Arizona Legal Issues – Legal News that can Impact all of of us.
Arizona legal issues may not appear to impact your life when you first hear of them. But many legal issues in Arizona can change how other laws are interpreted. Many of them set standards that actually will touch your life in one way or another. Schlesinger Conrad Law Firm seeks to highlight some of these Arizona legal issues here, as well as developing legal trends, and show how they can change our lives.
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One Thing is Certain in the Uncertain Times of Covid-19:
Law Suits Will Follow.
As with any economically tumultuous time, the Covid-19 crisis will undoubtedly lead to an increase in stock-drop litigation and shareholder derivative actions, as well as increased governmental agency investigations. Lawsuits have already been filed. On March 12, 2020, a plaintiff shareholder filed a securities class action lawsuit against Norwegian Cruise Line Holdings, Ltd. alleging that the company was employing misleading sales tactics related to the outbreak. Also on March 12, 2020, an Inovio Pharmaceuticals shareholder filed a securities class action lawsuit against the company and its CEO based upon the CEO’s statements about the company’s development of a COVID-19 vaccine. Other suits will likely file in short order, particularly where companies filed year-end financials just before the virus’ effect was fully realized.
Those that entered into contracts pre-Covid may well seek to get out of them given the economic contraction. One argument may be force majeure — Act of God — or an argument that the contract is no longer feasible. The force majeure argument will likely fail, particularly in the context of mergers and acquisitions. Most mergers do not even contain that clause, and others will find that a virus is not a natural disaster in the way that a tornado may be.
There is also business litigation that will be focussed on insurance issues. For example, many businesses have business interruption insurance. The availability of business interruption insurance may be critical to getting through this crisis. But the issue is whether insurance policies will cover interruption due to the novel coronavirus. Arguably, this is something that should be uniform across the country, or at a minimum across policy language. But what if your business falls into a grey area of whether it was, or was not, essential? Already there are reports that nearly a a dozen lawsuits from coast to coast where businesses are seeking declarations that their insurance must cover their losses because they were forced to close by local authorities because they were deemed nonessential.
D&O claims will likely flourish. Plaintiffs’ attorneys may try to establish that a company’s disclosures inadequately warned about the nature or scope of risks it faced from a pandemic, similar to what plaintiffs claimed after the SARS and Ebola outbreaks. That will translate into large document requests and electronic discovery issues.
We can also expect suits after workers return to work in the rush to “reopen America”. Gyms are an obvious example with their close-packed machines, communal locker rooms and sweat. While some gyms are trying to reopen with “social distancing” in the form of “one machine apart” and six feet of separation, this is unlikely to be maintained. If people then get sick – whether employees or invitees — business litigation is likely to follow. Plaintiffs may allege that the business owner failed to use all reasonable means of preventing a known risk, and shareholders may sue for breach of fiduciary duty or negligence. Most likely these cases will be met with stiff resistance, and only the exceptional case would prevail. But the energy, aggravation of defending even a frivolous business litigation lawsuit can be expensive. It is the last thing businesses need coming out of this economically challenging time for businesses.
Court Rules in Favor of Schlesinger Conrad’s Clients on Motions to Dismiss.
On June 19, 2019, Hon. Theodore Campagnolo issued an Order in the Superior Court in Arizona. That Order denied the third attempt by Defendants to dismiss Schlesinger Conrad’s clients, Plaintiffs’ in a securities suit alleging, inter alia, violation of Arizona Securities Act, A.R.S. § 44-1991, and rescission in the amount of not less than $2.1 million. The ruling allows the case to proceed as to the company in which Plaintiffs invested, as well as the law firm that allegedly drafted the Operating Agreement and all other offering documents. The Court stated: “In this case, the … Amended Complaint is as short and plain as reasonable[y] possible, in light of the factual and legal allegations. [It] gives the Defendants fair notice of the nature and bases of the claims, and indicates the type of litigation involved. The wording and allegations do not ramble. The allegations are not conclusory. They are based upon well-pled factual assertions.”
If you have a case that you believe needs real investigation and a thorough understanding of the applicable laws, please contact Schlesinger Conrad to discuss your matter.
California Supreme Court Moves to Make Bar Exam Easier to Pass
If you are looking for a trained attorney, however, you need to more than that they passed the bar in your state. You need to know how long they have been practicing, and how they analyze and approach cases. Even the top-scoring bar-passer may have no practical experience. Lack of knowledge as to how approach a brief or conduct discovery can lead to devastating consequences for the client.
University of California, Los Angeles, School of Law, offered numerous clinics including legal writing, depositions and discovery and other classes that actually prepared a graduate to enter the ranks of attorney’s knowing how to practice in the everyday situations which a lawyer finds himself or herself.
If you need to hire a lawyer, ask about the attorney’s real-world experience. It may be that the new graduate you are considering has a wealth of nuts-and-bolts experience. But you need to ask, and you need to feel confident that whoever you have represent you — whether it is Schlesinger Conrad or another firm — can handle the large number of documents that may be involved, succeed in tricky negotiations and position your case for success. Don’t be shy about asking any attorney tough questions. Schlesinger Conrad is happy to answer your questions and talk about important Arizona legal issues. Any attorney should be, and an attorney who gets defensive when asked may not be the right firm for you.
Have a question? Contact Schlesinger Conrad. We’re happy to discuss your matter by phone. 602-812-3661.
Three Tiered Justice — Small, Medium and Large
As of July 2018, the Arizona justice system will become more blatantly about money than it ever has been. Arizona Rule of Civil Procedure 26.2 will severely restrict the amount and time for case investigation. And it’s all based upon how much money the plaintiff wants.
Providing more legal resources based upon money is nothing new. Arizona – like most states – has long had separate courts for small claims, claims under $10,000 and those for claims more than $10,000. The idea is that in lower damages claims, it is counterproductive to have to spend large amounts on attorneys.
But the July 2018 changes will impact cases that are under $50,000 by restricting the number of witnesses that can be deposed, and limiting the number of requests for production of documents and interrogatories. These are the central tools for obtaining evidence that can make or break a case. Requests for Production mean whether the party can seek evidence from the other side such as contracts, memorandum, evidence of sales, checks, etc. The list of possible documents that are needed depends on the nature of the case. Obtaining an initial set of documents can reveal that other documents are needed. Interrogatories force the opponent to provide information by answering targeted questions about the case. But if your claim is $50,000 or less, you may be out of luck.
Further, lower tier parties will only get two days to try their case. That may sound like a good idea to keep costs down and keep cases moving through the system, but the forced abbreviation of cases can wreck havoc, also. If a witness is not cooperating, for example, it can become much harder to convince a judge that more time is needed. As it is, if a party is having problems getting what they need, the judge will point to the “fast track” rules and push the case along. These new “tiers” will exacerbate the problem.
Moreover, it seems that this system does not take into account the realities of litigation. Every case being pushed through discovery within 120 days, means that really learning the facts of any one case will be difficult. It takes 30 days to get discovery responses back, and if the responding party tries to hide the ball, negotiations or “meet and confer” discussions have to be done before filing a motion to compel responses. Getting the motion heard and getting a ruling can easily take the full four months that will be available for discovery. Getting the documents and then fleshing out that discovery means it will be difficult to complete meaningful discovery before the deadlines. Tier 1 cases will be as much about beating the clock as they will be about real justice. As it is, personal injury attorneys frequently do little in the way of fact investigation, push their clients to take what the insurance company is offering, and move on to the next case. The new “tiered” judicial track seems to condone that behavior.
This is in contrast to Tier 2 cases with damages claimed between $50,000 and $300,000. Parties in Tier 2 cases will be entitled to more document requests, more interrogatories and depositions. As opposed to Tier 1 cases, Tier 2 will be able to take 180 days to complete discovery.
If a party claims more than $300,000 in damages, that party will be entitled to 240 days to complete discovery. The idea being that the more complicated cases will require more time. But a breach of a single lease may have damages over $300,000, while involving no more witnesses or documents than a defamation case with damages of $150,000, or even a car accident where damages are only $30,000.
According to the State of Arizona, if you have more money, you get more time and more tools. In other words, Arizona is making it clear that the rich get a better shot at justice.
If you have a case that you believe needs real investigation and a thorough understanding of the applicable laws, please contact Schlesinger Conrad to discuss your matter.
Conviction by Computer in the UK Takes the Humanity Out of the Law
“Under this proposal, defendants who opt into the online procedure and plead guilty will be offered the option to accept a pre-determined penalty (including the payment of any appropriate compensation and costs), be convicted and pay the amount immediately,” said the government paper published earlier today on the scheme.”
While it certainly would free up the courts for more serious crimes, there are many reasons why this is a poor idea. Not only will judges be unaware of any mitigating circumstances, the movement away from personal contact with the defendant is contrary to the role the courts play in our social mores, and will soon become a Arizona legal issue.
Some of the critiques by dissenters highlight this concern.
Some respondents who opposed the principle raised concerns around the lack of judicial involvement in the procedure. These respondents suggested that in some cases there might be mitigating circumstances which a judge should take into consideration when setting an appropriate sentence. Similarly, some respondents have raised concerns about ‘sentencing by algorithm’, the idea that decisions currently made by judges will now be made by computer programs.
But more than that, there is a ritual to our legal system. The judge sits in a ritual robe, separate and apart from the other courtroom participants. This provides an aura of authority. Legal counsel are separated by the “bar” and ordinary citizens not before the court are excluded from this area. The same principal sets any jury off in the “jury box.” Typically, the jury is to one side of the judge, and situated between the judge and the defendant and prosecutor. This conveys an element of neutrality; the jury is aligned with neither the judge nor the litigants.
The seemingly archaic ritual that is acted out in the courtroom creates or emphasizes the importance of the law and the judicial system. All of that is lost if a criminal — no matter how trivial the matter — can sit behind their computer at home and simply click and pay. What little respect we have for the legal system will be further eroded.
The official response of the British government seems to miss the point of going to court. It is a solemn occasion. Yet the, according to Corfield, the British official response to the conviction-by-algorithm was:
We have considered the responses in full and think it is possible to prosecute low-level cases via an automatic online conviction procedure and impose an automated, standard penalty in these cases without compromising the principles of our justice system.
“The automatic online conviction procedure will contribute to the government’s aim of delivering a service that is just, proportionate, accessible to all and works better for everyone,” the statement continued, adding that only defendants who choose to plead guilty, offer no mitigating circumstances and who opt into the automated process will be able to be prosecuted in this manner.
What is being missed is the opportunity for fairness, for appeal and for the law to maintain its unique dignity and stature. What will be missed is the humanity in law.
While some may think that humanity in law is an archaic idea in its own right, Schlesinger Conrad does not agree. Most of the firm’s clients are comfortable calling when they need guidance, or help with other problems. Schlesinger Conrad makes a point of understanding the cases from the human perspective.
If you need help with a legal problem, and want to be treated like a human being, please contact the firm. Or, just give a call to 602-812-3661.
A human will answer the phone.
Kira Schlesinger has a Bachelor’s Degree in cultural anthropology from the University of Michigan, Ann Arbor. She did her thesis on the ritual of law.
“Unfettered Discretion” Once was the Touchstone of an Unconstitutionally Vague Law… but that Protection is Gone.
UPDATE: The United States Supreme Court declined to hear the appeal from the Arizona Supreme Court. According to the Arizona Capital Times, the dissenting justice from Arizona, Justice Bales, stated that “the wording of the law — making it a crime to knowingly touch the genitals or anus of a child — without showing some sexual interest leaves too much to chance and too much risk that an overzealous prosecutor could put a parent behind bars.” Further, while a person charged with this crime may prove at trial they had no sexual intent, the law is vague enough that a foster father was charged and tried under it for following his doctor’s orders and checking to see if the child in his care had soiled themselves. Nevertheless, the ruling of the Arizona Supreme Court will stand. Justice Prelander, writing for the majority in Arizona, stated “Criminal code should clearly differentiate between unlawful conduct and innocent, acceptable behavior without unnecessarily sweeping the latter into the former,” But, according the Arizona Capital Times, he went on to state: ““Subject to constitutional constraints … proscribing certain conduct and defining what constitutes a crime and any defense thereto are solely within the purview of the political branches of government, not the courts.”
Justice Bales, writing for the dissent had it right, however, when Justice he stated: ““No one thinks that the legislature really intended to criminalize every knowing or intentional act of touching a child in the prohibited areas,” he wrote. And Bales said reading the law the way the majority suggests means not only that people won’t know what conduct will land them in handcuffs but also fail to “constrain prosecutorial discretion.”
Source: If You Change a Baby’s Diaper in Arizona, You Can Now Be Convicted of Child Molestation
Slate Magazine recently reported on a September 13, 2016 decision by the Arizona Supreme Court. In State v. Holle, the Arizona Supreme Court held that a defendant accused of violating the child molestation law, A.R.S. § 13-1407(E), must prove he or she had no “sexual intent” and therefore, is not guilty of “sexual abuse or child molestation“. As the Court stated, “‘[i]t is a defense to a prosecution’” for sexual abuse or child molestation “that the defendant was not motivated by a sexual interest.”
The problem: The law does not require any “intent”. Child molestation is now, essentially, a strict liability statute. That means that the language of the statute does not include any mens rea or intent. As Slate pointed out, this allows an officer to arrest someone simply for touching their child by giving a bath or changing a diaper. The problems raised by such Arizona legal issues can impact any mom, any dad or any caregiver.
As if this were not a horrible opinion on child molestation, the real problem is that this sort of unfettered discretion is advancing through many criminal statutes across the country. As discussed in other blog entries, California Penal Code § 597.1 allows any officer or animal control agent to arrest someone for animal cruelty if the owner does not provide “proper care” for their dogs. Translation: If an officer with no skill or special knowledge of animal husbandry concocts any half-baked reason to seize your dogs, they may do so citing to Penal Code § 597.1. Your dogs are taken to a shelter, and you then have to pay for (additional) vaccines, boarding and care for your dogs without any opportunity to prove that your dogs were actually just fine at the time of seizure.
The animal cruelty law allows unfettered discretion. This is so because a United States District Court recently ruled that “necessary care” and “proper care” are so universally understood that no reasonable person could be confused by what is required. In one case, however, an administrative hearing officer, whose job title was Director of Housing & Community Action Programs, determined a dog must have water 24 hours a day. The Animal Welfare Act requires water two times a day for a minimum of one hour. A “reasonable person” could opt to follow the federal Animal Welfare Act, and run afoul of a local agent’s opinion that water be provide constantly. This is unfettered discretion. Courts regularly ignore the existing standard that a statute is unconstitutionally vague if it allows “unfettered discretion” to those charged with enforcement. Laws granting unfettered discretion allow officers to arrest just about anyone, for anything.
Another example of how these Arizona legal issues impact our lives is shown in the state’s statute on “Resisting Arrest”. The statute purports to require a mens rea, but the wording of the statute hands over total discretion to the officer:
A.R.S. 13-2508 Resisting Arrest; classification; definition
A person commits resisting arrest by intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, acting under color of such peace officer’s official authority, from effecting an arrest by:
What exactly does “engaging in passive resistance” mean? Is it turning your back? Not holding up your hands out to be handcuffed? Asking why you’re being arrested? There is no clear answer for this. That allows an officer to use this statute to arrest any person, at any time, for almost any reason. These Arizona legal issues may not directly effect you today, but the problem of unfettered discretion is likelyto show up in an Arizona legal issues that you do care about before long. Unfettered discretion is a monster that will only become more insatiable and more difficult to stop.
If you feel you have been unfairly treated by an officer exercising too much discretion, or have questions about any Arizona legal issues, please contact Schlesinger Conrad Law Firm for a free consultation. The firm can be reached during business hours at 602-812-3661.
Arizona Legal Issues: Animal laws in Phoenix, Arizona – 5/31/2016.
You probably were not aware that chaining dogs outside was an Arizona legal issue that is a big problem in Phoenix. Personally, I have never seen a dog chained outside. The scorching heat would make this untenable most of the year in Phoenix. Further, the majority of dog owners in Phoenix value their animals as companions. But apparently the City Council perceived this to be a problem in our city.
The City Council voted to create a new ordinance that would prohibit chaining or “tethering” any dog in a manner that “unreasonably limits the dog’s movement during extreme weather conditions, when the outdoor temperature is below 32 degrees or above 100 degrees Fahrenheit, when a heat advisory has been issued or when a monsoon, hurricane, tropical storm, dust storm or tornado warning has been issued.” So, we now have a solution to a “problem” in Phoenix. Or do we?
As of this date, neither the proposed nor passed ordinance’s text is available on the City of Phoenix’s website. There is one notation, Item 9 from January 14, 2016’s Public Safety and Veterans Subcommittee’s meeting, that states ” Mr. Brown discussed other communities which have developed an ordinance to address the tethering and chaining of dogs.” Mr. Brown apparently then asked for additional time to draft the ordinance. The minutes from that meeting do not reflect the number of incidences in Phoenix where this practice is causing problems.
If the language used in the final ordinance bans only “unreasonably” limiting a dog’s movement, this will be another law that gives unfettered discretion to officers. What may be “reasonable” to the owner of a guard dog, may be unreasonable to the animal control officer.
This parallels problems with other animal control laws. For example, in California, Penal Code § 597.1 states the one is liable for animal cruelty if they fail to provide “proper care.” That term is not defined in the code. In Phoenix, Section 8-2 of the Animal Code states that “no person shall keep a dog within the City limits which is in the habit of barking or howling or disturbing the peace and quiet of any person within the City.” How do we determine if a dog is “in the habit” of “disturbing the peace” of someone else?
A law is void for ambiguity if a statute as “drafted and as construed by state courts, contains no standard for determining
what a suspect has to do in order to satisfy the requirement to provide a “credible and reliable” identification. The statute vests virtually complete discretion in the hands of the police”. Kolender v. Lawson (1983) 461 U.S. 352, 358. Thus, while anyone can understand a law that states no dog shall be tethered if the temperature is over 100 degrees, determining what “unreasonably restricts a dog’s movement” is far less clear. An animal control officer may decide anything less than ten feet of movement is “unreasonable”, while another officer may think twenty feet is required.
if you have been cited by animal control for cruelty or any alleged violation of an ordinance pertaining to your animals, do not wait to contact an attorney. The consequences can be harsh. You could lose your dogs, be convicted of a misdemeanor or worse. Contact the attorney at Schlesinger Conrad Law Firm at 602-812-3661. We’re happy to discuss your case confidentially and at no charge.
Arizona Legal Issue: Voting Rights in Phoenix, Arizona.
With the election heating up, knowing your rights can mean the difference between having a voice, or being drowned out by the court systems and big money players. What happened here does not just raise Arizona legal issues; the same problems are going on nationwide. Still, the problem was very apparent in our state, and was talked about as one of many Arizona legal issues that change what open, fair and free elections mean.
A lawsuit was filed on August 8, 2016, contesting the Arizona debacle that County Recorder Helen Purcell called a presidential preference — primary — election. The suit alleges a variety of wrongdoing from insufficient polling places, to improper registration of voters and failure to count provisional ballots. As stated in the Associated Press, “Maricopa County saw huge lines on Election Day after officials cut the number of polling places and turnout exceeded expectations. But there were issues statewide, with voters complaining they were registered with a party but the rolls showing they were independents and ineligible to vote.”
It is doubtful that this suit will be successful, but there are ways to ensure that your vote is counted. To avoid what happened in Maricopa County, for example, it is important that you register early. Make sure you stay informed about your polling place, and take both your Identification and your voter registration card or receipt with you when you vote.