, in her responses to him, affirmed that was his right.

The arrest stems from a 2019 incident where Melendez returned to an apartment complex where he used to live, a complex that also hosted church services.

According to court records, he parked his car, walked toward the child of the pastors, and asked “Are you the pastor’s son?” The boy responded affirmatively and began walking toward Melendez.

At that point, Melendez pulled a gun and fired multiple shots at him. Each shot missed and Melendez drove away.

Officers later took him into custody and into a nearby precinct where they informed him of his Miranda rights. He said he didn’t want to talk any more and that interview ended.

Later, at the Phoenix police station, Melendez was again informed of his rights.

At that point, he made some comments. But when asked about why he shot at the child, he said “I want to hold some stuff I want to say” and “I still want to hold myself on some things.”

Only later did he say that he was acting in self-defense.

Melendez offered the same defense at his trial. However, the prosecutor then began questioning him about his decision to pass on some questions, especially since his claim of self-defense came only after he was informed he was going to jail.

And during closing arguments, the prosecutor urged the jury to question Melendez’s self-defense claim because a “reasonable person” would have answered the questions about the motive if he “really shot in self-defense.”

The jury sided with the prosecutor’s version of what happened, found him guilty of aggravated assault, and a judge sentenced him to a presumptive term of 7.5 years in prison.

When Melendez appealed, an attorney for the state argued that he had effectively waived his Fifth Amendment rights because he did not remain completely silent. Appellate Judge Michael Brown said he and his colleagues weren’t buying that.

“Nothing in the Miranda warnings informs a suspect that if he relies on his Fifth Amendment right to be silent, completely or partially, his exercise of that right can be used against him at trial,” wrote Brown in overturning the conviction.

“The warnings required by Miranda would have to be amended to inform a suspect that not only what he says may be used against him, but what he does not say will also be used against him,” Brown wrote.

“The warnings have not been amended,” he said. “And allowing the state to penalize a defendant at trial for his earlier silence when he was not informed of that consequence would improperly relieve the state of its burden to prove waiver.”

Lopez, writing Friday for himself and his colleagues, said that appellate court ruling misunderstands the nature of Miranda warnings.

“Once an individual invokes his right to remain silent, police must cease questioning,” Lopez acknowledged. “Prosecutors may not comment at trial on a defendant’s post-invocation silence.”

But he said all that changed when Melendez agreed to answer some questions at the police station.

“We cannot conclude he unequivocally and unambiguously invoked his right to remain silent in his second interview when he stated that he would ‘hold’ and ‘pass’ on answering certain questions ‘for now,”’ Lopez wrote.

“Indeed, Melendez’ mid-interview statement that he was willing to continue the interview buttresses this conclusion,” he said. “Melendez’ statements are more aptly characterized as tactical deferrals to responding to specific questions than unequivocal refusals to answer.”

And what all that means, Lopez said, is that the prosecutor did nothing wrong in asking Melendez about the questions he did not answer.

“Here, the prosecutor’s cross-examination of Melendez is more akin to permissible impeachment,” the justice said, where the witness is being asked about any “prior inconsistent statement” in an effort to convince jurors that the testimony is not credible. And that, said Lopez, is different than asking defendants why they refused to answer any questions at all, something that clearly is prohibited.

Anyway, Lopez said, the prosecutor in his statements to the jury was not commenting on his silence but what the court called “wavering tactical deferrals” by Melendez in his interview which he was using “as a ploy to stall his answers until he knew what witnesses had told police about the shooting.”

Arizona Supreme Court reignites 2020 safety lawsuit against Circle K

Store owners have a legal responsibility to keep their shops “reasonably safe” for customers, the Arizona Supreme Court ruled March 12.

The justices rejected claims by Circle K that because the case of water that Roxanne Perez tripped over was “open and obvious,” the company cannot be held liable for her injuries.

None of that means Perez ultimately will win her case. The ruling sends the case back to a trial court which had thrown out her lawsuit as lacking legal merit.

But the decision is significant because it spells out a legal standard for the responsibilities of store owners to ensure that those they invite onto their property, like shoppers, are not subject to unreasonable risk of injury. And that places them on notice about what precautions they now have to take to shield themselves from liability.

According to court records, Perez went to a Circle K store in 2020 that she frequently patronized in Phoenix to buy ice cream. After getting the ice cream from the freezer, she turned to enter the next aisle when she tripped and fell over a single case of water on the floor at the end of the aisle.

The company said it had been placed there as an “end cap” display, a common tool of retailers to show off certain items. Perez said she did not see it before tripping.

In 2022, Maricopa County Superior Court Judge Joan Sinclair threw out the lawsuit.

“While the case of water may have created a dangerous condition, it did not create an unreasonably dangerous condition,” the judge wrote.

“The plaintiff could have seen the case of water if she looked down,” said Sinclair. “She is expected to take care of herself and Circle K owned no duty to the plaintiff in this context.”

Chief Justice Ann Scott Timmer, writing for the unanimous Supreme Court, said it’s not that simple.

“Indisputably, Circle K, as a business owner, has an affirmative duty to make and keep its markets reasonably safe for customers, who are invitees,” she said. And in this case, it is clear that Perez was an “invitee.”

“Thus, as a matter of law, Circle K owed a duty of care to Perez,” Timmer said. That means that the trial judge should not have barred Perez from pursuing her claim.

All that sets the stage for what comes next.

Timmer said that whether that end cap — and the fact it was only one crate high — was unreasonably dangerous is something that the trial court will have to consider in deciding whether Circle K had a duty to protect patrons in such circumstances and whether it breached the standard of conduct in complying with that duty.

Similarly, she said, a trial court can address the questions of whether the display was “open and obvious.”

The chief justice said the March 12 ruling does not strip business owners of their ability to have claims against them thrown out before actually having to go to a full-blown trial. Timmer said there are circumstances where there is no real dispute over the facts — the issues that are decided by juries — leaving a trial judge free to conclude that the law does not create a legal liability.

There was no immediate response from the Arizona Retailers Association to the ruling and the implications to its members.

Maria Elena Cruz: Justice who is Yuma and rural

As a Superior Court judge in Yuma County, Maria Elena Cruz couldn’t go to the grocery store without running into a constituent or someone who appeared in her courtroom. She said it made her a better person. 

Cruz was first elected to the bench when she was 35 and has spent her career in service of her community. Now, as she ascends to the Arizona Supreme Court, she keeps the same small town perspective at the center. 

This interview has been lightly edited for space and clarity. 

How did you first come into contact with the legal system? How did that later foray into pursuing a career in the law? 

I had a serious car accident. One of those where I thought in the moment that I probably was going to die. I’m bracing myself for the moment where all the questions will be answered, where either the lights will go off or some transformation will happen. I remember grabbing the steering wheel and thinking, “This is it, and I’m about to find out all the answers.” And I was out for a short period of time, and then I opened my eyes, and I was still here. I was still here, and later in looking for legal representation, it was through connections and contacts that I was able to have an appointment with an attorney. 

When you think about it from the perspective of living here in Phoenix, personal injury attorneys are everywhere, everywhere, and that was not the case for me. And I remember thinking after that matter, or as that matter was progressing, just this is not something I would be able to do without an attorney. And this attorney is uniquely positioned to help me. I saw attorneys as servants of the people, in a sense, their profession, no doubt, but certainly there to provide a unique service, to champion the rights of an individual. And I thought, that’s work that I could do. 

Once you started working in law, at what points did you pivot? What guided your thinking in those transitions?

I, in law school, had the opportunity to participate in the prosecution clinic, and started prosecuting cases, under supervision of a professor, misdemeanor cases. And I found that to be incredibly important and gratifying work. I thought I felt like a superhero. Just righting the wrongs, bringing people to justice. I, honestly, in my mind, I felt like, bring me a cape. I’m a superhero now, right? And I had incredible respect for our system. Fortunately, I had never been exposed to sort of the negative side of the legal system, especially of the criminal law system, and so I didn’t realize how quickly and how easily someone’s rights can be trampled on. It’s something that I just needed to see up close. 

Some of my colleagues recommended that I get some experience as a defense attorney. They said the best prosecutors have some defense experience. And I thought, well, I’m probably not going to like it, but I’ll go do it, and then I’ll know. In my first group of assigned cases as a defense attorney, I had the case of a person who was innocent, completely innocent, not even in the country when the offense occurred. He was accused of a drive-by shooting, and it was a misidentification. And I could not believe that this could happen so easily. It was incredibly difficult knowing that so much responsibility rested on me, on the work I did. It took two months to get this person out of custody every time, but I was successful in the end. But every weekend, every Friday, I would think, here’s another weekend that I wasn’t able to get this person out, and here’s an innocent person in custody and potentially going to prison.It was incredibly eye opening, and it didn’t sour me to the work that I had been doing as a prosecutor, but it balanced me. It really brought me to center. 

How did you approach your work as an attorney?

I didn’t want to just be someone who defended people, helped them get out of trouble and continue on a revolving door. That didn’t sit well with me. I wanted to know that what I was doing was to a good and righteous end. With each client, after we talked about the case and potential defenses and what we could do, I always took the time to talk about the person. How did we get here? Were we on the right track, and we took a wrong turn because something happened? Or were we never on the right track because unfortunately, we were born into circumstances where other people had made decisions that had put us in the wrong place? Empowering those people to understand that regardless of how you got to be where we are today, where you’re on the other side of the glass looking at me, there is a way out of this. 

Most sentences in our criminal justice system are not life sentences. Most of them are not death sentences. Most of them are for a period of time. And so there’s always the opportunity for those folks to choose again and choose differently. So I wanted to be there, have that conversation and feel like I was actually adding value to the community by doing that. Even though nobody required it of me and it wasn’t technically my job to do but I needed that for my own soul.

Being from a smaller county, you’ve connected with and been elected by your community, how has this informed your perspective as a judge? 

A judge in a rural community is used to being with people. We live among the people whose disputes we resolve, and among the people we supervise on probation. 

I had a program called Swift, Accountable, Fair, Enforcement, SAFE, and it was to address probation violations, low level probation violations or low level offender violations. And the idea was, when there was a positive urinalysis result or some failing to bring that person in within 24 hours, like the next morning, you’re in front of a judge. We issue a sanction, you complete the sanction, and you’re back in good standing and moving on. 

I had a person in the program who had a violation come before the court the next morning. We talked about her doing two days in custody, but she had a job at a grocery store, and we didn’t want her to lose her employment as a result of this. So we planned to schedule her sanction for the weekend. I’m going to release you. You’re going to go to work, and then in a couple days, you’re going to turn yourself back in. And so we go through that process, and then later in the day, cut to Maria Elena Cruz grocery shopping, pushing her little cart, and there’s the woman at the register that I just released from jail. 

Those interactions happen all of the time. It may seem an annoyance to some to have to be so visible, to be on all the time, but I think it makes us better people. We’re accountable for all of the decisions that we make.

How do you plan to empower and represent the people who have not seen themselves reflected in the Supreme Court before? What does that look like to you?

Doing the job of a justice to the very best of my ability is my goal. As I’m doing that people will see me. It’s very apparent that I’m a woman, it’s very apparent that I’m Afro, Latina. That I’m not white, and that diversity will speak for itself, and people will see someone doing this work and looking like anybody else in the community. And of course, it’s not just a matter of having me, it’s a matter of having my colleagues on the court as well, just looking at us as a collection of citizens from a cross section of our state, I think that will be key. 

What has kept you tied to your community? What do you love about Yuma?

When I tell you that I love Yuma, when I tell you how much that shocks me that I got to this point, because when I got to Yuma at 14, I never thought that I would utter those words. Yuma has given me every opportunity to serve and to excel. 

Feeling so connected to my community, being elected by them, that was an incredible moment for me… To have the trust of the public placed in me to make decisions over who’s going to be the primary parent of a child, a person has been convicted of an offense, and I have discretion to decide whether to let them stay in the community under supervision or go to prison, what’s best in this case – all of those critical decisions – to have my community bestow me with the power and responsibility to make those decisions and then re-elect me over and over to do that, affirming their initial decision, connected me to them in a way that is difficult to describe. 

I am Yuma. Yuma made me. I wouldn’t be where I am without my community. They’re the ones who thought I should come out here and be a Court of Appeals judge for them. They’re the ones who wrote letters, people from both parties, to the governor to get me here. 

I’m Yuma. I’m rural. I’m here. 

 

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