AZAPP Blog

Article in Arizona Republic Oct 26, 2005: "Pullen Declines Gubernatorial Run
2 More GOP players Expected To Announce Plans Soon."

Four candidates would be former Senate President John Greene and former state worker Don Goldwater, who have already announced, former Transportation Department head Mary Peters and former Arizona Court of Appeals Judge Jan Florez.

Posted by azapp @ Fri, Oct 28, 2005

Article in Arizona Republic October 25, 2005: "Candidate Says Rival In Governor's Race Is Ineligible, Greene Cites Her Va. Address."

Republican candidate John Greene said Mary Peters is not eligible because she lived, voted and owned a home in Virginia during a four-year stint working for President Bush. Former Arizona Court of Appeals Judge Jan Florez and Republican activist Randy Pullen are also considering the race.

Posted by azapp @ Fri, Oct 28, 2005

Arizona Republic Article: Court Upholds Congressional Map, Legislative Districts To Get New Look

A state appellate court on Tuesday upheld Arizona's congressional district map but ordered a trial judge to reconsider whether the legislative district map is constitutional.

The maps presented were originally adopted as final district maps by the Arizona Independent Redistricting Commission.

Posted by azapp @ Wed, Oct 19, 2005

Arizona Republic Article: Court Axes Democrats' Dreams Of Redistricting
October 19, 2005

A Tuesday court ruling by the Arizona Court of Appeals, scrapped a redistricting plan that would have given the Democrats' new legislative boundaries and a stronger foothold in the Legislature. See Decision outlined below.

Posted by azapp @ Wed, Oct 19, 2005

Ariz. Minority Coalition for Fair Redistricting v. Ariz. Independent Redistricting Comm'n:
Per Curiam Division One Panel Reinstates 2002 Legislative Districts, Affirms 2002 Congressional Districts

After the Arizona Independent Redistricting Commission, acting under Ariz. Const. art. 4, pt. 2, sec. 1, created new legislative and congressional districts for use in elections held between 2004 and 2010, the Arizona Minority Coalition for Fair Redistricting, several state legislators, and others filed suit against the Commission challenging the legislative plan. Shortly thereafter, a separate action was filed challenging the constitutional plan. The Arizonans for Fair and Legal Redistricting, the Navajo Nation, the Hopi Tribe and certain affected localities intervened. The cases were consolidated.

The Commission is charged with overseeing the redistricting process, laid out in Ariz. Const. art. 4, pt. 2 sec. 1. During the first phase of redistricting, grid-like districts of equal population are created across the state. Adjustments may then be made to the grid as necessary to accommodate the constitutionally-outlined goals, and the map is available for public comment and legislative recommendations. The Commission's proposed map was certified to the Arizona secretary of state in November 2001, and submitted to the Department of Justice for that agency's consideration of the map's compliance with the Voting Rights Act. The suits which led to this appeal were filed in March 2002. The complaint challenging the legislative plan alleged that the Commission's proposed map would violate Art. 4, pt. 2 sec. 1(14)(F) because it would result in fewer competitive legislative districts. The congressional plan complaint alleged that the Commission unconstitionally adopted a plan that discriminated on the basis of race.

During the litigation, the Navajo Nation and the Commission filed cross motions for summary judgment concerning the Navajo Nation's challenge to the congressional districting plan that removed the Hopi Tribe from district 1 and placed the Tribe district 2, using a narrow corridor through the Grand Canyon to connect portions of district 2. The trial court granted the Commission's motion, ruling that the constitution permitted the Commission flexibility in addressing the enumerated goals of redistricting. A trial took place on the remaining issues, after which the trial court enjoined the use of the Commission's plans and directed the Commission to formulate standards and definitions for several of the constitutional provisions. Although the Commission and other parties appealed this ruling, the Commission also submitted a new legislative plan on April 12, 2004, which was approved by the court four days later. The Commission amended its notice of appeal to include an appeal from the court order approving the new plan.

The Court of Appeals first considered the rulings in the legislative redistricting case, observing that courts should, where possible, limit their involvement in redistricting cases. Against this backdrop, the Court concluded that the trial court had gone too far in applying strict scrutiny to the plaintiffs' equal protection challenge. Although the Commission's redistricting plan arguably implicated the fundamental right to vote, and was drafted without first defining the constitutional terms outlining the process, the Court concluded that the right to vote was not so severely burdened as to subject the plan to strict scrutiny. The Court distinguished Mayor of Tucson v. Royal, 20 Ariz. App. 83, 510 P.2d 394 (1973), by concluding that the strict scrutiny test utilized in Royal applies only where the right to vote is denied under a redistricting plan. The Court held that Bush v. Gore, 531 U.S. 98 (2000) did not condemn the Commission's failure to define terms found in Ariz. Const. art. 4, pt. 2, sec. 1(14) because Gore applies only where individual votes are treated unequally. Because arguably subjective and mandatory constitutional standards in in Ariz. Const. art. 4, pt. 2 sec. 1(14) affect only where the district lines were drawn, not qualifications to vote or qualifications of a vote, the plan passed muster under Gore. Nor were the Plaintiffs entitled to strict scrutiny under their argument that the Commission was predominantly motivated by race, particularly because the plan was "not so extremely irregular" on its face that segregation was the only reasonable explanation.

After concluding that strict scrutiny should not have applied to invalidate the Commission's plan, the Court offered a substantial amount of "guidance" to the trial court on remand. The Court first questioned the viability of any equal protection challenge to a redistricting plan. Even where certain constitutional terms remain undefined, any subjective ad hoc decision that results would not rise to an equal protection violation absent evidence of racial discrimination or impairment of the right to vote. The Court pointed out that not only do districting decisions generally require an exercise of judgment, the particular provisions of the Arizona constitution explicitly permit the exercise of such discretion. The Court next disagreed with the trial court's conclusion that creating competitive districts was a goal equal to other goals included in art. Section 1(14), finding that the language in Section 1(14)(F) "plainly subordinates the competiveness goal" to other listed goals. The Court briefly discussed other issues likely to arise on remand, including issues of legislative privilege and the Commission's use of personal knowledge and insight in formulating the new districts. The Court also offered insight on how it would interpret the constitutional provision prohibiting the use of "[p]arty registration and voting history data" or the identification or consideration of "the places of residence of incumbents or candidates" in drawing new districts, stating that practical concerns counsel against strict construction of the provision.

Finally, the Court affirmed the trial court's grant of summary judgment to the Commission on the Navajo Nation's complaint that the Commission impermissibly elevated the Hopi Tribe's request to be in different district than the majority of Nation residents. The Court held that the Commission validly compromised some constitutional goals in order to respect the communities of interest by placing the Hopi Tribe in district 2.

Presiding Judge Timmer, Chief Judge Weisberg and Judge Winthrop participated in the opinion.

Posted by azapp @ Wed, Oct 19, 2005

Acuna v. Kroack and Hampton: Division Two Reverses Part of Verdict in Negligent Entrustment Case

A married couple was involved in a car accident when they pulled a sudden U-turn in front of an oncoming car, while Husband was driving. Just after the accident, Husband was observed to be slurring his speech, with his face flushed, and walking unsteadily. He left the scene of the accident and did not return until much later. Beer cans were found in the back seat of the car. The driver of the other car sued the couple, alleging negligence against both, and negligent entrustment against Wife. The trial court denied Wife’s motion for summary judgment on the negligent entrustment claim and the couple’s in limine motions on the admissibility of their post-collision conduct. At trial, the jury returned a verdict in favor of the plaintiff and apportioned fault 70-30 between Husband and Wife. On appeal, the couple first argued that the court erred in admitting evidence of their post-collision conduct. The Court of Appeals disagreed, holding that the evidence regarding Husband’s flight from the scene, as well as his balance, gait, and speech, were relevant to the negligent entrustment claim, because they tended to show that Husband’s incompetence to drive must have been clear to Wife. The couple next argued that the evidence was insufficient to support the verdict on negligent entrustment. With respect to the first two elements of the claim, the Court held that the couple had waived its challenge by failing to challenge these elements in the trial court. The Court did find merit, however, in the couple’s assertion that there was insufficient evidence to support the jury’s finding that Wife was aware of Husband’s incompetence when she let him drive the car. The Court observed that Husband’s post-accident conduct did not prove, “even circumstantially,” that Wife knew or should have known of Husband’s incompetence to drive prior to the accident. The Court accordingly vacated the portion of the verdict imposing liability against Wife. Finally, the Court rejected the couple’s challenge to the jury’s $200,000 damage award, holding that the award did not “shock the conscience” in light of the evidence of the plaintiff’s shoulder injury.

The decision was authored by Judge Pelander and joined by Judges Flórez and Espinosa.

Posted by azapp @ Tue, Oct 11, 2005

Arizona Supreme Court Issues Minutes

The Arizona Supreme Court issued its Minutes in two parts, Part A and Part B. The Court ruled on petitions for review in 106 cases, denying the petitions in 76. In 26 criminal cases, the Court granted the State’s petitions for review and remanded for reconsideration in light of State v. Martinez, 210 Ariz. 578 (2005), and State v. Henderson, 210 Ariz. 561 (2005), cases dealing with the permissible allocations of factfinding functions between judge and jury. The Court granted review in Powell v. Washburn and State v. Wall. In Maricopa County Sheriff’s Office v. Chagolla, the Court granted the petition and remanded for reconsideration in light of its own recent decision in Maricopa County Sheriff’s Office v. Maricopa County Employee Merit System Commission. In Pacheco v. Pacheco, the Court granted the petition and vacated the Court of Appeals’ decision in light of its own recent decision in State v. Hayden.

Posted by azapp @ Mon, Oct 10, 2005

Scheehle v. Justices of the Supreme Court of the State of Arizona: Arizona Supreme Court Holds That It Has the Constitutional Authority to Require Active Members of the State Bar to Serve as Arbitrators Under Arizona Rule of Civil Procedure 73

Attorney Mark v. Scheehle filed an action in federal district court challenging the provision of Rule 73, Ariz. R. Civ. P., authorizing the Maricopa County Superior Court to include him on its list of eligible arbitrators without his consent. The district court granted summary judgment against Scheehle on his federal civil rights claims, and declined supplemental jurisdiction over various pendent state law claims. The Ninth Circuit initially affirmed, but then withdrew the opinion. At the same time it asked the Arizona Supreme Court to address the certified question whether A.R.S. § 12-133 required compulsory participation of attorneys as arbitrators. After the Arizona Supreme Court held that the statute did not require that lawyers serve as arbitrators, the Ninth Circuit remanded to the district court for further proceedings. The district court then asked the Arizona Supreme Court to answer the following certified question: Whether the Arizona Supreme Court under its exclusive constitutional authority to regulate the practice of law can promulgate court rules mandating experienced attorneys to serve as arbitrators in light of the statutory language of A.R.S. § 12-133 authorizing only voluntary service. Rejecting various arguments set forth by Scheehle, the Court answered the question in the affirmative.

In a separate order, the Court addressed whether the current members of the Arizona Supreme Court needed to recuse themselves from the case because various justices were named as parties in their official capacities. The Court held that current members of the Court, many of whom were different from the individuals initially named in the suit, need not recuse themselves for a variety of reasons. Under the rule of necessity, for example, a body of judges need not disqualify themselves when it is not possible to convene a body of judges not subject to the same disqualification issue. In this case, any judge who replaced a sitting justice would automatically then become a justice being sued in his or her official capacity due to the automatic substitution rules governing official capacity suits. Thus any judge who replaced a current justice would temporarily suffer from the same infirmity as the current justices. The Court further cautioned against allowing litigants to disqualify bodies of judges merely by naming them in suits, particularly because it was not necessary to name them in this action.

Judge Snow, sitting by designation, authored the decision. Chief Justice McGregor and Justices Berch, Ryan, and Hurwitz concurred.

Posted by azapp @ Fri, Oct 7, 2005

ROMERO V. SOUTHWEST AMBULANCE & RURAL/METRO CORPORATION: Division Two Panel Reminds Practitioners to Comply with Procedural Requirements of Appeals and Finds A.R.S. 12-711 Constitutional

Alice Romero filed a wrongful death complaint, alleging that her son's death in the emergency room of Kino Community Hospital was caused by the negligent treatment of emergency personnel. At trial, she sought to exclude evidence of her son's character, including his substance abuse, criminal record, and incarcerations. She also sought to bifurcate the trial into liability and damage phases under Rule 42(b), Ariz. R. Civ. P. Both motions were largely denied by the trial court. After a twelve-day trial, a jury found the defendants not liable for the son's death.

Romero appealed, but failed to provide transcripts of the trial as required by Rule 11(b) and failed to adequately cite the trial record. A unanimous panel of the Court of Appeals affirmed the jury verdict. Though the opinion largely addressed the procedural reasons for affirming the trial court, the panel also reached one constitutional argument raised by Romero.

First, the panel agreed with the defendants that without the trial transcripts, it could not determine what evidence was presented at trial, whether Romero objected to the evidence at trial, how it was used and how it might have prejudiced her. Thus, Romero could not overcome the presumption that the trial court's evidentiary rulings are supported by the record, and those rulings were affirmed.

Romero also argued that the trial court erred in instructing the jury, pursuant to A.R.S. 12-711, that a defendant may be found not liable if the defendant proves that the claimant was under the influence of drugs or alcohol and, as a result, the claimant was at least fifty per cent responsible for the accident or event that caused the claimant's harm. Romero argued that 12-711 is unconstitutional for at least five reasons. Though the panel found that she had waived at least four of them by failing to object at trial, it considered, before ultimately rejecting, Romero's contention that 12-711 abrogated her right of action in violation of article XVIII, section 6 of the Arizona Constitution. The Court held that the Arizona Legislature had, in creating a comparative negligence regime, permissibly regulated a cause of action without completely abrogating the cause of action. Because 12-711 does not remove the question of liability from the jury, but permits it, after making certain findings, to find a claimant solely responsible for his or her injury, 12-711 did not abrogate Romero's cause of action.

Judge Espinosa authored the opinion with Chief Judge Pelander and Presiding Judge Florez concurring.

Posted by azapp @ Thu, Oct 6, 2005