Syllabus

Administrative Law Judge Finds TUSD’s Mexican American Studies Program Illegal Under Arizona’s Ethnic Studies Law, Questions Remain About How Broadly the Law Should Be Interpreted

Sat, 03 Mar 2012 00:26:00 -0700

In the Fall 2011 Issue of the Arizona Law Review, I wrote¹ that A.R.S. section 15-112, Arizona’s highly controversial “ethnic studies law,” would be unlikely to stop schools in the Tucson Unified School District (“TUSD”) from teaching Mexican American Studies courses. Since then, an administrative law judge has upheld the Arizona Superintendent of Public Instruction’s determination that these courses violate the law, and TUSD shuttered the Mexican American Studies program. The judge’s decision is the first to interpret the ethnic studies law, but it still leaves Arizona educators in the dark about what precisely the law prohibits.

The December 27, 2011 decision by Judge Lewis D. Kowal agreed with Superintendent John Huppenthal’s conclusion that Tucson’s Mexican American Studies courses advocate ethnic solidarity, promote resentment toward a race or class of people, and were designed primarily for pupils of a particular ethnic group. The administrative law judge based his determination on testimony from several teachers, parents, administrators, and professors of education.

Despite the Department of Education’s failure to actually observe any Mexican American Studies courses, the administrative law judge determined that a true picture of the courses’ teachings could be pieced together from written course curricula, teachers’ lesson plans, and students’ work product. He agreed with the Superintendent that the $100,000 study commissioned by the Department of Education, which failed to find any violation of A.R.S. section 15-112, was unreliable because the auditors observed too few classes and teachers may have had advance warning of the in-class visits. Thus, the decision affirms the Superintendent’s ability to find courses in violation of the law without ever observing how teachers actually present material to students in the classroom.

This conclusion is troubling because it blurs the line between the assertions of teachers and the assertions of authors. Teachers who themselves do not promote ethnic solidarity or resentment based on race must now think twice before they introduce assertions by political figures or influential authors who make controversial statements about race and ethnicity. A teacher may, for example, introduce a speech by influential labor activist José Angel Gutiérrez, where he exclaimed that Chicanos should “kill the gringo.”² Even if a teacher specifically disclaims this violent rhetoric as misguided, the Superintendent may apparently see the speech on the course syllabus and conclude that the entire course violates the ethnic studies ban.

Significantly, the judge offered the first interpretation of section 15-112(F), the exception to the ethnic studies law that clarifies that it should not be read to restrict or prohibit “the discussion of controversial aspects of history” or “the historical oppression of a particular group of people based on ethnicity, race, or class.” I have previously argued³ that this exception implicitly means students may learn about any and all past oppression of their ethnic group even if, as a result, those students feel ethnic solidarity or resentment towards a race or class of people. Under this interpretation of section 15-112(F), anecdotal evidence of students feeling ethnic solidarity after learning about historical events will not be enough to prove that any course violates the law.

TUSD presented this argument to the administrative law judge. The judge seemed to agree with this proposition, but applied the section 15-112(F) exception somewhat differently. The administrative law judge stated that the exception permits the historical (objective) instruction of oppression that may, as a natural but unintended consequence, result in racial resentment or ethnic solidarity … [but may not] actively present[] material in a biased, political, and emotionally charged manner, which is what occurred in Mexican American Studies classes.”⁴ Thus, according to the administrative law judge, promoting social or political activism based on race is prohibited.

This interpretation of section 15-112(F) is logical because promoting activism encourages future action, and section 15-112(F) only exempts teaching about historical events. But the judge’s application of this standard seems to ignore the fine distinctions the law actually requires.

As evidence that the courses promote resentment and ethnic solidarity, for example, the judge cites a lesson plan about the Treaty of Guadalupe Hidalgo. The lesson plan states: “Mexican treatment, particularly in relationship to land disputes, at the hands of whites has also historically been marked by the use of force, fraud and exploitation.” This passage, standing alone, is merely a recitation of historical events and should be exempt under section 15-112(F). The judge then found evidence that teachers instruct students that the Treaty should be used as a legal precedent to support some form of restitution for the descendants of Mexicans. This teaching is not exempt under section 15-112(F) because it suggests future political action. Finally, the judge determined that a student’s essay linking Arizona’s controversial immigration law, Senate Bill 1070, to the Treaty of Guadalupe was evidence that the course promoted resentment and ethnic solidarity. Yet this contravenes the express language of section 15-112(F), which allows for “discussion of controversial aspects of history.”

Such a determination is also at odds with the judge’s own interpretation of section 15-112(F), which permits instruction of oppression “that may, as a natural but unintended consequence, result in racial resentment or ethnic solidarity.” The judge explored none of these fine distinctions in his opinion; rather he invalidated the entire Mexican American Studies program based on the generalization that “there is no way to use the materials without being in violation of the law.”

Furthermore, the suggestion that all teaching must be “objective” or not “biased” presents an impossibly unworkable framework for educators. Every summary of historical events is written from the perspective of its author, thus every work has a “bias.” Maybe this means that every opinion presented in a textbook or a lecture must be counter-balanced by an opposing opinion. Consider a textbook that suggests the United States adopted the 19th Amendment because women are every bit as capable of making informed political decisions as men. Must an Arizona teacher present the corresponding opinion of the Saudi Arabian government explaining why women should not vote? Or maybe the “objective” standard means that teachers simply may not present any opinions about historical events, thus reducing the study of history to the rote memorization of dates, wars, and dead politicians. There is no guidance on what “objective” historical teaching means, except this judge’s view that TUSD’s Mexican American Studies courses were not objective.

Finally, the administrative law judge gave no explanation for why “emotionally charged” teaching should be prohibited when the statute expressly affirms Arizona teachers’ right to discuss “controversial” aspects of history.

While Arizona’s ethnic studies law shut down TUSD’s Mexican American Studies program, it is entirely unclear how far the legislature’s broad directives not to promote “resentment” or “ethnic solidarity” will reach. This ambiguity alone will chill teachers from presenting lawful material in a lawful way. For example, some sources incorrectly reported that TUSD removed Shakespeare’s “The Tempest” from classrooms. TUSD emphatically denies removing The Tempest from any classroom or lesson plan, saying in a press release that “[t]eachers may continue to use materials in their classrooms as appropriate for the course curriculum; ‘The Tempest’ and other books approved for curriculum are still viable options for instructors.” But TUSD apparently told a teacher who asked about the book that teaching The Tempest is inappropriate where “the likelihood of avoiding discussions of colonization, enslavement, and racism were remote.”[^9] It appears therefore that TUSD has already created a more stringent test for acceptable curriculum material, even if this test is not an expression of official policy. This chilling effect is perhaps the most pernicious aspect of the ethnic studies law, and absent further judicial construction the law will continue to limit teaching about history and culture.

Nicholas Lundholm, Note, Cutting Class: Why Arizona’s Ethnic Studies Ban Won’t Ban Ethnic Studies, 53 Ariz. L. Rev. 1041 (2011). ↩
Rodolfo Acuna, Occupied America: A History of Chicanos 262 (6th ed. 2007). ↩
Lundholm, supra note 1, at 1065. ↩
ALJ Decision, supra note 2, at 35. ↩

No Longer the Highest Degree of Confusion: Arizona Supreme Court Strikes Down the Common Carrier Doctrine

Sat, 03 Mar 2012 00:07:00 -0700

The Arizona Supreme Court’s most recent decision, Nunez v. Professional Transit Management, addressed a long-standing confusion over the common carrier doctrine in Arizona.¹ After decades of ambiguous case law, the court held that the general negligence standard—rather than a heightened standard—applies to common carriers in the state. Now, litigants must only argue the existence of “reasonable care under all the circumstances,”² as opposed to “the highest degree of care practicable under the circumstances.”³

In Nunez, Linda Brown, a wheelchair-bound passenger, boarded a SunTran city bus in Tucson. Grace Zoellner, the bus driver, secured Brown’s wheelchair to the bus, but when Zoellner braked abruptly to avoid a collision, Brown was thrown from her wheelchair and sustained serious injuries. Brown subsequently sued Zoellner and SunTran for negligence.⁴

At trial, SunTran asked the judge to give the jury a standard negligence instruction, but the judge denied the request. Instead, the judge instructed the jury that “the Defendants … as common carriers of passengers for hire, are bound to exercise the highest degree of care practicable under the circumstances.”⁵ The jury found in Brown’s favor and the court of appeals affirmed.

On appeal to the Arizona Supreme Court, SunTran argued that the heightened standard for common carriers—commonly known as the “common carrier doctrine”—should not be applied in Arizona. The court agreed, explaining first that the basis for applying the heightened standard is no longer valid. The common carrier doctrine was originally applied because passengers needed to be protected from the “hazardous conditions that were frequently encountered in the early days of public transportation.”⁶ But because those dangers no longer exist, the common carrier doctrine is inapplicable.

The court also explained that although past decisions have repeated the common carrier doctrine, Arizona courts have not entirely embraced the heightened standard. For example, the Arizona Supreme Court in Atchison, Topeka & Santa Fe Ry. Co. v. France⁷ agreed that the trial court gave the correct jury instruction that the railroad defendant was required to “exercise the highest degree of care for the safety of its passengers,”⁸ but then reversed the judgment because the trial court failed to give the standard negligence instruction.⁹ The court also noted that years after Atchison, the court of appeals upheld a “trial court’s refusal to apply the common carrier doctrine.”¹⁰

In Nunez, Brown argued that the common carrier doctrine should be applied because passengers trust that common carriers will ensure their safety and that a majority of other jurisdictions require a heightened standard of care. The court rejected those arguments, reasoning that the standard of reasonable care can be modified based on individual circumstances and that “[i]t is difficult to see why [Arizona] should impose upon the common carrier a duty to do more than a reasonable carrier would do under the facts of each particular case.”¹¹ Furthermore, although Arizona is not bound by decisions in other jurisdictions, many other courts—namely the New York Court of Appeals—have rejected the common carrier doctrine. The court agreed with the New York court that explaining the common carrier doctrine to a jury could be confusing to jurors because “the dividing line between the exercise of reasonable care under all the circumstances and the common carrier doctrine is … practically and intellectually elusive.”¹²

The court also rejected Brown’s final argument that the court must continue to apply the common carrier doctrine lest it violate the “anti-abrogation” clause of the Arizona Constitution. The court remanded the case to the superior court for a new trial, in which Brown can seek damages for standard negligence.

After years of confusing case law, the Arizona Supreme Court laid the negligence standard for public transportation carriers to rest by rejecting the common carrier doctrine. The decision simplifies jury instructions to reduce juror confusion and Arizona tort law by applying the same negligence standard to common carriers as is applicable to many other industries.

See also Matt Milner’s post, Highest Degree of Confusion: The Case Against the Common Carrier Doctrine.

No. CV-11-0186-PR (Ariz. Feb 23, 2012). ↩
Id. at ¶ 1. ↩
Id. at ¶ 4. ↩
Id. at ¶ 2–3. ↩
Id. at ¶ 4. ↩
Id. at ¶ 9. ↩
94 P.2d 434 (Ariz. 1939). ↩
Id. at 436. ↩
Id. ↩
*Lowry v. Montgomery Kone, Inc., 42 P.3d 621, 626 (Ariz. Ct. App. 2002). ↩
Nunez, No. CV-11-0186-PR at ¶ 19. ↩
Id. at ¶ 22. ↩

Cosper v. Rea: In an appeal from arbitration, disclosure of witnesses and exhibits is limited to simultaneous filing with the notice of appeal

Fri, 10 Feb 2012 16:46:00 -0700

In a decision released Monday, the Arizona Supreme Court clarified a procedural question concerning disclosure in appeals from arbitration. Pursuant to Arizona Rule of Civil Procedure 77(g)(1), an appellant must file an Appeal from Arbitration and Motion to Set for Trial simultaneously with a list of witnesses and exhibits that complies with the requirements of Rule 26.1. If the appellant does not file a list of witnesses and exhibits, “then the witnesses and exhibits intended to be used at trial by appellant shall be deemed to be those set forth in any such list previously filed in the action.” Subsection (g)(3) also states that the parties have 80 days from the filing of the appeal to complete discovery under Rules 26 through 37 of the Arizona Rules of Civil Procedure. And, subsection (g)(4) states: “For good cause shown the court may extend the time for discovery set forth in subsection (3) above and/or allow a supplemental list of witnesses and exhibits to be filed.”

In September 2009, Marco and Flor Mora sued Pauline Cosper for damages that resulted from a car accident. Following a mandatory arbitration in August 2010, the arbitrator entered an award in favor of the Moras. The next day, Cosper filed an Appeal from Arbitration requesting a trial de novo in superior court. He also then filed a list of witnesses and exhibits.

In October 2010, Cosper supplemented her witness list by designating a biomechanical expert and disclosing his report. The Moras moved to strike these supplemental disclosures as untimely. The superior court granted the Moras’ motion and found that Cosper had not ”attempted to show good cause” for the subsequent disclosure under subsection (g)(4). Cosper filed a special action petition with the court of appeals, and the court of appeals reversed. The court found that the disclosure fell within the 80-day discovery period in (g)(3). Specifically, it held that “Rule 77 permits supplemental disclosure pursuant to [Arizona Rules of Civil Procedure] 26 through 37 within [eighty] days after the filing of an appeal from compulsory arbitration, without requiring that parties show good cause or obtain the permission of the court.” Cosper v. Rae, No. CV–11–0083–PR, 2012 WL 360278, at ¶3 (Ariz. 2012). Essentially, the court of appeals held that “during the 80-day discovery period prescribed in (g)(3), parties have the right to both conduct discovery and disclose additional witnesses and exhibits.” Id. at ¶9.

The Arizona Supreme Court granted review to clarify the role of Rule 77(g) in appeals from arbitration. The Court held that subsection (g)(4)—which allows for the filing of a supplemental list of witnesses and exhibits for “good cause shown”—contradicts “any ongoing right to additional disclosure.” The parties, the Court held, “cannot possess an automatic and unqualified right to supplement witness and exhibit lists when the rule expressly requires good cause and approval of the court.” Id. at ¶8.

The Court rejected the court of appeals’ conclusion that during the 80-day period provided for in (g)(3), the “parties have the right to both conduct discovery and disclose additional witnesses and exhibits.” This conclusion, the Court found, would render (g)(1)—which requires concurrent filing of witness and exhibit lists—unnecessary. It would also mean that (g)(4)—which requires court approval to file supplemental lists—would not apply until after the 80-day period had run. The Court noted that both the “rule’s text and the consequences of creating an ongoing eighty-day disclosure period” cut against such a reading of the rule. Id. at ¶9.

Cosper pointed out to the Court that Rule 77(g) refers to Rules 26 through 37. As such, it applies to 26.1, which generally allows parties to supplement their disclosure of witnesses in civil cases. Therefore, Cosper argued, subsection (g)(3) creates the same right in appeals from arbitration awards. However, the Court held that Rule 77(g) and its “simultaneous” filing requirement govern appeals from arbitration, and that it controls over the more general Rule 26.1. The Court also noted that the Rule distinguishes between discovery and the filing of supplemental witnesses lists in, for example, subsection (g)(4). And, as such, reading “discovery” in (g)(3) to include the supplemental disclosure of witness and exhibit lists would obviate the need for their distinction elsewhere in the rule. Citing Arizona Dep’t of Revenue v. Action Marine Inc., 181 P.3d 188, 190 (2008), the Court noted that it will “not construe text to render any of its terms meaningless.” Cosper, WL 360278, at ¶10.

Finally, the Court also noted that the court of appeals’ holding could “undermine Rule 77’s goal of a prompt trial de novo,” by allowing for the disclosure of witnesses up until the end of the 80-day period. Such a disclosure would likely mandate the extension of the discovery period.

The court vacated the court of appeals’ opinion, and held that the appellant must file her list of witnesses and exhibits simultaneously with the notice of appeal, and that the list could not be supplemented without good cause shown.

New York Times: Study Challenges Supreme Court's Image as Defender of Free Speech

Mon, 06 Feb 2012 17:36:00 -0700

New York Times: Study Challenges Supreme Court's Image as Defender of Free Speech:

The New York Times cites Erwin Chemerinsky’s Not a Free Speech Court in a recent article, which appeared in issue 53:3.

The Volokh Conspiracy: The Rise of White-Collar Defense Practices at Large Law Firms

Mon, 06 Feb 2012 17:14:58 -0700

The Volokh Conspiracy: The Rise of White-Collar Defense Practices at Large Law Firms:

Orin Kerr links to Chuck Weisselberg and Su Li’s article in the spring issue, Big Law’s Sixth Amendment.

Arizona Supreme Court holds narrowly for lenders in Vasquez v. Saxon Mortgage, Inc.

Tue, 20 Dec 2011 21:55:09 -0700

On November 18, the Arizona Supreme Court filed its decision in Vasquez v. Saxon Mortgage, Inc., et al.¹ The case centered on whether the defendant Deutsche Bank could foreclose on Tucson homeowner Julia Vasquez, even though Deutsche Bank was not the beneficiary of record on the deed of trust. Saxon Mortgage, the originator of the loan and co-defendant, was still the beneficiary of record on the deed of trust because the assignment to Deutsche Bank had not been recorded. In a narrow holding based in Arizona statutory law, the court held that Deutsche Bank could foreclose on Julia Vasquez.

The United States Bankruptcy Court for the District of Arizona certified two questions to the Arizona Supreme Court:

Is the recording of an assignment of deed of trust required prior to the filing of a notice of trustee’s sale under A.R.S. § 33-808 when the assignee holds a promissory note payable to bearer?
“Must the beneficiary of a deed of trust being foreclosed pursuant to A.R.S. § 33-807 have the right to enforce the secured obligation?”

The court held that an assignment of a deed of trust does not need to be recorded prior to the filing of a notice of trustee’s sale to enforce the secured obligation against a mortgagor. The court only answered the first certified question because the second certified question was “not determinative” of the case.

The court stressed that Arizona deed of trust law “is a creature of statutes,” and, as a result, viewed its role as “entirely one of statutory construction.” The court based its reasoning on A.R.S. §§ 33-808, 33-412(B), 33-817, and 33-411.01.

A.R.S. § 33-808 regulates a notice of trustee’s sale. This section does not overtly require the recording of an assignment of a deed of trust before the trustee’s sale. It noted that the policy behind recording statutes is to “protect interests in property against claims of subsequent purchasers or creditors without notice.” The court also considered A.R.S. § 33-412(B)—providing that “[u]nrecorded instruments, as between the parties and their heirs … shall be valid and binding”—as further proof that recording statutes are meant to protect such interests. They do not, the court noticed, “affect a deed’s validity as to the obligor.”

The heart of the opinion revolved around A.R.S. §§ 33-817 and 33-411.01. A.R.S. § 33-817, in the view of the court, stands for a “mortgage follows the note” theory. The section provides that “[t]he transfer of any contract or contracts secured by a trust deed shall operate as a transfer of the security for such contract or contracts.” The Court could find no logical reason to imply a recording requirement into §33-808 when “§33-817 does not require separate documentation of an assignment of the deed of trust when the secured note is transferred.” A.R.S. § 33-411.01 imposes a consequence on those who fail to record the transfer of a deed of trust:

indemnification of legal fees in “any action in which the transferee’s interest in such property is at issue.” Although the section states that deeds “shall be recorded,” the court noted that the section did “not impose a recording requirement.” Similarly, the court found that the section did not “suggest that a notice of trustee’s sale on a previously assigned deed of trust is valid only if the assignment was recorded.”

Finally, the court dismissed the argument that such a recording of an assignment is necessary to give effect to A.R.S. § 33-807.01, “which requires lenders to ‘explore options’ with borrowers at least thirty days before recording a notice of trustee’s sale.” While the Attorney General argued as amicus curiae that unless so interpreted “homeowners will not know with whom to ‘explore options,’” the Court noted that the statute “requires the lender to contact the homeowner, not the other way around.”

The court declined to address the second certified question, finding it moot because Deutsche Bank held the promissory note and had the legal right to record the notice of trustee’s sale.

Julia Vasquez’s case now returns to the U.S. Bankruptcy Court. Given the unusual issues that have arisen in this case so far, it could easily remain in the public eye.

Vasquez v. Saxon Mortgage, Inc., 2011 WL 5599440, ___ P.3d ___ (Ariz. 2011). ↩

Rivera-Longoria v. Slayton: The Prosecutor’s Plea for Plea Bargaining is Answered

Mon, 05 Dec 2011 12:53:00 -0700

Arizona Rule of Criminal Procedure 15.8 provides for sanctions if a prosecutor “imposes a plea deadline” and fails to disclose material information to the defense at least 30 days before the plea offer expires. On November 23, 2011, the Arizona Supreme Court defined the boundaries of Rule 15.8 in Rivera-Longoria v. Slayton.

The court of appeals held that, as a matter of statutory construction, whenever a prosecutor withdraws a plea offer—with an express deadline or not—the prosecutor “imposes a plea deadline” and thus, Rule 15.8 is invoked. As a result of this “imposed” deadline, the state must make the material disclosures listed in Rule 15.1(b) no less than 30 days prior to that deadline. If the disclosure is not made until after a plea offer is withdrawn, the state has two choices. The state may reoffer the plea or risk preclusion of all evidence disclosed after the deadline.

Fearing that the judiciary was impinging upon the executive’s exclusive province to offer, extend, or terminate plea agreements, the state petitioned for certiorari. The Court acknowledged that open-ended plea offers are a frequent occurrence in Arizona and accepted review.

The Court vacated the Arizona Court of Appeals decision and held that Rule 15.8 does not apply when a prosecutor withdraws an open-ended plea offer. The Court seized on the appellate court’s statutory interpretation. Although the court of appeals reasoned that a “deadline” could occur when the prosecution withdraws an “open-ended” offer because to “impose” a deadline means to “establish or apply by authority,” the supreme court disagreed. Instead, the Court decided that withdrawing an offer without an express deadline is not the same as “imposing a deadline” within the meaning of Rule 15.8.

Recognizing that “deadlines … prospectively identify the period in which a person or entity must take some action,” imposing a plea deadline can only occur when the state expressly and explicitly identifies a date by which the defendant must accept the offer. The Court’s reading gave credence to the common understanding that deadlines “loom.” As a result, Rule 15.8 only applies to plea offers with express deadlines.

In addition to the statutory construction issue, and perhaps of greater practical importance, the Court dismissed any potential separation of powers issue. In its petition for certiorari, the state argued that the court of appeals’ interpretation of Rule 15.8’s sanctions required prosecutors to keep an offer open indefinitely or face preclusion of evidence at trial. In a sense, the appellate court’s decision regarding sanctions forced prosecutors to take the carrot by reoffering the plea or face the stick of inadmissibility at trial. The supreme court clarified the practical application and effect of Rule 15.8: Not only does the rule only extend to plea offers with express deadlines, but the rule only applies to “materials and information within the prosecutor’s possession or control.” As such, even if a prosecutor expressly delineates a plea deadline, Rule 15.8’s disclosure obligations only apply to evidence that is within the prosecutor’s possession or control when the deadline lapses. If the prosecutor does not have the evidence within his possession or control at the time of the deadline, but later receives the information, Rule 15.8’s sanctions do not apply. The Court’s decision allows prosecutors to effectively assert their executive discretion when offering pleas without worry that evidence not yet available—like lab reports—may be inadmissible at trial.

Adjunct Professor and Pima County prosecutor, Rick Unklesbay, noted:

The Arizona Supreme Court handed down a common sense interpretation of Criminal Rule 15.8 that had previously been lacking. The Court gave Arizona prosecutors a clear win with respect to how and when they can efficiently make plea offers to criminal defendants. Beyond the holding that Rule 15.8 sanctions do not apply when a prosecutor withdraws an open-ended plea offer that did not have a fixed deadline for acceptance, the Court found that the disclosure referred to in the Rule applies to that evidence within the prosecutor’s possession and control when the offer lapses. It is clear now (unless as the Court suggests an amendment may be made) the Rule does not require a prosecutor to reinstate a lapsed offer after obtaining new evidence previously not within the prosecutor’s possession or control. Thus, previous court rulings that required even the most diligent prosecutor to reinstate an expired plea offer upon the receipt of material new evidence or face possible preclusion (much to the frustration of many prosecutors) are now voided. Prosecutors should easily meet the Court’s requirements of disclosure of Rule 15.1(b) evidence in their possession or control before a plea deadline. Now, however, discovery of new evidence after that deadline won’t force a reinstatement of a plea that is not in the State’s interest.

Although the Court’s interpretation of Rule 15.8 applies only to plea offers with an explicit deadline, there is the potential for change. As Professor Unklesbay notes, the Court hints at a possible future amendment: “[W]e think the better approach is to consider amending the rule rather than construing the ‘imposi[tion] [of] a plea deadline’ to mean the withdrawal of an offer without a deadline.” But for now, Rule 15.8 is confined to pleas with express deadlines and disclosure that is within the prosecutor’s possession and control.

Arizona Supreme Court reinstates Independent Redistricting Committee Chair Colleen Mathis

Fri, 02 Dec 2011 18:09:50 -0700

The Arizona Supreme Court yesterday reinstated Independent Redistricting Committee Chair Colleen Mathis. The Court concluded: “the letter of November 1, 2011, from the Acting Governor to the intervenor Colleen Mathis does not demonstrate ‘substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office’ by the intervenor Mathis, as required under Article 4, Part 2, Section 1(10) of the Arizona Constitution.”

The Court will soon issue an opinion “more fully detailing its reasoning” in the matter.

Arizona Supreme Court allows Pearce recall to move forward, rejects constitutional challenge

Sat, 19 Nov 2011 12:38:00 -0700

On November 8, 2011, voters in Arizona’s Legislative District 18 ousted Senate President Russell Pearce in a historic recall election—the first successful recall of a sitting legislator in Arizona and of a sitting Senate president in the United States. The Arizona Supreme Court allowed the election after dismissing District 18 voter Franklin Ross’s objection to procedures used to obtain the signatures necessary for recall.

The Court’s opinion in Ross v. Bennett reinforces Arizona’s robust embrace of recall elections. This reinforcement signals the Court’s continuing, 86-year devotion to defending the populist structure of the Arizona Constitution.

Ross proceeds in two parts. In the first part, the Court reviews the history and meaning of recall elections. It also reaffirms that recall and initiative petitions need only substantially comply with applicable legal procedures, while referendum petitions must strictly comply with the same. In the second part, the Court reviews the procedures used in the Pearce recall petitions, finding that they substantially comply with governing law. The Court also finds the applicable statutes consistent with the Arizona Constitutional provisions governing recall.

Ross justifies the substantial compliance standard with the following points: (1) Arizona’s unique history regarding recall entails liberal protection of the public’s right to recall public officials; (2) recall favors the will of the public over protection of legislators; (3) recall elections require minimal intrusion on the lawmaking process; (4) recall asserts public will, rather than that of a loud minority; and (5) recall petition requirements protect against fraud and abuse.

The decision is significant in its rejection of calls to curb the strength of direct democracy mechanisms. Arizona’s Constitutional framers and western-state populists, who first advocated adoption of modern direct democracy mechanisms, saw them as means to divest the legislature of policy-making authority, combating the pervasive influence of corporate interests in capturing state and local officials.¹ In contrast, many eastern- and southern-state politicians embraced Madisonian views of state legislative power—that it should rest squarely with the legislature, rather than incorporating direct democracy mechanisms.²

Modern critiques of direct democracy mechanisms generally and recall particularly reflect the tension between populist and Madisonian views. While recall may be used by the public to recall captured politicians, special interests may likewise attempt to recall uncaptured politicians.³ More importantly, overzealous use of recall may result in absurd or distasteful results: Uninformed voters may assert their own prejudices and self-interests over the good of the state.⁴

Yet, recall serves as an inherent piece of Arizona’s political process. It aims to protect the public, engendering trust in the system when particular politicians face overwhelming public dissatisfaction.⁵ The Court’s procedural support of recall enhances Arizona’s populist political processes.

Id. at ¶ 7; see also Nathaniel A. Persily, The Peculiar Geography of Direct Democracy: Why the Initiative, Referendum and Recall Developed in the American West, 2 Mich. L. & Pol’y Rev. 11, 28–29 (1997). ↩
Stephen M. Griffin, California Constitutionalism: Trust in Government and Direct Democracy, 11 U. Pa. J. Const. L. 551, 552–53 (2009). ↩
See John Dinan, The Original Intent and Current Operation of Direct Democratic Institutions, 70 Alb. L. Rev. 1035, 1035 (2007) (discussing the same with regard to initiatives). ↩
See Daniel M. Warner, Direct Democracy: The Right of the People to Make Fools of Themselves; The Use and Abuse of Initiative and Referendum, a Local Government Perspective, 19 Seattle U. L. Rev. 47, 48–49 (1995). ↩
See Griffin, 552. ↩

Highest Degree of Confusion: The Case Against the Common Carrier Doctrine

Sat, 12 Nov 2011 23:17:00 -0700

The common carrier doctrine—a common law principle that holds common carriers of passengers to the “highest degree of care,” rather than the reasonable care standard that governs most negligence actions—has been accepted as the law in Arizona dating back to territorial days. The doctrine holds common carriers to a higher standard of care than the ordinary person is required to exercise; in other words, the common carrier must exercise greater than reasonable care. It remains unclear, however, what exactly constitutes “greater than reasonable” behavior. The real trouble arises if the liability of a common carrier must be weighed against another actor held to the reasonable care standard for purposes of comparative negligence analysis. When Arizona first adopted the common carrier doctrine, fact-finders were not yet charged with the task of allocating percentages of fault between negligent parties. Since the dawn of the comparative negligence era, the prospect of applying the common carrier doctrine in a uniform and equitable fashion is challenging, if not impossible.

Perhaps it is not a coincidence then that since Arizona embraced a comparative negligence scheme,¹ the Arizona Court of Appeals has bucked against the traditional doctrine on at least two separate occasions.² Most persuasively, the Lowrey court articulated a compelling argument for abandoning the common carrier doctrine, contending that the justifications³ for the common carrier doctrine can be wholly accommodated by the reasonable care standard, so the doctrine “adds no useful element to the ordinary negligence standard of reasonable care under the circumstances.”⁴

On December 6, 2011, the Arizona Supreme Court will hear Oral Argument in Nunez v. Professional Transit Management (CV-11-0186-PR), presenting the Court with an opportunity to revisit the common carrier doctrine. Despite the doctrine’s long history in the state, the Arizona Supreme Court should seize the opportunity to adopt the reasonable care approach to common carrier liability for five reasons: (1) to achieve a greater level of consistency with general principles of negligence law; (2) to simplify the job of the fact-finder and minimize the likelihood of confusion when apportioning liability to common carriers; (3) to promote judicial economy; (4) to modernize tort law to better reflect the realities of mass-transit in the 21st century; and (5) to encourage the growth of a robust public transportation system in Arizona.

Eliminating the common carrier doctrine in favor of the reasonable care under the circumstances standard would reconcile the law governing common carriers with the bedrock principles of negligence law. For most negligence actions, the reasonable care under the circumstances standard serves as the constant. Its elegance and effectiveness is derived from its flexibility. What constitutes reasonable care under the circumstances will change from case to case, but the standard of care remains constant.⁵ In other words, the reasonable care standard already requires certain actors (like common carriers) to take more precautions based on the individual circumstances of a case. Fact-finders can consider, for instance, the special relationship between a common carrier and a passenger when determining whether a carrier’s behavior met the standard of reasonable care. As a result, eliminating the common carrier doctrine would harmonize common carrier liability with the traditional foundation of negligence law.

Eliminating the common carrier doctrine would also simplify the fact-finder’s task in common carrier negligence actions and, in turn, minimize the likelihood of jury confusion. Requiring a common carrier to exercise greater than reasonable care “is a hard concept to make sense of and one very likely to be misunderstood.”⁶ As a result, when weighing the comparative fault between a common carrier and a passenger, the jury is charged with apportioning fault based on two different standards of care: the reasonable care standard governs the plaintiff’s actions, but the highest degree of care standard applies to the defendants. The task of apportioning fault in a negligence case is always challenging, but when jurors are asked to apply different legal standards to different actors the challenge grows more complex. If the basic negligence standard of reasonable care is applied to all parties, however, jurors can focus on sorting out the facts rather than trying to make sense of competing legal standards.

If common carriers are not held to a different standard of care, then the judicial resources exhausted on determining whether a party is a common carrier could be reallocated. From state to state, the scope of what constitutes a common carrier differs, particularly on the margins. For instance, should an escalator be considered a common carrier? What about an amusement park ride? Even if a jurisdiction has clear rules about which categories of transportation constitute common carriers, there is still likely to be litigation about whether a particular party was acting as a common carrier. If, for example, taxicabs are recognized as common carriers, then would a rideshare advertised on Craigslist be considered a common carrier? If a jurisdiction applies the common carrier doctrine, then the stakes are high for parties that might be considered common carriers. When facing the possibility of being held to the highest degree of care—and as a consequence face a higher likelihood of liability—those parties will likely attempt to escape categorization as a common carrier. In a scheme that simply applies the reasonable care standard, this aspect of common carrier litigation would disappear. Instead the sole focus would be on whether the behavior of the parties was reasonable in light of the circumstances, not on whether they fall within the scope of the common carrier definition.

Many of the legitimate justifications for the common carrier doctrine at the time of its creation have faded away with transformations in society. Although there was a time when mass transit was an ultrahazardous activity, technological improvements have greatly reduced this concern. Additionally, stricter government regulation has spurred innovation and prevented carriers from ignoring the safety concerns associated with mass transit. Applying anachronistic standards increases the risk of anomalous outcomes that could result from the confusion caused by the common carrier doctrine.

Finally, the common carrier doctrine creates a greater risk of liability for suppliers of mass transit, thus discouraging the growth and development of Arizona’s public transportation infrastructure. Recently, Arizona has taken meaningful steps forward in this area through the construction of the light rail system in Phoenix, plans to install a modern streetcar in Tucson, and long-term aspirations of connecting the metropolises with a high-speed train. In the interest of creating a greener, more efficient, and more desirable transportation infrastructure, Arizona must embrace mass transit. Special categories of liability that target common carriers only serve to inhibit this goal. Adequate levels of safety and redressability in the event of true negligence are still attainable under a traditional negligence scheme. The fact that New York, the state with great reliance on common carriers, has turned away from the common carrier doctrine should alleviate concerns that abandoning the doctrine will lead to a more hazardous public transportation infrastructure.⁷

Just as the safety of common carriers has changed over the past century, so too should the status of the common carrier doctrine. If formally adopted, the reasonable care standard would provide a consistent, workable framework for assessing common carrier liability as Arizona begins to increase its reliance on public transportation. If, however, the court does not wish to adopt the Lowrey approach, it should at least seize the opportunity to clarify the emerging confusion in the lower courts and issue a clear standard for common carrier liability.

Ariz. Rev. Stat. § 12-2505 (2011). ↩
See Lowrey v. Montgomery Kone, Inc., 42 P.3d 621, 627 (Ariz. Ct. App. 2002) (“We believe that the time has come to discard the notion that a common carrier bears a higher duty towards its passengers than that of reasonable care under all of the circumstances.”); see also Block v. Meyer, 696 P.2d 1397, 1383–84 (Ariz. Ct. App. 1985) (“We find no error in the trial court’s failure to instruct the jury that a common carrier owes its passengers the highest standard of care practicable, or words to that effect.”). ↩
Historically, the common carrier doctrine was justified based on the perceived ultra-hazardousness of mass transit, the carrier’s duty to the public, and the passenger’s dependence on the common carrier for its safety. ↩
42 P.3d at 626. ↩
Prosser & Keaton, Torts § 32 173–74 (5th ed. 1984) (“The whole theory of negligence presupposes some uniform standard of behavior… . The standard of conduct which the community demands must be an external and objective one, rather than the individual judgment, good or bad, of the particular actor … .”). ↩
Lowrey, 42 P.3d at 627. ↩
See Bethel v. N.Y. City Transit Auth., 703 N.E.2d 1214, 1218 (N.Y. 1998) (rejecting the common carrier doctrine in favor of the reasonable care standard). ↩

ALR member argues in front of the Arizona Supreme Court

Thu, 20 Oct 2011 23:56:00 -0700

ALR member and 3L writer Stephen Elzinga argued in front of the Arizona Supreme Court in State v. Eddington last month. You can view an archived video of the argument on the here.

AZ Supreme Court adopts Daubert standard for expert witness testimony after constitutional dustup

Wed, 14 Sep 2011 22:32:00 -0700

For nearly 40 years the Arizona Supreme Court followed the Frye standard governing expert witness testimony. On September 7, 2011, the Court changed this trajectory by amending Arizona Rule of Evidence 702. The Court’s decision effectively resolved the lengthy tension between Frye and Daubert in Arizona. Effective January 1, 2012, Arizona will join a majority of other states in following the Daubert standard.

But the Supreme Court’s recent amendment was prompted over a year earlier. In April 2010, the Arizona Legislature ignited this debate by enacting the Daubert standard through Senate Bill 1189 (later codified Arizona Revised Statutes section 12-2203). The bill’s sponsor defended SB 1189 as a mechanism to make Arizona a “competitive business location.” Other members of the legal community noted that Arizona should make the change to Daubert to align with federal courts and improve judicial efficiency.

Although the legislature was well-meaning in enacting section 12-2203, it could not pass constitutional muster. The Arizona Constitution gives the Arizona Supreme Court the exclusive power to promulgate procedural rules. Given this select authority, any procedural statute enacted by the legislature conflicts with the Court’s constitutionally vested rulemaking power. Applying the constitutional framework set forth in Seisenger v. Seibel, the Arizona Court of Appeals in Lear v. Fields held that § 12-2203 violated the separation of powers doctrine.

This Daubert debate prompted the Court to initiate its own independent review of the Rules of Evidence—thereby mooting any separation of powers issue. On March 24, 2010, Chief Justice Rebecca Berch established the Ad Hoc Committee on Rules of Evidence. The Committee’s goal was to compare the Arizona and Federal Rules—especially Rule 702. On October 15, the Committee met at the University of Arizona to discuss the merits of retaining Frye or adopting Daubert. After conferring with Professor Thomas Mauet, Deputy County Attorney Kathleen Mayer and Attorney John Canby, the Committee became deadlocked and did not give a definitive recommendation to the Court. From January to May 2011, the Court accepted public comment.

Unlike a formal adjudication, the Court’s recent amendment to Rule 702 did not include an analysis for their selection. Rather, the Court’s Daubert decision was framed as a 2012 amendment to Rule 702 and only included a Comment about its application.¹

Professor Mauet commented on the long-term impact of the change:

What will Arizona’s change from a Frye jurisdiction to a Daubert jurisdiction mean for trial lawyers? First, the result in most cases, as far as the admissibility of expert witness testimony is concerned, will not change. For example, in personal injury cases, plaintiffs’ and defendants’ expert medical witnesses, previously admitted under Frye, will also be admissible under Daubert. Second, only in complex cases, such as toxic tort and pharmaceutical cases involving causation issues, will the Daubert requirement of showing that the expert’s proposed testimony is sufficiently reliable be an additional hurdle. Third, Arizona will probably go through the same phases as other states that have adopted Daubert. In the first months lawyers may file a number of Daubert motions challenging the admissibility of the other side’s expert witness testimony. As courts rule, and lawyers learn that the rulings are much the same as before, the flurry of motions will abate, and life will return largely to how things were before the change.

Notwithstanding the lack of guidance on the Rule’s application, the Court’s amendment to Rule 702 will still substantially affect how expert testimony is conducted in Arizona. The judge’s role as “gatekeeper” of reliability will likely afford many new challenges to existing expert witness testimony.

Comment to 2012 Amendment: “The amendment recognizes that trial courts should serve as gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to the jury’s determination of facts at issue… The trial court’s gatekeeping function is not intended to replace the adversary system. Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” ↩

ALR member runner-up in 2011 Michael Greenberg Student Writing Competition

Wed, 14 Sep 2011 20:50:29 -0700

Shawn Casey, an Executive Note Editor on the 2012 board, was second runner-up in the Michael Greenberg Student Writing Competition with her paper “Illicit Regulation: A Framework for Challenging the Procedural Validity of the Gay Blood Ban.”

Wall Street Journal links to "Arming States' Rights" paper

Fri, 15 Jul 2011 13:25:00 -0700

The Wall Street Journal featured a story yesterday about Gary Marbut, a Montana gun rights advocate and a key figure in an upcoming legal battle that may challenge Congress’s constitutional authority to regulate interstate commerce. His Firearms Freedom Act, adopted by eight states so far, attempts to block federal regulation of guns that are manufactured and used within the state.

Marbut argues that the broad interpretation of the Commerce Clause in Wickard v. Filburn is incorrect, and that the Constitution only gives Congress the authority to regulate when interstate commerce is directly affected:

He conceived of the Firearms Freedom Act as a way to get it reconsidered. He says he focused on the commerce clause, rather than Second Amendment theories popular with firearms enthusiasts, to prompt a broad ruling that would rein in federal power.

ALR members Kathleen Callahan and Lisa Lindemenn recently discussed this “Commerce Battering Ram” in their paper Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy.

Supreme Court strikes down Arizona campaign finance law

Wed, 29 Jun 2011 00:15:00 -0700

In the wake of a decade of corruption scandals, Arizona voters adopted the Citizens Clean Elections Act in 1998. The Act adopted a voluntary system of public funding for statewide electoral campaigns, ensuring that participating candidates would not be under the thumb of their contributors. Participating candidates received a lump sum to run their campaigns, and also received “matching funds” if outspent by a non-participating opponent. This “matching funds” provision guaranteed that if candidates accepted public funding, they could compete on an even playing field with non-participating opponents.

On Monday, the Supreme Court struck down the Act’s matching funds provision as an unconstitutional burden on free speech in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. Even though candidates could opt out of clean elections and spend as much as they liked without limit under the Act, the Court held that the matching funds provision burdens political expenditures, which are treated as constitutionally protected speech. Chief Justice Roberts delivered the 5 to 4 opinion, dividing along the same lines as the Court’s other recent decisions striking down campaign finance laws, Davis v. FEC and Citizens United v. FEC.

The decision highlights a significant tension in First Amendment law. Since the Act’s inception, political expenditures have increased in Arizona. Further, the burden imposed by “matching funds” is responsive speech. As Justice Kagan points out in a forceful dissent, the Act promotes speech through lively public discourse. However, the majority construes this as a “‘beggar thy neighbor’ approach to free speech,” impermissibly enhancing the voices of some at the expense of others.

In the context of elections, speech costs money, and so speakers with the capacity to raise and spend the most money dominate public discourse. Nonetheless, in the conflict between a fair public debate and the right of an individual to spend free from government interference, Arizona Free Enterprise strongly reaffirms that “the whole point of the First Amendment is to protect speakers against unjustified government restrictions on speech, even when those restrictions reflect the will of the majority. When it comes to protected speech, the speaker is sovereign.”

Professor Toni Massaro comments:

The recent turn in campaign finance law and the First Amendment highlight an enduring puzzle—one that should not be seen as something that can be solved by reference to one’s political commitments. Speech regulations can both advance and hamper free discourse, and likewise can open or narrow the range of ideas available. The paradox is one that business regulators grasp more easily. Justice Oliver Wendell Holmes famously quipped that all of life is an experiment, including First Amendment theories about when and where the marketplace of ideas is best advanced through nonregulation. Only time will tell whether the Court’s recent interventions into state and federal regulation of elections are the wisest course for democracy. There certainly is no other realm in which it matters more whether the Court has effected the best possible balance. No matter what one thinks of any particular outcome, one needs to see that fundamental amendment values line up on both sides of the debate—something often lost in the news accounts and politicized reactions to the cases.