James Beene | Arizona Capitol Times

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.”

Court expansion key to artists’ win in discrimination case

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 rules divorced woman can use fertilized embryos against father’s wishes

A divorced woman is entitled to implant some fertilized embryos created before she was married despite the objections of her former husband, the state Court of Appeals has ruled.

In a split decision, the majority acknowledged that the contract Ruby Torres and John Terrell signed with the clinic doing the in-vitro fertilization spells out in the event of separation of divorce the embryos could be used solely with the “express, written consent” of both parties.

Now, Torres who was undergoing chemotherapy at the time, wants to implant the embryos if and when she remarries. Terrell, who does not consent, got a trial judge to rule that she can’t do that.

But appellate Judge Jennifer Campbell, writing for the majority, said that, on balancing the interests of both parties, Torres is entitled to do with the eggs what she wants. And Campbell said it is irrelevant that if Torres gets the embryos, Terrell could be legally responsible for child support.

Friday’s ruling drew a stinging dissent from Judge Maria Elena Cruz who chided her colleagues for ignoring the plain language of the contract the pair signed.

What makes the case particularly noteworthy is that Torres got the Arizona Legislature last year to approve a new law saying that judges must grant viable embryos to whichever parent will agree to allow them to be born, regardless of what a couple decided when first having an embryo frozen.

That means Arizona law now reads a man’s decision he no longer wants to be a parent could be overridden if his ex-wife wants to become a mother.

But what it also means is 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.

That law, however, was not a factor in Friday’s ruling, with the court saying they can’t be bound by a statute that didn’t exist at the time.

Attorney Claudia Work, who represents Terrell, told Capitol Media Services her client is “weighing his options” on whether to seek state Supreme Court review.

Court records show that 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 pregnancy.

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

An agreement provided by Bloom Reproductive Institute spelled 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 be to compelled to be a parent outweighed Torres’ right to procreate and desire to have a biologically related child.”

Campbell, writing for herself and appellate Judge James Beene, said that decision was flawed.

“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 acknowledged that contract requires the “express, written consent of both parties” before embryos can be used to create a pregnancy. But she said that is overridden by the other provision which allows a trial judge to decide the fate of the embryos.

What also weighs in favor of Torres, Campbell said, 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.

And there was something else: Campbell said that Torres had lined up someone else before Terrell agreed to be the donor. If he had not intervened, the appellate judge said, she “would likely have viable cyrogenically preserved embryos ready for implantation as she planned.”

Cruz, in her dissent, said the other two judges were ignoring a constitutional provision which says the state cannot interfere with contracts.

She agreed that the agreement the couple signed did leave 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.”

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

Court rules victims can be referred to as ‘alleged victims’

People who prosecutors say are the victims of crime have no legal right to be referred to at trial as “victim” rather than “alleged victim,” the state Court of Appeals ruled Thursday.

In a split ruling the judges acknowledged the Arizona Constitution spells out the rights of crime victims throughout criminal proceedings. And the court said they are legally entitled “to be treated with respect and dignity.”

But Judge Kent Cattani, writing for himself and Judge Peter Swann, said that does not preclude a trial judge from allowing defense counsel to refer to the person as the “alleged victim.”

In a dissent, Judge James Beene said he reads the constitutional and statutory rights of the child at issue – in this case of child molestation and sexual abuse – to be broader than his colleagues.

“Because a person against whom a crime has allegedly been committed is afforded several substantive pre-trial rights pursuant to Arizona law, logic dictates this individual is a ‘victim’ and should be referred to as such,” he wrote. And Beene said that does not impair the right of a defendant to get a fair trial.

Wednesday’s ruling drew praise from Joey Hamby whose firms represented Derek Achenbach, the defendant in this case.

“We are very gratified that the Arizona Court of Appeals has upheld the right of every defendant to be presumed innocent during trial,” he said.

Jamie Balson, who represented the interests of the child, did not respond to a request for comment.

Achenbach was charged with offenses against the unnamed child. Balson asked Maricopa County Superior Court Judge George Foster to forbid Achenbach’s defense team from referring to the girl as the “alleged victim” during the trial.

The judge refused and the trial went on anyway, with the jury finding Achenbach guilty of the sex abuse charges but innocent of the molestation charge.

That case is now on appeal. But Balson, as the girl’s attorney, continued her separate fight in hopes of getting a precedent-setting decision to overturn the trial judge’s action.

Wednesday’s court action does set a precedent — Cattani acknowledged there have been no other ruling ever in Arizona on the issue — but not the way Balson had hoped.

Cattani rejected Balson’s argument that the term “alleged victims” violates the girl’s rights because it calls into question whether a crime was committed and whether someone is, in fact, a victim.

“The term ‘alleged victim’ simply reflects the procedural posture of a case such as this in which the defendant disputes that any crime occurred,” the appellate judge wrote.

“Although ‘alleged victim’ connotes some degree of uncertainty as to whether a crime occurred, until a defendant has been convicted of a charged offense, the case involves an alleged criminal act against an alleged victim,” Cattani continued. “Characterizing the proceedings in this matter thus accurately conveys the procedural posture of the case and does not inherently violate a victim’s right to be treated with fairness, respect, and dignity.”

Balson had no better luck with her argument that the term “alleged victim” improperly suggests the girl is untrustworthy.

“The use of that term is not a comment on the victim’s credibility, just as the use of the term ‘defendant’ or — a more apt comparison — ‘alleged perpetrator’ is not a comment on the defendant’s credibility,” Cattani wrote. “Instead, such a reference simply avoids prejudging and reserves judgment on credibility issues, which are for the jury alone to decide.”

Still, Cattani said there may be situations where a trial judge can — and should — require that someone be referred to as the “victim.”

For example, he said, there are situations where there is no question that a crime has occurred but the only issue to be resolved is who committed that crime.

“The superior court could reasonably conclude that referring to the crime victim as an ‘alleged victim’ would mischaracterize the nature of the proceedings and be disrespectful to the victim,” Cattani said. But this case is different, he said, where there is a dispute as to whether any crime occurred.

And Cattani said that trial judges still retain the ability to keep defense attorney from referring to someone as an alleged victim in a sarcastic on insulting tone.

Beene, in his dissent, said requiring defense lawyers to refer to people such as this girl as a “victim” does not impair the ability of a defendant like Achenbach to get a fair trial.

He said jurors in criminal cases are told that defendants are presumed by law to be innocent, that the simple fact he is charged with a crime does not allow them to think he is guilty, and that a “not guilty” plea means prosecutors have the burden of proving each element of the crimes charged beyond a reasonable doubt.

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.

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.

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.

Ducey appoints Montgomery to high court

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 from members of the Commission on Appellate Court Appointments. (Capitol Media Services photo by Howard Fischer)

Gov. Doug Ducey appointed Bill Montgomery to the Arizona Supreme Court on Wednesday afternoon, making the controversial Maricopa County attorney Ducey’s fifth selection to the state’s highest court.

Montgomery’s appointment is Ducey’s second to the Supreme Court in 2019, and it’s also the second time Montgomery was up for the job. Montgomery failed to make it past a vetting procedure by the Commission on Appellate Court Appointments, but a revamped commission – with a number of new commissioners appointed by Ducey – advanced Montgomery as one of seven candidates for the governor to consider in July.

The governor, who tweeted his announcement, said he was looking for a justice who “had an understanding of the law, a well-developed judicial philosophy, appreciation for the separation of powers and a dedication to public service… More broadly, I was looking for an individual who wants to interpret the law – not someone who wants to write the law.”

“Bill Montgomery is that candidate,” Ducey wrote.

Ducey has already appointed Justices Clint Bolick, John Lopez, Andrew Gould and – earlier this year – James Beene.

Montgomery is clearly Ducey’s most controversial appointment in just under five years as governor. His appointment to the court was harshly opposed by the ACLU of Arizona and other progresive organization who criticized his political track record.

Opponents cited, among other critiques, prosecutorial misconduct that went unchecked under Montgomery’s watch in Maricopa County; a bungled use-of-force case in which Glendale police used an electronic stun gun on a man; and Montgomery’s well-known personal beliefs, such as his staunch opposition to marijuana, sentencing reform and certain LGBT rights.

Ducey’s appointment also comes one day after the Arizona Republic reported that a new ethics complaint, filed with the State Bar of Arizona, accused Montgomery of covering up misconduct by a top prosecutor in an internationally-watched murder case against Jodi Arias.

Montgomery’s appointment leaves a vacancy for the Maricopa County attorney. A temporary replacement will be chosen by the Maricopa County Board of Supervisors to hold the seat until the next election in 2020.

So far, only four Democrats have filed to run, but a Republican must be appointed to the seat to finish off Montgomery’s term.

Ducey picks Democrat for Court of Appeals

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.

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.

House approves tax exemption for pesticides, fertilizers

The Governor’s Office is working to revamp the state’s water laws. In this photo, an irrigation ditch provides water for a farm in the East Valley near Recker and Williams Field roads. (Photo by Ellen O'Brien/Arizona Capitol Times) — Farmland in Gilbert. (Photo by Ellen O’Brien/Arizona Capitol Times)

State lawmakers voted Monday to exempt farmers from having to pay sales taxes on the pesticides and fertilizers they put on the crops grown for food in Arizona.

The 32-28 vote by the full House came following pleas from lawmakers representing agricultural communities that it’s unfair to require those who grow food for Arizonans and people across the country to pay taxes on items they need. And Rep. Mark Finchem, R-Oro Valley, argued that the higher costs will be passed along to consumers, effectively making the tax paid by farmers a tax on the poor.

But the idea drew an angry reaction from several lawmakers who mentioned not just the loss of state tax revenues – potentially up to $19 million – but the idea that it would somehow reward farmers for the use of pesticides, insecticides, herbicides and fertilizers.

“We don’t want more chemicals in our food supply,” said Rep. Pamela Powers Hannley, D-Tucson, telling colleagues that one out of every 33 children born in Arizona has a birth defect. “I don’t want to encourage this.”

What’s behind HB 2275 sponsored by Rep. Tim Dunn, R-Yuma, who is a farmer, is a ruling in January by the state Court of Appeals in a bid by Wilbur-Ellis Co., a California company, to get a refund of more than $8.3 million in taxes collected on the sale of fertilizers, pesticides and seeds sold in the state.

Arizona’s sales tax is actually a “transaction privilege tax,” levied on the business that makes the sale, though the costs normally are passed along to customers.

Company lawyers first argued that state law does exempt the sale of “propagative materials” from taxes.

Appellate Judge James Beene, writing for the unanimous court, acknowledged there is no definition in the statute of what is “propagative.” But he cited definitions that say these are things that reproduce, like parts of a bud, tuber, root or shoot used to reproduce the original plant.

“Neither fertilizers nor pesticides reproduce or multiply plants,” Beene wrote, even though they do make propagating more efficient.

The appellate judges were no more sympathetic to the company’s argument that the chemicals were being sold to farmers for resale.

What’s behind that argument is a recognized principle in Arizona law only the final transaction is taxable. So if something becomes part of a product that is resold, like sheet metal that becomes part of an air conditioner, the sale of the sheet metal is exempt from taxes.

In this case, Beene said, the company argued that the farmers do not use and consume the fertilizers but instead convey the nutrients in the fertilizer to their customers.

“Simply because some of the nutrients in the fertilizers end up in the crops does not mean the farmers purchased the fertilizers for resale,” the judge wrote. “The farmers purchased the fertilizers for their own use in producing the agricultural products.”

HB 2275 seeks to redefine what’s taxable to specifically exempt a laundry list of chemicals from sales taxes ranging from fertilizers and insecticides to fungicides, soil fumigants, plant growth regulators and rodenticides.

But Rep. Mitzi Epstein, D-Tempe, said that goes directly against what the Court of Appeals ruled.

“We don’t eat the pesticides, the fungicides, the herbicides,” she told colleagues. Instead, Epstein said these chemicals are much more like light bulbs purchased by the owner of a factor.

“You need them to run the factory,” she said. “But they’re not a raw material.”

Finchem, however, said that ignores the role that these chemicals play in ensuring an adequate supply of food.

“The agricultural community has put everything they have into doing more with less,” he said. And Finchem said one of the ways farmers can do that is with fertilizers and pesticides, including natural ones.

“I actually see this as a direct attack on the individuals that have fewer dollars to spend for food in their homes,” he said.

And Rep. Bob Thorpe, R-Flagstaff, said 47 other states have similar exemptions from sales taxes.

But Powers Hannley said she sees the issue in more basic terms.

“I don’t want more chemicals in the food supply,” she said.

The measure now goes to the Senate.

This story has been updated to reflect the final House vote.

James Beene: Last stop on the bench

Newly-appointed Arizona Supreme Court Justice James Beene gravitated toward his profession in the same way a lot of young kids do — he fell in love with a book.

He reminisced about reading a popular piece of literature as a kid and how it shaped him into a legal career. Several years later, he reached a milestone he didn’t expect — to sit as a justice on the Supreme Court, and a historic appointment at that.

When Beene was appointed to the Maricopa County Superior Court, he became Gov. Jan Brewer’s first judicial appointment. He helped Gov. Doug Ducey make history with his fourth Supreme Court pick, and he is now just the second Hispanic to sit on the highest court in Arizona.

Beene still has two months before his first case, but he is definitely excited about this new gig.

You recently just got appointed. Can you tell me about the process this time around?

There was obviously some word getting around about [Justice John] Pelander planning to retire. When I heard, I contemplated wanting to move. It was a normal application process. I contacted people – the same ones I contacted for the Court of Appeals job. It had only been under two years since my appointment to the Court of Appeals.

What was different about this time?

There wasn’t really all that much in variation.

What type of questions did the governor ask you?

Questions about judicial philosophy, mostly. How would I go about deciding cases? What do I do in my off time, and where I get my news from? Standard interview questions.

And where do you get your news from?

A wide variety. I like Real Clear Politics. I’ll read anything from Huffington Post and Vox to The Washington Times. A very broad spectrum. I try to stay clear from TV news. It’s so vitriolic. So, I like a broad spectrum of reporting.

There was some controversy in the Legislature this session regarding how Ducey makes his appointments when it comes to diversity. How important is that in the judicial branch?

It’s constitutionally mandated to consider a diverse bench. The commission has to look into all qualifications, along with racial and ethnic backgrounds, diversity of experience and geography. There are a lot of layers of diversity the governor should look at. All entities do a very good job of vetting diversity.

Do you think it’s fair for Senator Martin Quezada to vote no on all candidates to the Commission on Appellate Court Appointments who do not represent a diverse background?

I don’t know if I really want to opine what senators say on the floor. We have a very healthy separation of powers and I know Quezada does a good job for his constituents and I wouldn’t want to take a position on whether that’s good or bad. He’s a fine public servant and we will leave it at that.

The first time you applied for the Supreme Court, you had just one year on the trial court. Why did you apply so early?

That was for Justice (Michael) Ryan’s vacancy. He had a unique background that he was a trial court judge and I believe at the time that there was not going to be anyone on the court with Superior Court experience and I think that’s definitely needed on the Supreme Court. The genesis of all our cases come from the trial court and I think it’s critical that at least some of the justices have trial court experience. With Justice Ryan’s retirement, that left a void in that regard and I wanted to make sure the commission and governor would appoint someone that did have some trial judge experience.

What do you think makes a good judge or justice?

Someone that can divorce their own personal feelings and opinions out of the case before you. Justice [Antonin] Scalia said it’s a poor judge that agrees with all his prior decisions. You have to come to grips with the fact that you’re not going to like all the decisions you make; and if you do like them, then you’re not that good of a judge. It’s easier said than done, because in the midst of a case, you do get invested.

Do you think the Supreme Court will be your final job?

I’m hoping that this is it. This is beyond my wildest expectations of a job, and who I get to work with, and the cases I will decide for 15 or so years; so this will probably be the swan song for my professional career. I don’t see myself retiring. I don’t know if my wife will let me come home any time before 70.

Why did you decide to get into law?

I remember my mom reading to me – or it was assigned in sixth grade, but we read it together – “To Kill A Mockingbird.” And that was just a pivotal piece of literature in my life. The whole story of Atticus Finch and the trial – something about that just grabbed me. That we had this system – civil or criminal dispute – you went in this arena, you put on evidence, arguments, and either a judge or a jury made a decision. And I just found that fascinating, and the more I read, the more I saw on TV, the more I was inclined to gravitate toward professional law. A lot of lawyers and judges have a history background. A lot of our great politicians and presidents are lawyers. It was just a natural kind of pull to that area.

I’m also a big fan of “To Kill A Mockingbird” and the movie, as well. Are there movies or shows you watch or avoid that portray law in any way?

They are fun to watch and I do watch them from time to time, but I have to say that at a certain point if something is just absolutely not how it happens in real life then I just start to laugh or make comments. I understand that it’s entertainment, but I’ve done long jury trials and there are times where I was asking questions of experts and it was about as exciting as watching paint dry or grass grow, but it had to be done. That wouldn’t fit into an hour-long “Law & Order SVU.” I get that.

As for the ones I watch … “LA Law” was a big thing in the ‘80s, but going back to when I was just thinking about what a lawyer even was, there were the “Perry Mason” reruns. So, I remember watching that with my mom. Those were litigators and I became a litigator. So, I can’t say that those didn’t impact me in some way. I wanted to be in the courtroom where I had seen and read where the action definitely was.

Montgomery supporters line up in bid for Supreme Court

Maricopa County Attorney Bill Montgomery, a leader of the effort to defeat Proposition 121, said a primary system in California similar to that proposed for Arizona has resulted in fewer independent candidates on that state’s general election ballot. (Cronkite News Service Photo by Lindsey Smith) — Maricopa County Attorney Bill Montgomery. (Cronkite News Service Photo by Lindsey Smith)

Their candidate squeezed out of the last screening, allies of Maricopa County Attorney Bill Montgomery are lining up to urge that he be nominated for the Arizona Supreme Court.

More than a dozen attorneys and public officials have submitted comments to the Commission on Appellate Court Appointments listing what they say are his qualifications to sit on the state’s highest court. That includes Attorney General Mark Brnovich, the state’s top prosecutor, who praised Montgomery’s “principled nature and dedication to the rule of law.”

More support is expected when the commission meets Friday to hear comments and interview the nine applicants to replace Scott Bales who retired earlier this month.

The outpouring is occurring four months after the same commission was deciding who to recommend to Gov. Doug Ducey to fill the vacancy created by the resignation of John Pelander. And Montgomery, criticized over positions taken on gay and civil rights, was not on the list of nominees.

Gov. Doug Ducey PHOTO BY KATIE CAMPBELL/ARIZONA CAPITOL TIMES — Gov. Doug Ducey
PHOTO BY KATIE CAMPBELL/ARIZONA CAPITOL TIMES

That list is crucial: The Arizona Constitution allows him to choose only from those nominated. And if Montgomery can’t get his name on it, he can’t be considered.

What’s changed since March is that the governor has replaced several commission members, including at least three who voted not to forward his name to the governor. But gubernatorial press aide Patrick Ptak told Capitol Media Services that his boss did not decide who to reappoint and who to replace based on their positions on Montgomery.

Critics

While Montgomery’s supporters are lining up for Round 2, so are some who contend that his biases would get in the way of being a judge.

Front and center are the Arizona chapter of the American Civil Liberties Union and Lambda Legal. Both are citing instances where they say Montgomery ignored the law.

One key incident both groups cite dates to 2015 when Montgomery, whose office is required to provide legal assistance to couples who are adopting, refused to do so for a gay couple even after a federal judge ruled that Arizona’s law banning same-sex marriage is unconstitutional. Montgomery contended that decision still did not provide the same rights of gays to adopt.

When that argument faltered, Montgomery pushed the Legislature to repeal entirely, for all couples, that requirement for free legal help. It was only a veto by Ducey that blocked the maneuver.

“It appears unlikely that he would be able to provide impartial justice to LGBT people and their families if he were appointed to the Arizona Supreme Court, let alone the appearance of impartiality,” attorneys for Lambda Legal which gets involved in issues of gay rights.

His views on gay rights also came into focus when he helped to kill a proposed rule for lawyers that would have made it an ethical violation for them to discriminate against clients based on their “gender identity.” So strong was his opposition that Montgomery even sent out a note saying that if the change is approved there will be a “strong effort” to eliminate the requirement that attorneys belong to the State Bar of Arizona.

That killed the plan.

“Mr. Montgomery has made clear over the course of many years that he is unwilling to treat LGBT people equally under the law,” the attorneys for Lambda Legal wrote.

But the view is different from Gary McCaleb, senior counsel of the Alliance Defending Freedom, a Christian public interest law firm, whose organization has often ended up on the other side of issues with Lambda Legal.

McCaleb, who also served on that task force about gender identity, defended Montgomery and the way he handled himself. He said Montgomery stated his opposition “in very measured, logical, and legally grounded terms.”

Alleged Bias

Analise Ortiz, campaign manager for ACLU Arizona, said Montgomery’s issues of bias go beyond sexual orientation.

That includes his 2014 decision to hire John Guandolo, a former FBI agent, to conduct training for law enforcement on the threat of Muslim terrorist groups. The invitation to the training said Guandolo, who left the FBI after an affair with a confidential source, said topics would include “threats posed to our local communities by Hamas, Hezbolla and Sharia Law.”

At the time, Imraan Siddiqi, president of the Council on American-Islamic Relations in Arizona, called Guandolo an “Islamophobe,” saying he was “creating a false correlation between being a Muslim and being prone to violence.”

Montgomery said at the time that the training was “mischaracterized” and said he was “comfortable” with it. But Ortiz said it raises questions about impartiality and whether Montgomery is capable of considering the impact of his decisions on all people.

On the positive side of the ledger, Montgomery also has secured endorsements from Ernest Calderon, a former president of the State Bard of Arizona, David LeBahn, CEO of the Association of Prosecuting Attorneys, Maricopa County Assessor Paul Petersen and several current and former staffers at the Maricopa County Attorneys Office.

Montgomery declined to comment on what has been submitted to the commission.

At least part of whether Montgomery makes the short list sent to Ducey depends on exactly how short that list turns out to be.

The voter-approved constitutional provisions for selecting appellate judges requires the commission to send at least three names to the governor. In that case, no more than two can be from the same party. So if the commissioners want to nominate just one of the two Democrat contenders, or just the Libertarian, they can send only two Republican names to Ducey.

More non-Republicans on the list mean more potential Republican nominees, though there is no set requirement for how many of the nine to be interviewed Friday can be sent. Last time, when Montgomery did not make the cut, the commission sent just five names to Ducey, three Republicans and two Democrats, before the governor chose Republican James Beene.

This will be Ducey’s fifth pick for the court. Aside from replacing two retiring justices – now three – the Republican-controlled Legislature also expanded the court from five to seven, giving Ducey two more slots to fill.

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Issue: James Beene