October 2012

C.J. William Rehnquist carved into a pumpkin

Yes, that is C.J. William Rehnquist carved into a pumpkin. Be very afraid.

There is certainly no better day of the year than this one to connect the dots between lawyers and the underworld. And no, I don’t mean the Mafioso.

Happy Halloween. Perhaps I should have waited until today to share the story about an ASU Law School professor who chose to examine the relation between zombies and the tax code. But that tale already walks the earth, and I won’t dig it up again. (But if you missed it, here it is. Click at your own peril.)

If you read that haunting tale and still have a wooden stake you’re aching to use, then turn to this fascinating tale about a law professor (what’s up with the law professors?) named Victoria Sutton and her new book, titled Halloween Law: A Spirited Look at the Law School Curriculum.

zombie apocalypse death and taxesIn it, Sutton “examines the scarier side of first year law school subjects like torts, property and criminal law.”

You can read all about her attempt to terrorize the already terrified in this great blog post by John G. Browning.

As the ghoulish professor notes:

“I thought I might do something on vampires and the law,” says Sutton, “[b]ut there wasn’t enough variety.  But in my research I noticed a great number of cases revolving around Halloween, and it occurred to me the subject areas fell into the same categories we teach in the first year of law school.”

Halloween Law by Victoria Sutton

Many of us need only read “first year of law school” to begin uttering, “The horror, the horror.” But for those hearty souls who want to enter the dark cavern, push aside the cobwebs, and perhaps find a treasure (or at least a Halloween Snickers), here is where you may find Sutton’s volume of unspoken woe.

Be strong, and here’s hoping all your candy bars are full-sized.

Ipso Facto Beer Halloween

Speaking of strong: Yes, that is Ipso Facto Halloween-ish brew. Don’t judge.

April 2009 Arizona Attorney coverTime flies while little happens.

That’s what occurred to me the other day, when I came across the April 2009 issue of Arizona Attorney Magazine. In that issue, I wrote an article exploring the implications of a hot-off-the-presses report from the National Academy of Sciences. The NAS report was titled Strengthening the Forensic Science System in the United States: A Path Forward,” and it described in sometimes stark detail many of the problems with the current forensic science system.

And it’s worth recalling that forensic science is the stuff used in court, marshaled in an effort to convict people and send them to prison—or worse.

That 2009 spring was a whirlwind of activity, as the report’s launch was announced, delayed, and announced again. Until the week we went to press, we weren’t sure we could manage to have a timely story.

But what I never really doubted was that the report would have a significant effect on courts and policy. I’m not typically a sunny-side up guy, but the scholarly report was the work of a blue-ribbon panel to end all blue-ribbon panels. It was headed up by a respected jurist. And the writers included a wide variety of people (translated, not just scientists or law professors).

But more than three years later, the report has made few ripples. And this week, a blog post describes the reasoning behind at least some courts’ rejection. In the story, the D.C. Court of Appeals is the focus (note: That court is the District’s highest court; it is not the D.C. Circuit Court of Appeals).

April 2009 forensic science openerIn the case discussed, a lawyer sought to use sections of the NAS report that questioned the reliability of fingerprint analysis. The trial court denied this, and the court of appeals affirmed. The appellate court found:

“that the sections of the report at issue weren’t a ‘learned treatise,’ a term referring to a text that is considered authoritative and can be used to question experts. The appeals court found that [the] lawyer failed to present any evidence that the section on fingerprint analysis was a ‘reliable authority’ and accepted by the scientific community.”

True; that is the standard. But how long do courts wait until the scientific community accepts a report that eviscerates that very same community in significant ways. I’m not sure what the Latin is for “don’t hold your breath,” but I may look it up.

Yesterday, though, I saw this story out of Miami, in which a trial court judge ruled that fingerprint evidence should be restricted.

Note that he did not rule that such evidence should be excluded. He merely read the NAS report and decided that language like “a match” in direct testimony would be overreaching by a forensic expert.

Time will tell whether other courts begin to make granular changes such as this—and whether they will be upheld by appellate courts. But it grows more likely that change stemming from the NAS report will be more grassroots and less global; more lawyer-driven than chief justice- or legislature-driven.

debate microphoneEvent images have been added to the bottom of this post.

At 11:15 this morning, the one and only forum of candidates for Maricopa County Attorney will occur. I encourage you to attend.

First of all, I have to divulge: I will be moderating the forum. But as we know, the moderator’s main job is to speak little and to let the candidates do most all the talking. Though that may not always work well (yo, Jim Lehrer), that is my plan and I’m stickin’ to it.

The more important reason to attend is that this is an incredibly important elected office. Even if there is little doubt about the race’s outcome between Libertarian Michael Kielsky and Republican Bill Montgomery (no Democratic candidate was fielded), I still think that hearing what people stand for counts for a lot.

The topics themselves are some of the most noteworthy in our communities: charging, sentencing, immigration, drug use, medical marijuana, campaign finance, prison alternatives, capital punishment, identity theft. And those are just a few of the things we may cover.

Phoenix School of Law logoYou and others may participate in a few ways. First, of course, you can come to the forum. It’s from 11:15 a.m. until 12:15 p.m., at the Phoenix School of Law, One N. Central Ave., Room 1715. Your questions will be welcomed at the end of the hour.

The other way to be a part of the process: Send me a suggested question. You can post it below, or email it to me at arizona.attorney@azbar.org. I will check my email right up until we begin at 11:15, so fire away.

I hope to see you there.

Here are some images from the debate panel:

L to R: Candidate Bill Montgomery, Phoenix School of Law Professor Keith Swisher, candidate Michael Kielsky

L to R: Candidate Bill Montgomery, Phoenix School of Law Professor Keith Swisher, candidate Michael Kielsky

L to R: Candidate Bill Montgomery, Phoenix School of Law Professor Keith Swisher, candidate Michael Kielsky

L to R: Candidate Bill Montgomery, Phoenix School of Law Professor Keith Swisher, candidate Michael Kielsky

The play of the Life of Raul Castro by James Garcia

James Garcia, left, as Gov. Raul Castro

On this beautiful Change of Venue Friday, I urge on you what looks to be a terrific play about an Arizona lawyer legend.

American Dreamer: The Life and Times of Raúl H. Castro is not likely to feature singing and dancing. But you will enjoy a play about an Arizona pioneer—in every sense of the word.

We’ve been pleased to cover the life and career of former Governor Castro here in Arizona Attorney. And if you ever get the opportunity to hear the Governor speak, you should not pass it up.

The play is presented by the inestimable New Carpa Theatre (full disclosure: My daughter Willa has acted in some of the group’s phenomenal shows.). And the lead role is played by actor James Garcia—who also is the playwright.

As the theatre describes the play:

“American Dreamer is the true story of a living legend, Raul H. Castro, who came to the U.S. during the Mexican Revolution. Now 96, he’s been a farm worker, boxer, teacher, lawyer, judge, U.S. ambassador to three nations, and in the 1970s he served as Arizona’s only ever Hispanic governor.”

The Phoenix performance will occur October 26 through 28 at Playhouse on the Park, 1850 North Central Ave. Friday and Saturday night shows start at 7:30 p.m. Sunday matinee is at 2 p.m. The show runs approximately two hours.

Tickets are available on sale here, or at the New Carpa website. Tickets may also be purchased at the door.

Have a wonderful weekend.

AZ Supreme Court logoI began an earlier draft of this blog post with the encouraging message: We all should go to judicial investitures. That followed on the heels of two great judge swearings-in—for Court of Appeals Judges Randall Howe and Sam Thumma. For my time and money, there may be no events that provide more insight into what makes judges tick than those events. And I believe that is true for all attendees, whether they are a lawyer or not.

But then I read a news story this week that reminded me it will take more than a heartfelt gathering to remind Arizonans that we have a terrific judiciary (perhaps the finest in the country). Being cynical and all, I’m not convinced we voters are up to the task of understanding and preserving what we’ve got. But I’m hoping I can be proven wrong.

The news story was penned by longtime reporter Howard Fischer, of Capitol Media Services, and it’s titled “Groups Campaign To Oust Supreme Court Judge.”

Right off the bat, let me assure you I’m not urging a vote one way or another on the Justice’s retention. That is between you and whatever data you have available. This post is about the data.

Anyway, as Howie describes it:

“A loosely organized effort to oust a state Supreme Court justice is forcing him to consider an unprecedented campaign to keep his post. … The anger is focused on [Justice John] Pelander because the Supreme Court earlier this year ruled that Proposition 121 can be on the ballot. That measure, if approved, would amend the state Constitution to create an open primary system where all candidates run against each other regardless of party affiliation, with the top two advancing to the general election.”

Hon. John Pelander

Hon. John Pelander

Again, you should vote in the retention election however you’d like. But this whole dustup is about … Prop 121?

Really? REALLY?

For a treatment of the subject that is far more compelling and eloquent than my two-word screed, you should read Chief Justice Rebecca White Berch’s commentary in the Arizona Republic from this past Monday. She also is careful not to urge any particular vote, but she does point us all to some sources of actual data that might inform our ballot choice: The Arizona Commission on Judicial Performance Review, and the Arizona General Election Guide, which is mailed to each registered voter.

As always, the Chief is judicious (part of the job title, I think). But the op-ed does reveal some raised hackles:

“[U]nfortunately, in this age of social media, blogs and e-mail, anyone can post anything concerning a judge without regard to accuracy. Judges may be unfairly portrayed or information about rulings may be misrepresented by people who have an agenda or have simply misunderstood an opinion.”

That takes us back to Howie’s article, which you can read here.

So let’s examine that “Top 2” primary issue, which is ostensibly the sole source of upset against a Supreme Court Justice. You may recall that it was just back on September 6 that the Court ruled that the item could be on the ballot.

Chief Justice Rebecca White Berch

Chief Justice Rebecca White Berch

I would urge the following for anyone “on the fence” due to this ruling: As the Chief says, review the data at the website of the Arizona Commission on Judicial Performance Review, and read your own voter pamphlet.

And then, go the extra step: Read the ruling itself.

I’m confident that my lawyer–readers will not moan about having to read a 6-page ruling. But if you have non-lawyer colleagues who ask about this issue, urge them to read it, too.

I can suggest that for one big reason: It’s well written (by Justice Bales, the order’s author), which means it is accessible to many, not merely to lawyers.

I also can suggest it because reading the actual ruling will remind us all that the Court (and Justice Pelander) did not affirm or deny the merit of Prop 121; it handled the election question—judiciously—as it does with countless other ballot-measure cases, year after year.

As a voter service, I’ve posted the ruling here. But because I have no interest in creating a firestorm of partisan claims, I’ve also posted the appellant and appellee briefs. I suppose if you want the full picture, you may want to read those too. But do start with that ruling.

That’s in the short term. But in the long term, one wonders what kind of Pandora’s box has been opened. We need only look to Texas, or Iowa, or numerous other states to see the insertion of political pressure into judicial retention elections. In those places, justices may sit stonily and ethically silent amid an onslaught of public critique. But the result may be the ouster of good people, along with a further coarsening of the discourse.

Many, many people in Arizona (including a majority of the voting public) support Arizona’s current system of merit selection for certain judges and justices. But even if that system is retained going forward, how will it be altered if groups—“loosely organized” or not—mobilize to transform retention elections into a shouting match? How many people will be interested in the job of judge when the quality of their work is assessed not on the swath of legal output that fills volumes like sea foam covers a beach? Instead, it could be upended by a single, particular ruling in which you’ve joined, a ruling that grabs the popular imagination for misunderstood reasons—a single seashell on a vast coral reef.

Arizona, at a turning point.

Posted as reference to my 10/25/12 blog post here.


SAVE OUR VOTE, OPPOSING C-03-2012, an unincorporated Arizona political committee, SAFEGUARD ARIZONA’S FUTURE, an unincorporated Arizona political committee, and LISA GRAY, a qualified elector and taxpayer of the State of Arizona, Plaintiffs/Appellants,


KEN BENNETT, in his official capacity as Secretary of State of the State of Arizona, Defendant, and OPEN GOVERNMENT COMMITTEE SUPPORTING C-03-2012, an unincorporated Arizona political committee, Real Party in Interest.

Arizona Supreme Court

No. CV-12-0301-AP/EL

Maricopa County Superior Court

No. CV2012-013094


FILED 09/06/2012

¶1 The Court, by a panel consisting of Chief Justice Berch, Vice Chief Justice Bales, and Justice Pelander, has considered the briefs of the parties and the record in this accelerated election appeal. After consideration, the Court rules as follows:

¶2 This appeal arises from a challenge by Plaintiffs/Appellants “Save Our Vote, Opposing C-03-2012,” “Safeguard Arizona’s Future,” and Lisa Gray (collectively “SOV”) to petition circulator affidavits on certain initiative petition sheets circulated by Real Party in Interest “Open Government Committee Supporting C-03-2012” (the “Committee”). The initiative proposes to amend Article 7 of Arizona’s Constitution to create a single open “top two” primary election followed by a general election between the two candidates who receive the highest vote totals for each office; if adopted by the electors, that system would replace Arizona’s current partisan primary and general elections in January 2014.

¶3 Following the Secretary of State’s initial culling of initiative petition sheets pursuant to A.R.S. § 19-121.01, SOV discovered possible defects in some circulator affidavits. It filed this action on August 24, 2012, and requested an expedited hearing pursuant to A.R.S. § 19-122(C), which provides that such actions be “heard and decided by the court as soon as possible.” The matter was set for a four-hour hearing on August 30 before Judge John Rea in Maricopa County Superior Court. The printing deadline to place initiative measures on the general election ballot was August 31, 2012; the deadline for removing items from the ballot is September 7, 2012.

¶4 At the hearing, without objection, the trial court allocated two hours to SOV and two hours to the Committee. After calling three witnesses and introducing some of the petitions it had hoped to have admitted into evidence, SOV rested ten minutes short of its two hours, without then proffering additional exhibits for admission. The Committee rested well short of its two hours. When SOV asked if it could “admit some more exhibits” at that point, the trial court responded that “exhibits which are rebuttal to the defense case” would be permissible, but “something new” that is “beyond the scope of rebuttal” would not. SOV neither identified what additional exhibits it might seek to introduce nor made an offer or proof. SOV then stated there was no need for rebuttal and the parties made closing arguments.

¶5 The next day, August 31, the trial court ruled that although SOV had proved 2,056 signatures should be removed for fatally flawed affidavits, that number was insufficient to disqualify the measure in light of the court’s ruling in the companion case, Open Government Committee v. Purcell, CV 2012-013089. In that matter, the Committee had successfully rehabilitated 577 signatures the Maricopa County Recorder had struck as invalid in its certification of the random sample pursuant to A.R.S. § 19-121.02. When the total number of valid signatures was recalculated, the ruling in Purcell resulted in the Committee having 6,372 more valid signatures than required; and even after deducting the 2,056 signatures invalidated in this case, the Committee had 4,316 more valid signatures than required. The trial court therefore dismissed SOV’s complaint with prejudice in a signed minute entry.

¶6 On appeal, SOV argues the trial court abused its discretion by “requiring [it] to introduce signature sheets individually by circulator,” rather than admitting, en masse, four boxes containing some 6,000 signature sheets and by allowing SOV only two hours in which to present its evidence “and not granting [its] request for additional time.” SOV also argues that the trial court erred by dismissing the complaint while the companion case was subject to appeal.

¶7 We affirm the trial court’s rulings. The court did not require SOV to introduce signature sheets individually by circulator. When the Committee declined to stipulate that the contents of the four boxes were true and correct copies of the actual petitions, and SOV’s witness testified that the documents were “not necessarily in the same form as how [the Secretary of State’s office] provided them,” the trial court indicated that SOV could lay further foundation, at which point a determination on admissibility could be made. The trial court did not abuse its discretion in refusing to admit the boxes when first offered. Although SOV laid additional foundation through its next witness, and successfully moved to admit certain signature sheets, it did not again move to admit the four boxes. When SOV asked during its case-in-chief if there was a simpler or faster way to proceed, the trial court appropriately responded that each party should determine how to prove its case. The trial court did not unduly limit the manner in which evidence was presented.

¶8 Nor did the trial court abuse its discretion in limiting the time for presenting evidence. SOV did not object to the court’s allocating four hours for the hearing or dividing the time equally, perhaps because experienced election counsel on each side understood that the printing schedule required the court to issue a ruling the next day. During the hearing itself, when SOV requested additional time to present more evidence, it neither made an offer of proof regarding the proposed evidence nor argued that adhering to the previously established schedule would be unfairly prejudicial. The trial court did not deny SOV due process under the circumstances of this expedited election litigation.

¶9 Finally, the trial court did not err in dismissing SOV’s complaint while the companion case was subject to appeal. This issue is moot because the defendants in that case chose not to appeal and, in any event, SOV did not ask the trial court to defer entering judgment pending any appeal of the companion case.


¶10 SOV has not shown that the trial court abused its discretion with respect to any evidentiary rulings or in adhering to the previously established hearing schedule; nor did the trial court err in dismissing SOV’s complaint. Because the issues raised by the Committee on cross-appeal will not affect our disposition of this case, we do not address them. We affirm the decision of the trial court denying the injunctive relief requested by SOV and dismissing its amended complaint with prejudice.

DATED this ____________ day of September, 2012.

Scott Bales

Vice Chief Justice


Michael T. Liburdi

Joshua Alan Kredit

Michele L. Forney

Thomas M. Collins

Kimberly A. Demarchi

William G. Voit

Hon. John Christian Rea

Michael K. Jeanes


Related Documents:

Top 2 Primary CV120301 Decision Order (same as above, but in PDF)

Order filed in Trial Court Exhibit A

Appellants’ Opening Brief

Opening Brief of Real Party in Interest Open Government Committee

CV120301 Appellants’ Response Brief

CV120301 Response Brief Open Govt

Arizona Law logoA short note this morning to alert all you Tucson colleagues: I will be presenting at the University of Arizona Law School at 12:15 today. And there’s food.

My topic is how Arizona Attorney Magazine covers criminal law and policy. The invite came from a student group that focuses on such topics.

You can read more about the presentation here.

When I first was invited, I hesitated. But once I plunged in and gathered information, I was heartened to see how much criminal law coverage we’ve published over the years. Yes yes, we can always do more. But I was pleased in looking back that on some of the most challenging policy issues of the day, we have been in the fray.

One of my day’s goals will be to persuade at least a few of the students to consider writing on crim law and policy for Arizona Attorney. I may even chat about the notion of a magazine “Law School Bureau.”

I’m told pizza will be served during my talk (but let the hard-working students eat first, OK?). And, surprise of surprises, CLE credit may be available (I’ll strive to be educational).

I hope to see you there.

ASU Sports and Entertainment Law logoWay back in junior high school, I read an autobiography that had quite an effect, at least on my newspaper reading habit.

The writer was George Washington Carver, and he was the first to suggest to me (and his many other readers) that I should read every single portion of a newspaper. Front page, business stories, features, sports—all of it. For the person who is cognizant of all those topics, plus more, is the one who is truly conversant in his world. Mind you, one need not be entranced by all things equally; but a working knowledge of all topics can help one on the path to a true education.

I invite you into my way-back machine opening because some of an upcoming conference that some of you may skip over. This Friday and Saturday, October 26 and 27, the third annual conference on sports and entertainment law will be held at ASU’s Sandra Day O’Connor College of Law. And in case I and Mr. Carver were not clear enough: The conference is not just for sports lovers.

ASU Sports Law conference flier 1

I’ve written before about this great conference, sponsored by the Sports and Entertainment Law Journal. And if you look at the topics and panelists on deck, you’ll see that the organizers plan to cover many significant aspects of our current world You can read the complete lineup here, but here is a list a of the topics:

  • Amateurism
  • Sports and entertainment business
  • Collective bargaining agreements
  • Concussions and sports litigation
  • Entertainment and the right of publicity
  • Gambling and gaming
  • Other current topics: Lance Armstrong (who was just stripped of his Tour de France titles), Penn State/Sandusky

And who knows: You may even convince the panelists to chat about replacement referees.

But wait; there’s more: Kicking off Saturday’s stellar event is another worthwhile speaker opportunity. On Wednesday, October 24, the Sports and Entertainment Law Students Association will host “A Conversation with Steve Patterson.” Patterson is the ASU Vice president for University Athletics and the Athletic Director. Also speaking will be Myles V. Lynk, professor of law and ASU’s former NCAA and Pac-12 Conference Faculty Athletics Representative. The two men will discuss various issues, including:

“changes in NCAA and Pac-12 governance; fallout from the events at Penn State; the evolution of the BCS and college football national championships; and the challenges and opportunities for ASU and its student-athletes who compete in over twenty NCAA Division I sports programs.”

The Wednesday event will be Room 105 at the Law School, from 5:00 to 6:30 p.m.

Here’s wishing the law students another successful conference.

ASU Sports Law conference flier 2

National Pro Bono Celebration logo 2012It’s an annual pleasure to share the news about national Pro Bono Week. It is celebrated this year from October 21 to October 27.

In recent years, I’ve written about local pro bono events (for examples, see here, here and here). To get an idea of what’s going on this week, click here.

(Do you want to pass on some pro bono good news from you or your law office? Contact me at arizona.attorney@azbar.org and I may get it posted this week.)

When you click the link to the National Pro Bono Celebration, you’ll see that a few of those events are hosted by Community Legal Services. Among other good news, they happen to be celebrating an anniversary this year. We were pleased to share in that celebration by publishing an article on the topic in Arizona Attorney Magazine. You can read it here.

To add to the festivities, this week there will be an event honoring CLS and its six decades of accomplishment. I hope to see you there.

Community Legal Services 60-year anniversary article in Arizona Attorney Magazine

Museum of Contemporary Art, Denver

Museum of Contemporary Art, Denver

Earlier this week, I shared the magazine’s good news about our national award (press release here). But today is Change of Venue Friday, so we’re on a related but lighter topic: Here are some photos from my trip to Denver (nothing says Change of Venue better than few words, more pics).

I’ve placed a few photos in this blog post; the rest are here, on the Arizona Attorney Facebook page.

But before you head over yonder, you really have to watch a brief video. No, not by me, but by a friend and talented communicator named Patrick Tandy. He’s the Communications Director at the Maryland State Bar Association. Besides all the work that goes into attending a conference (it’s true), Patrick also lugged his iPad around, snapping pictures and capturing the flavor of Denver (and the funky Curtis Hotel).

Patrick teamed up with everyone’s favorite songwriting buddy, Warren Zevon, who provided the appropriate track: “Things To Do in Denver When You’re Dead” (communicators – so so dark).

Enjoy his video, and then go look at my non-videofied photos. Have a great weekend.

By the way, have you Liked the Maryland State Bar on Facebook yet? Whatcha waiting for?

Larimer Street, Denver

Larimer Street, Denver

Next Page »