John Lopez | Arizona Capitol Times

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

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

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

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

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

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

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

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

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

Friday’s decision involves three cases:

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

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

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

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

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

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

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

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

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

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

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

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

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

Arizona 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.”

AZ Supreme Court changes criminal defense of duress

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 makes statement, rules against lawmakers

Rep. Andrés Cano, D-Tucson, right, speaks with Arizona House Speaker Rusty Bowers, R-Mesa, during a vote on the Arizona budget Thursday, June 24, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

The Arizona Supreme Court on Thursday issued a broad ruling that will change forever how state budgets are adopted.

In a 17-page ruling, the justices said the way lawmakers have been piling unrelated issues into last-minute “budget reconciliation” bills is unconstitutional.

They voided provisions of four budget-related bills because their legally required titles did not reflect what actually was in the measures. And they separately concluded that one of the bills, with 52 sections and 30 distinct subjects, also violated a separate constitutional ban on legislation dealing with more than one topic.

In doing so, the court reasserted its authority as the ultimate arbiter of what the other branches of government can and cannot do.

The justices said that they — and not the legislature — determine whether an act is constitutional. And in an often strongly-worded decision, they rejected various arguments that lawmakers are entitled to wide latitude in deciding how to craft statutes and the budget.

But the real effect of the ruling is that it finally will end how legislative leaders corral the votes for certain controversial items. And that, in turn, could empower whichever party is in the minority.

What has happened until now is that individual lawmakers in the majority party threaten to withhold their votes for the entire budget unless they get some particular provision inserted. And often these are bills that could not get approved on their own.

This year’s budget package is no exception. It is filled with items that either failed on their own or never even got a hearing but became must-have items for some lawmakers.

Among the examples is a ban on the teaching of so-called “critical race theory” in public schools, a bill that never was voted on separately by either the House or Senate. But it wound up in legislation labeled

“K-12 education; budget reconciliation.”

That meant anyone who wanted what else was in that bill, which included changes in state aid to public schools, had to go along.

The justices said the situation was even more pronounced in SB 1819, labeled as “Appropriating monies; relating to state budget procedures.”

“SB 1819 contains 52 sections and spans approximately thirty distinct subjects, including matters ranging from dog racing, the lottery, voter registration, election integrity, the governor’s emergency powers, the Board of Trustees’ (of the Public Safety Personnel Retirement System) duties and powers, the definition of ‘newspaper,’ political contributions, management of the state capitol museum, and COVID-19,” wrote Justice John Lopez for the unanimous court. And that in turn forced lawmakers into an all-or-nothing situation.

That need to “buy” votes for the budget by including policy issues package is enhanced in situations like now where Republicans have just a one-vote majority in both the House and Senate, meaning a single lawmaker can thwart desires of GOP colleagues.

“There were a lot of things put into those budget reconciliation bills because we had so many members that said, ‘I’m not on the budget unless I get X,’ ” said Senate President Karen Fann, R-Prescott. More to the point, she said, they had leverage.

“After 171 days and no budget passed, and we’re getting close to July 1 and the new fiscal year where departments need to be funded and everything else, yeah, we did put stuff in there,” she told Capitol Media Services.

House Speaker Rusty Bowers, R-Mesa, said the ruling now gives him and Fann some backing for their refusal to do that.

“It kind of helps us hopefully make the point that there are certain things you can’t do,” he told Capitol Media Services. “So, if that’s what that decision says, it’s good for me.”

The flip side, however, is it removes a bargaining chip that leadership has had until now to get the needed majority among Republicans for the budget.

“It’s just going to cost me more,” Bowers said. “I’m just going to have to go deal with somebody else.”

And that could mean getting the necessary votes from Democrats who have argued repeatedly that they have not been consulted on budget items because, until now, the Republicans have not needed their votes.

House Minority Leader Reginald Bolding, D-Laveen, said he welcomes the idea of greater Democratic influence on the annual spending package.

“My hope is this really is an opportunity to get back to what Arizona is trying to do,” he told Capitol Media Services, pointing out that the partisan split in both the House and Senate is nearly 50-50.

“We’ve always taken a position as a caucus that we’re 100% in favor of a bipartisan budget, a budget that includes both Democratic and Republican priorities,” he said. “We just have not seen that the governor, the speaker or the president really operate that way.”

Fann, however, said it will still require some flexibility on the part of Democrats.

She said GOP lawmakers made it clear last year that the budget had to include some tax cuts for them to support the spending plan. But Fann said not a single Democrat was willing to even consider the issue.

“So that shut down those conversations,” she said, leaving GOP leadership little choice but to agree to some of the demands to put non-budget items into the package.

“Had I had a few Democrats that would have come onboard with the budget, or even some of the budget items, when we wouldn’t have had to play Whac-A-Mole, if you will, with the other members of putting things in there that really didn’t belong in the budget,” Fann said.

Bolding said the ruling also could curb some more radical ideas from becoming law — or at least bring them to light.

Right now, he said, individual lawmakers are shielded from being held accountable for voting for a specific measure because it is buried in a more comprehensive budget bill.

“Republican members who don’t support bad policy will now be forced to vote on the board for those bad policies,” Bolding said. “And we’ll see if they have the courage to vote against them — or not.”

Thursday’s decision is also consequential for the court’s broad rejection of claims by lawmakers that they — and not the justices — get to decide whether what they do is constitutional.

“We reject this untenable proposition,” wrote Lopez.

“This case implicates our court’s core constitutional authority and duty to ensure that the Arizona Constitution is given full force and effect,” he said. “The responsibility of determining whether the legislature has followed constitutional mandates that expressly govern its activities is given to the courts — not the legislature.”

Lopez said it would be one thing if a dispute is over a political issue that is beyond the ability of the court to resolve.

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.

Federal lawsuit challenges law to regulate signature gatherers

A new lawsuit seeks to strike down a statute that can invalidate otherwise legitimate and qualified signatures on an initiative petition.

Attorney Sarah Gonski said the requirement unconstitutionally “discourages the people of Arizona … from exercising their fundamental right to make law without consulting the Legislature.” She is asking U.S. District Court Judge Susan Bolton to block Secretary of State Katie Hobbs from enforcing the requirement.

Gonski may have an uphill battle.

The statute in question was upheld just this past year by the Arizona Supreme Court. But Gonski is trying a different path of attack, alleging that it runs afoul of protections in the U.S. Constitution.

Arizonans can propose their own constitutional amendments and laws by gathering enough signatures to put the issue directly to voters.

The 2014 law, which passed without significant debate, spells out that paid circulators and those who do not live in Arizona must first register with the Secretary of State or their signatures collected do not count.

More significant, it allows those trying to keep a measure off the ballot to subpoena those circulators. And if any circulator who has to register does not show up, then all the signatures that person gathered can be struck, potentially leaving the petition drive short of its goal.

One of the plaintiffs is Next Gen Climate Action Committee which pushed an unsuccessful measure last year to impose new renewable energy mandates on utilities. Gonski, arguing on behalf of the organization, said the statute has taken its toll, citing the experience of Jessica Miracle, a paid petition circulator on that measure.

Subpoenaed by foes of the measure, the lawsuit says Miracle could not attend because her children were sick, she did not have her own transportation to Phoenix, and no one would tell her clearly how many days she would need to be in Phoenix.

The result, according to Gonski, was that all of the 2,604 signatures Miracle gathered were invalidated.

Gonski said the law is not just unfair to circulators.

One of the plaintiffs in the lawsuit is Mary Katz, listed as a Phoenix resident and registered voter.

According to Gonski, Katz signed that renewable energy measure.

“But her signature was later invalidated when the circulator who witnessed it was unable to appear in court when subpoenaed,” the lawsuit states. And Gonski said Katz was not told until long after the election that her signature has been invalidated, meaning there was no way for her to go to court to tell the judge that it was, indeed, a valid signature.

The other key plaintiff in the case is Arizonans for Fair Lending which is currently circulating petitions to enact a law to outlaw title loans. Rod McLeod, who is managing that campaign, said the law has now become a tool for challengers to use to keep measures opposed by certain business interests from ever getting to voters.

He pointed out that challengers to the renewable energy measure issued subpoenas for about 1,180 circulators. McLeod said it was clear from the start there was no way they were going to question that many people in the one week the judge had set aside for trial.

In fact, Gonski said, out of the 913 circulators who appeared, 872 were sent home without ever being asked a single question about their work.

McLeod said challengers know that, using the massive subpoenas “just for intimidation” in hopes that some people would not show up, allowing all the signatures they gathered to be voided. And that could become an issue as his organization seeks to obtain the 237,645 valid signatures it needs by July 2, 2020, to put the title loan measure on the 2020 ballot.

The tactic of issuing subpoenas to disqualify signatures actually worked last year, though it didn’t involve nearly as many subpoenas.

At issue was an initiative to insert a “right-to-know” provision in the Arizona Constitution, requiring any group seeking to influence a political race or ballot measure to reveal the identity of anyone who contributed more than $10,000.

Challengers issued subpoenas for 15 circulators, leaving them with a security guard at an office building which had been used by a company that had hired the paid circulators. When none appeared, the judge disqualified the 8,824 signatures they had collected, leaving the petition drive short.

Attorney Kim Demarchi challenged the law in that case in a bid to put the “Outlaw Dark Money” measure on the ballot. She argued that a circulator’s signatures should be tossed only when there is a “valid objection” to the circulator or the “need for a circulator’s testimony.”

But Supreme Court Justice John Lopez, writing for the unanimous court, said the constitutional right of people to propose their own laws and constitutional amendments “is, and must be, subject to reasonable regulation.” And he said requiring circulators to appear in court and tossing their signatures if they don’t show “furthers the constitutional purpose of the initiative process by ensuring the integrity of signature gathering by reasonable means.”

Gonski, in her new lawsuit, argued to Bolton that the law is unfair and discriminatory. She pointed out that lawmakers decided the requirement to registering paid and out-of-state circulators and allowing their signatures to be struck if they don’t show up, applies only to ballot measures and not to nominating petitions for political candidates.

“There is no evidence to suggest that initiative petitions are more susceptible to fraud than candidate nomination petitions, nor that paid or out-of-state circulators are in need of special punishment above and beyond other circulators to compel their attendance in court,” she wrote.

A spokeswoman for Hobbs, who is the defendant in the case, said her office was reviewing the challenge.

The case presents an interesting situation for Hobbs: She actually voted for the measure when she was a state senator in 2014. In fact, all but two Senate Democrats supported it: Andrea Dalessandro of Green Valley and Robert Meza of Phoenix.

Correction: A previous version of this story erroneously reported that Arizonans for Fair Lending needed to enough signatures by July 2 to make the 2018 ballot. The group actually has until July 2, 2020, to make the 2020 ballot.

Hobbs asks court to dismiss challenge to 2014 election law

Secretary of State Katie Hobbs is urging a federal judge to throw out a challenge to a law that could make it more difficult for groups to put initiatives on the ballot.

In new legal filings, attorneys for Hobbs are defending a 2014 law which says that if petition circulators do not show up in court then all the signatures they gathered will not be counted, regardless of whether it turns out they actually were valid. Hobbs said the law serves a legitimate state purpose and does not unduly burden the right to circulate petitions or to vote.

Hobbs also brushed aside arguments that the law violates the First Amendment by making it less likely that initiatives will qualify for the ballot.

“The First Amendment does not mandate that ballot access be easy,” wrote Assistant Attorney General Joseph La Rue who is defending her and her office.

“There is no first Amendment right to place an initiative on the ballot,” he argued in the new legal papers to U.S. District Court Judge Susan Bolton. “The fact that a regulation makes it less likely that initiatives will be enacted is therefore not constitutionally determinative.”

The 2014 law, which passed without significant debate – and which Hobbs voted for as a state senator – spells out that paid circulators and those who do not live in Arizona must first register with the secretary of state or their signatures collected do not count.

Attorney Sarah Gonski represents several individuals and groups that have been involved in prior ballot measures. One of the plaintiffs is Jessica Miracle, a paid petition circulator on the 2018 proposal to impose new renewable energy mandates on utilities.

The measure still made the ballot but was defeated.

Hobbs, in the new legal filings through her attorneys, said the 2014 law is simply an extension of existing laws designed to protect the integrity of the initiative process.

For example, La Rue wrote, one requires a circulator to personally witness each signature.

“This requirement discourages those signing petitions from forging other electors’ signatures on petition sheets,” the legal papers state. Similarly, he cited the provision that says circulators must be qualified to register to vote in Arizona, meaning they cannot be felons unless their civil rights were restored.

“This helps ensure circulators have not been convicted of crimes that might call into question their trustworthiness,” La Rue wrote.

All of that, he said, goes to the nature of the 2014 law which requires Hobbs to remove signatures collected by circulators who have not complied with subpoenas.

“This assists the secretary in fulfilling her statutory duty to uphold the integrity of the initiative process for everyone by only certifying for the ballot those initiatives that have fully complied with applicable legal requirements and gathered sufficient signatures,” La Rue argued.

A spokeswoman for Hobbs said the secretary “has an obligation to enforce and defend duly enacted state law in good faith” but declined to comment on the specifics of the law or the lawsuit.

This isn’t the first challenge to the requirement.

A separate lawsuit was brought in state court by attorneys for the 2018 “Outlaw Dirty Money” campaign after a trial judge ruled there were no longer enough valid signatures after several petitions were disallowed due to the failure of circulators to show up. Attorney Kim Demarchi argued in that lawsuit that signatures should be tossed only when there is a “valid objection” to the circulator or the “need for a circulator’s testimony.”

But Supreme Court Justice John Lopez, writing for the unanimous court, said the constitutional right of people to propose their own laws and constitutional amendments “is, and must be, subject to reasonable regulation.” And Lopez said requiring circulators to appear in court – and tossing their signatures if they do not show – “furthers the constitutional purpose of the initiative process by ensuring the integrity of signature gathering by reasonable means.”

No date has been set for a hearing on the latest federal court lawsuit.

Justice John Pelander retiring from Arizona Supreme Court

Arizona Supreme Court Justice John Pelander announced Tuesday that he plans to retire, giving Republican Gov. Doug Ducey the chance to appoint his fourth justice to the seven-member high court.

Pelander told the governor that he will retire on March 1. Voters retained him to the high court in November.

The longtime jurist was appointed to the court by former Gov. Jan Brewer in July 2009 after serving 14 years on the state Court of Appeals in Tucson. He had previously been in private practice, chiefly defending corporate clients in civil cases.

Pelander stepped down as vice-chief justice of the Supreme Court early last year, saying if he was elevated to chief justice as expected under the normal rotation he would reach retirement age before the five-year term expired.

Ducey signed legislation expanding the court from five to seven justices in 2016 and appointed two new members of the court, John Lopez and Andrew Gould. In 2016, he appointed Clint Bolick to the court to fill a vacancy.

The Republican governor will pick from a list of justices sent to him by an appellate court nominating commission under the state’s merit selection system for choosing many judges.

Pelander has long served on legal committees and organizations focused on improving the legal profession. In his resignation letter to the governor, he said he was grateful for the work, the Supreme Court’s members and staff and for the merit selection process.

“For some twenty-three years, Justice Pelander has been an exemplary judge – a model for his wisdom, collegiality, and commitment to fairly upholding the law,” Chief Justice Scott Bales said in a statement. “He will be greatly missed by his colleagues on our Court and others in the judiciary, and we wish him the best in his retirement.”

The seven-member Supreme Court oversees the state’s judicial system, hears automatic appeals of death sentences and considers civil and criminal appeals, with its decisions providing final interpretations of constitutional questions.

Justices explain why Invest in Ed measure booted from ballot

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

Citing confusing language that could trip up voters, five of Arizona’s Supreme Court justices explained their decision to bar a citizen initiative to raise taxes for education in a ruling released Friday morning.

Vice Chief Justice Robert M. Brutinel, joined by justices John Pelander, Clint Bolick, Andrew Gould and John R. Lopez favored throwing the Invest In Ed initiative off the ballot, a decision that drew the ire of teachers and public school advocates throughout the state. Their explanation was penned anonymously — the ruling was issued “per curiam,” meaning no one author takes credit for the written opinion.

Those justices determined that the “description of the initiative’s principal provisions omitted material provisions and created a significant danger of confusion or unfairness to those who signed petitions to place the measure on the ballot.”

The key omissions included a failure to address the initiative’s impact on income tax indexing, a change that would affect all Arizona taxpayers, and a strict reading of the initiative’s effect on income tax rates for wealthy Arizonans.

Invest In Ed backers hoped to raise taxes on Arizona individuals earning more than $250,000 annually and households earning more than $500,000.

The opinion was exactly as Gov. Doug Ducey’s campaign staffers had predicted it would be, having told reporters back in August the decision was a 5-2 split with the same two justices dissenting. When two reporters revealed the information on a local TV news program, the governor and his campaign dismissed the information as a rumor that was presented to the reporters as such.

A representative from the Invest in Ed committee said the Supreme Court overstepped by striking the initiative from the ballot and release of the full opinion raised concerns about Arizona’s political system being “rigged” against voters.

Invest in Ed co-chairman Josh Buckley said his greatest concern with the ruling is that it gives the Republican-controlled Legislative Council major leeway in describing and interpreting ballot initiatives, regardless of its drafters’ intent.

In the opinion, a majority of the justices suggested that had the Invest in Ed language been submitted to the nonpartisan Legislative Council staff for review prior to volunteers circulating petitions, the staffers may have altered the language to a point that the initiative could have gone on the ballot.

But Buckley also said the appearance that Ducey’s campaign knew about the ruling before the general public is troubling.

“Leaks concerning the outcome of the Supreme Court vote, the identity of the dissenters and the timing of the opinion all raise concern about improper communications between the Court and outside interest groups,” he said in a statement.

Some have blamed the decision on Ducey and legislative Republicans boosting the size of the court from five justices to seven, allowing the governor to appoint to new justices, Gould and Gomez. But that maneuver had no effect on the outcome, which would have been a 3-2 decision without expansion.

“We greatly respect the initiative process, including the civic activism required to collect the signatures necessary to qualify a ballot measure, and we do not lightly disturb the fruits of such efforts,” the five justices wrote. “However, we must do so, as the Court has done in various prior circumstances, when essential requirements necessary to qualify a measure are not adequately followed.”

Chief Justice Scott Bales and Justice Ann Scott Timmer dissented, and each wrote opinions explaining their rationale.

The justices also avoided issuing a ruling on the constitutionality of strict compliance, and did not address a Maricopa County Superior Court ruling that the law is unconstitutional.

In responding to the opinion released Friday, Ducey spokesman Daniel Scarpinato doubled down on the campaign’s stance that they had no inside information on the ruling, and instead that they heard a rumor about the vote split.

Scarpinato referred the Arizona Capitol Times back to a statement issued more than a month ago in response to an Arizona Republic column questioning why Ducey’s campaign purported to know the vote split. The statement said Ducey did not know the vote, and that his campaign simply shared a rumor with reporters on background.

Carmen Forman contributed to this report.

Justices: Subpoenaed petition circulators must show for court

The Arizona Supreme Court has upheld the constitutionality of a legal tactic used by those seeking to keep voter-proposed laws off the ballot.

In a unanimous ruling Wednesday, the justices reaffirmed the right of people to craft initiatives and seek to have them approved.

“And we are reluctant to impede such civic efforts,” they said.

But Justice John Lopez, writing for the court, said there is nothing unduly burdensome about requiring paid circulators to register and provide an address where they can be subpoenaed. More to the point, Lopez said throwing out the signatures collected by those who don’t show up in court does not impair the constitutional rights of people to propose their own laws.

Wednesday’s ruling most immediately explains the decision the justices made months ago to block a vote on the “Outlaw Dirty Money” proposal. But the implications go far deeper, providing a legal road map for others who want to challenge ballot measures.

“It’s going to be almost impossible for anybody who doesn’t have incredibly deep pockets to carry a petition using paid circulators,” said Terry Goddard who was the prime moving force behind the measure the Supreme Court knocked off the ballot.

The initiative would have inserted a “right-to-know” provision in the Arizona Constitution requiring any group seeking to influence a political race or ballot measure to reveal the identity of anyone who contributed more than $10,000. Organizations that the Arizona Legislature has exempted from disclosure and would have been forced to identify donors sued, contending there were not enough valid signatures.

Challengers issued subpoenas for 15 circulators, leaving them with a security guard at an office building which had been used by a company that had hired the paid circulators. When none of the circulators appeared at trial, the judge disqualified the 8,824 signatures they had collected.

It was ultimately ruled that the initiative drive came up short of the 225,962 valid signatures needed to qualify for the ballot.

Attorney Kim Demarchi, representing the initiative drive, challenged the automatic disqualification of the signatures as unconstitutional. She argued that a circulator’s signatures should be tossed only when there is a “valid objection” to the circulator or the “need for a circulator’s testimony.”

Lopez acknowledged that it took a lot of work to gather the signatures.

“We do not discount the civic activism or the resources devoted to this campaign,” he wrote.

But Lopez said the right of people to propose their own laws and constitutional amendments “is, and must be, subject to reasonable regulation of the initiative process.”

And in this case, he said, requiring circulators to appear in court and tossing the signatures they gathered if they don’t show up it fits within what can be regulated.

“The statute represents a reasonable means of fostering transparency, facilitating the judicial fact-finding process, including compliance with valid compulsory process, and mitigating the threat or fraud or other wrongdoing infecting the petition process,” Lopez wrote. “It furthers the constitutional purpose of the initiative process by ensuring the integrity of signature gathering by reasonable means.”

Goddard, however, suggested the justices got it backwards.

He said the prime concern should be to determine, in whatever way possible, whether an individual’s signature is valid. Goddard said what the court has ruled is that otherwise valid signatures can be disqualified solely because the person who collected them didn’t show up in court.

That gets to the issue of the additional financial burden.

“You not only have to get valid signatures but then you have to keep the circulator around and have them appear at a hearing or all their signatures are going to be determined invalid,” said Goddard, a former state attorney general. “I think that undercuts our citizens’ right to petition our government, which is guaranteed in the constitution.”

The justices also rejected the contention that the subpoenas could not be enforced because they were not properly served. Rather than being left with the individuals — or even with an adult at the office that the petition company had rented — 14 of the subpoenas were left with a guard stationed on the first floor of the office building.

Lopez said that was a reasonable effort at serving the subpoenas.

Anyway, he said, requiring subpoenas to be served in person or at a specific office address “would encourage a circulator to register a statutory service address beyond the reach of a process server.” And that, said Lopez, would remove the deterrence of circulators to commit fraud because they could never be called to court to account for their actions.

But Goddard said that is contrary to court rules which require reasonable efforts be made to ensure people know they have been subpoenaed.

“Most tenants in a building don’t say, ‘If you want to subpoena me for a trial it’s OK to just leave it with a guard,” he said.

State Supreme Court gives deported man second chance at trial

A defendant who got bad legal advice in a criminal case that resulted in his deportation is entitled to a do-over in that case, the Arizona Supreme Court ruled.

In a unanimous ruling Tuesday, the justices said that Hector Sebastion Nuñez-Diaz never would have entered into a plea deal on a drug charge had he been informed it would result in his automatic removal from this country.

Justice Scott Bales said Nuñez-Diaz made it clear from the beginning in hiring his first lawyer that his main concern, being in this country illegally, was to avoid deportation. And Bales said the lawyer failed to make it clear that the guilty plea, even with the sentence of probation, automatically resulted in his transfer to Immigration and Customs Enforcement.

But it remains unclear whether Nuñez-Diaz, currently in Mexico, actually will get back into this country given that, at the time of his arrest, he already was a “deportable immigrant.”

Ray Ybarra Maldonado, his current attorney, said he hopes to now get a new trial for Nuñez-Diaz, one where ICE would allow him back into the country so he could plead innocent to the charges. That, said the lawyer, could give him a chance to escape automatic deportation.

But Ybarra Maldonado acknowledged it is possible that, even if his client is acquitted he still could end up deported. Still, the attorney said, it is a far cry from the automatic expulsion.

According to court records, Nuñez-Diaz initially was charged with a pair of drug-related felonies.

His family contacted a lawyer from what the court said was an attorney from a Phoenix law firm experienced in criminal defense and immigration law. They retained the law firm after being told that while Nuñez-Diaz had a difficult case, it was possible to avoid deportation.

The lawyer assigned by the firm advised Nuñez-Diaz to take a plea deal to a single felony which resulted in probation. Only then was he informed by ICE that, because of the deal, he could not be released on bond and would be deported.

Only then did an immigration attorney at the same law firm tell the family that, because of the plea, nothing could be done.

The family found another attorney who was able to negotiate for his voluntary removal to Mexico where he has remained.

Bales said the Sixth Amendment guarantees a defendant the right to counsel.

“The right to counsel includes the right of effective assistance of counsel,” Bales wrote.

He said that, generally speaking, an attorney advising a client to take a plea need do no more than advise someone who is not a citizen that the pending criminal charges “may carry a risk of adverse immigration consequences.” But Bales said when those consequences are clear “the duty to give correct advice is equally clear and counsel must inform their client of those consequences.”

That, said Bales, is the case here.

He said the crime to which Nuñez-Diaz agreed to plead guilty falls into a category that not only would result in deportation but permanently prevent him from ever returning to this country. And Bales said the trial judge who heard his claim agreed that, had he been accurately advised, he would not have accepted the plea.

What happens now is yet to be determined.

“Our plan is once the first hearing is set in Superior Court that we ask ICE to parole him in,” said Ybarra Maldonado. But he said that’s at the federal agency’s discretion.

He acknowledged his client’s unauthorized status in the United States. But Ybarra Maldonado said that doesn’t mean Nuñez-Diaz will be deported again if he beats the drug charges.

“I definitely think he’s in a much better situation if he’s in ICE custody without any criminal conviction versus with criminal conviction,” the attorney said.

“Someone without a criminal conviction can ask for a bond hearing from the judge and get on the outside and fight the immigration case for even three, four, five years,” Ybarra Maldonado said. “And who knows what could happen in that amount of time?”

For example, he said, there could be immigration reform allowing people who came to this country illegally as children to remain permanently. And he said while Nuñez-Diaz is not in the Deferred Action for Childhood Arrivals program he might still be able to qualify.

While Tuesday’s ruling that Nuñez-Diaz did not get effective assistance of counsel was unanimous, not all of the justices were convinced that is the correct result.

Justice John Lopez, in a separate opinion, said he did not believe that Nuñez-Diaz could prove he was prejudiced by the bad legal advice because he already was subject to deportation.

“Here, it would not have been rational for Nuñez-Diaz to go to trial to avoid deportation when he was deportable no matter the outcome of the case,” Lopez wrote.

And Justice Clint Bolick questioned whether there are now two different standards for people to claim they had ineffective assistance of counsel, one for people who are here legally and another for those who are not.

Bolick acknowledged that the ruling in this case comports with a prior U.S. Supreme Court decision about the remedies for what happens when a lawyer’s advice falls below what would be reasonable. But he urged the nation’s high court to reconsider that decision, saying it “places unnecessary burdens on Arizona courts.”

Supreme Court denies review of ruling against political law firm

A Phoenix law firm known for its political involvement and lawsuits will have to pay nearly $150,000 in legal fees over what a court concluded was unfounded litigation to try to stop what has become the largest medical marijuana cultivation facility in the state.

Without comment, the Arizona Supreme Court has refused to review a ruling of the Court of Appeals which found not only that the penalty was appropriate but also took a slap at the attorneys from Statecraft LLC, the firm that filed the lawsuit against the Town of Snowflake and Copperstate Farms. In essence, that appellate ruling upheld a trial court decision which found the whole challenge to be not only without legal merit but frivolous.

But Kory Langhofer, one of the attorneys at Statecraft involved in the case, insisted that the trial judge “simply got it wrong.”

He warned of implications of the Supreme Court decision to leave the lower court rulings intact, saying it “will inevitably chill thoughtful cases of first impression in Arizona courts.” Langhofer said that is why some nonprofit organizations filed legal briefs urging the Supreme Court to review the issue.

That argument about chilling litigation, however, already was rejected by the Court of Appeals.

“There is no public interest in a frivolous lawsuit, and discouraging groundless litigation is what the legislature intended,” the appellate court concluded. In fact, the appellate judges said the law on legal fees “was enacted with the express purpose of reducing frivolous claims by increasing the threat of sanctions.”

At the heart of the fight is the 2016 decision by the town to issue a special use permit to Copperstate a limited liability company, to grow marijuana in an existing greenhouse the firm had purchased from a company that previously had grown tomatoes and cucumbers.

Several residents represented by Statecraft filed suit, charging violations of open meeting laws, setback requirements and what they called “illegal contract zoning.”

Navajo County Judge Donna Grimsley eventually dismissed the case. More to the point in this case, she said Statecraft had to pay the legal fees of both the town – about $40,000 as computed by an appellate court – and $109,000 to Copperstate in fighting the case.

Statecraft appealed.

But in a unanimous ruling last year – the one the Supreme Court refused this week to review – the Court of Appeals said there was more than enough evidence for Grimsley to conclude that the lawsuit never should have been filed in the first place.

For example, take the claim that the agreement between the town and Copperstate constituted “contract zoning.”

The appellate judges said they agreed with Grimsley that there is no such claim under Arizona law. And even if there were, the facts “clearly demonstrated that the town did not bargain away its zoning powers.”

As to claims by a neighbor that the operation violated setback requirements, the court noted that the resident actually lived in an area zoned for light industrial use and therefore had no basis to make that argument.

And then there’s Grimsley’s conclusion that Statecraft was acting improperly to impede Copperstate from its lawful business.

Part of that was based on an article from the White Mountain Independent about a recall effort launched against council members who had approved the special use permit.

Kenneth Krieger, a retired chiropractor from Peoria, told a reporter he had been recruited to head the recall committee by Langhofer to stop the facility.

That news article became part of the trial court’s conclusion that “Statecraft attorneys knew their actions were not made in good faith.” And the appellate court rejected arguments that the news article should not have been considered in the fight over the legal fees, pointing out that the law firm itself had introduced the article into evidence.

“We do not allow litigants to benefit on appeal from errors they introduced,” the appellate court said.

Statecraft has represented business interests and the Arizona Republican Party in multiple lawsuits, several involving successful efforts to knock initiatives off the ballot. That most recent included a proposal for an increase in income taxes on the most wealthy to fund education and a plan to ban anonymous contributions to political campaigns.

Supreme Court Justices Clint Bolick and Andrew Gould voted to grant review while Vice Chief Justice Robert Brutinel and Justice John Lopez did not participate in the matter.

Correction: This story erroneously reported that the sanctions were nearly $40,000, when in fact the amount was nearly $150,000. Statecraft was ordered to pay $40,000 in legal fees to the Town of Snowflake, and $109,000 to Copperstate Farms. The original version also erroneously reported that the Supreme Court upheld a Court of Appeals ruling, when in fact the Supreme Court refused to review the appeal from the Court of Appeals. The revised version also includes statements from Kory Langhofer, managing partner of Statecraft.

Supreme Court opens door for more privacy intrusion

The Arizona Supreme Court from left are James Beene, Andrew Gould, Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery.

An Arizona Supreme Court ruling January 11 allows police to obtain information about people’s internet activity and identity without first getting a search warrant, making it easier for the government to see what most consider to be private information about their online habits.

In an unusual 4-3 split decision, the majority said police may obtain internet users’ IP addresses and personal information they give their internet service providers using only subpoenas. Combined, this information can be used to uncover people’s identities, internet activities and otherwise-anonymous internet speeches.

The ruling stems from a 2016 Tucson Police Department child pornography investigation in which an undercover detective posted advertisements to an online forum asking for child pornography.

After William Mixton responded with images and videos of child pornography, federal agents issued a subpoena for his IP address, followed by another subpoena to his internet provider, which generated his name, street address and phone number. A search warrant for Mixton’s residence uncovered his possession of child pornographic material.

Mixton was convicted on 20 counts of sexual exploitation of a minor under 15 years old and appealed, arguing the information that led to his arrest was protected by the Fourth Amendment and required a search warrant to be obtained, not a subpoena.

The case looks to be the first in Arizona to closely explore the state Constitution’s protections of “private affairs” and a federal court precedent from the 1970s saying information a person provides to a third party, like an internet provider, holds no “reasonable expectation of privacy” and therefore doesn’t require a warrant for police to obtain.

The majority opinion, written by Justice John Lopez, said because internet users can protect their IP addresses by taking measures like using public libraries, public WiFi at private businesses or a VPN, they do not have “reasonable expectation of privacy” for that information.

Lopez said much of the data users give to tech companies is used to track them anyway, sometimes pinpointing their identities or tracking them across apps and websites.

The dissenting opinion, written by Justice Clint Bolick for himself, Chief Justice Robert Brutinel and Vice Chief Justice Ann Scott Timmer, argued that allowing police to access that information without a warrant violates Arizonans’ right to privacy under Arizona’s Constitution.

Many consider the state Constitution more broadly protective of privacy than the U.S. Constitution’s protection against unreasonable search and seizure. It promises “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

The dissent argued that because the information provided by an IP address or to a service provider is necessary to use the internet at all, and is provided “for a limited purpose and with the expectation it will not be shared with others,” it qualifies as a “private affair” and the government should have no more right to access it freely than it does to look through a person’s text messages or credit card information.

“The notion that anything one must share for purposes of voluntary transactions is thereby subject to government inspection would eviscerate any meaningful notion of privacy,” Bolick wrote.

The majority said IP addresses and information given to internet service providers are not a “private affair,” as they do not reveal intimate details about a person, a person’s online activities are regularly shared for other reasons, and the information in question belongs to the third party provider, not the person who shared it.

Although Mixton desired anonymity during his exchange with the undercover detective, he had no reason to assume he would remain anonymous because information connecting his activities to his computer was exposed through his unconcealed IP address, Lopez wrote.

While the dissent said accessing a user’s internet information without a warrant violates their right to anonymity, Lopez compared an IP address to a return address on an envelope.

“Although we embrace the principle of anonymous speech and recognize its inestimable contribution to our liberty, authoring an essay under the pseudonym ‘Publius’ does little to preserve the author’s anonymity if the exterior of the envelope containing the essay reads ‘From the Office of Alexander Hamilton,’” Lopez wrote.

According to Paul Bender, law professor and dean emeritus for Arizona State University’s Sandra Day O’Connor College of Law, the split decision on the case is “extremely unusual,” and opens up a conversation about the Arizona Constitution’s privacy clause, which he said has almost never been used.

“That is significant, not only for itself but also because it may indicate the character of the Arizona Supreme Court may be changing,” Bender said. Traditionally, justices have tried to be unanimous as much as possible, but this may be the start of a trend toward more division, he said.

“There’s a big opening here for the Arizona Constitution to give more significant protection,” Bender said. “And the fact that three justices want to do that is quite significant. That hasn’t happened in the past, except in much more minor technical matters.”

While the decision speaks to a very specific type of information, Bender and Paul Avelar, an attorney for Institute for Justice, said the decision opens up a new conversation about privacy in Arizona courts.

Avelar said when people think about the Constitution’s protection against searches and seizures, they often think of people accused of “horrible crimes, as is the case with Mixton himself,” but that this decision has implications for any Arizonan.

“This decision does most specifically free up government to, without a warrant, access information about your IP addresses, where you are, subscriber information and things like that,” Avelar said. “People should understand that this is not a decision that just affects accused criminals or even convicted criminals, it is an issue that affects all of us.”

Supreme Court rules judges don’t need to justify juror dismissals

The Arizona Supreme Court on Thursday unanimously ruled that trial judges in the state do not have to give explicit evidence for demeanor-based jury strikes unless the explanation offered by the prosecutor is deemed to be implausible.

The decision struck down a ruling by the state Court of Appeals, which concluded that Judge Monica Garfinkel of Maricopa County Superior Court needed to provide explicit findings to justify the striking of two black jurors in a criminal case in which the defendant was Black.

Keyaira Porter, a Maricopa County woman charged with aggravated assault of a police officer and resisting arrest, alleged that the jurors were removed peremptorily (without explanation) on the basis of race.

“We disagree,” Justice John Lopez wrote on behalf of the Supreme Court. “We also express our confidence that trial judges – who are in a better position to discern the intent and demeanor of prosecutors and jurors – are uniquely situated to determine whether peremptory challenges are being used to discriminate against minority jurors.”

Under a 1986 U.S. Supreme Court ruling that governs peremptory challenges, Batson v. Kentucky, the defendant must first issue the challenge, which requires a pattern of strikes against minority jurors. Secondly, the prosecutor must give their reasoning for striking the jurors in question. After the prosecutor gives their reasoning, the judge must make a determination on whether the reasons given were discriminatory or not.

The Court of Appeals, which ruled in favor of Porter and called for further proceedings regarding her challenge, relied on a 2008 U.S. Supreme Court ruling in Snyder v. Louisiana, a capital case in which a black defendant was tried by an all-white jury. The state Supreme Court rejected this argument, stating that Snyder did not apply to situations in which the prosecutor provided two race-neutral reasons for striking a minority juror.

“Here, the court of appeals interpreted Snyder to hold that when a trial court is presented with two explanations for a strike, and one is based on a prospective juror’s demeanor, an appellate court may not presume that the trial court credited the demeanor-based explanation simply because it denied the Batson challenge,” Lopez wrote. “The court of appeals extended Snyder beyond its jurisprudential reach.”

Lopez further explained that in Arizona, trial courts’ rulings on Batson challenges are not reversed unless the judgement is “clearly erroneous.” The Supreme Court agreed with the trial court’s assessment that the prosecutor had sound, non-discriminatory reasons for striking both jurors, thus rendering the Batson challenge invalid. One juror was stricken because one of their family members had been convicted on a charge similar to the one Porter was facing, while the second juror was dismissed due to having “a stronger personality or be[ing] more willing to acquit a defendant.”

While the Supreme Court found that trial judges were not required to provide explicit findings for juror dismissals, it recommended that they do so anyway.

“Although express findings are not required, we encourage trial courts to make them as they will bolster their rulings and facilitate review on appeal,” Lopez wrote.

Howard Fischer of Capitol Media Services contributed to this article.

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