Lopez | Arizona Capitol Times
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Fri, 14 Oct 2022 17:58:19 +0000
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Lopez | Arizona Capitol Times
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Hobbs and Lake won’t debate despite election commission offering to let Hobbs propose conditions
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Mon, 12 Sep 2022 16:33:18 +0000
Arizona voters won't see a debate between the major gubernatorial hopefuls.
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Voters will not be able to see Katie Hobbs, the Democratic gubernatorial candidate and current Secretary of State, and Republican Kari Lake, the GOP gubernatorial nominee,...
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Court rules state lawmakers are entitled to shield records from public
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Wed, 31 Aug 2022 22:46:53 +0000
State lawmakers are entitled to shield records from public disclosure if they deal in any way with legislative business, the Arizona Supreme Court ruled Wednesday.
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The Arizona Supreme Court ruled Aug. 31 that state lawmakers are entitled to shield records from public disclosure if such information deals in any way with...
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Court expansion brings more cases, less efficiency
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Fri, 23 Oct 2020 16:41:15 +0000
Arizona Supreme Court Chief Justice Robert Brutinel said the addition of two more justices has made the court less efficient. Brutinel’s assessment contradicts Gov. Doug Ducey’s justification in 2016 for […]
The post Court expansion brings more cases, less efficiency first appeared on Arizona Capitol Times.]]>
The Arizona Supreme Court from left are James Beene, Andrew Gould, Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery.
Arizona Supreme Court Chief Justice Robert Brutinel said the addition of two more justices has made the court less efficient.
Doug Ducey
Brutinel’s assessment contradicts Gov. Doug Ducey’s justification in 2016 for signing legislation to expand the court from five to seven justices “. . . will ensure that the court can increase efficiency, hear more cases and issue more opinions.”
Brutinel, a Republican appointed by Gov. Jan Brewer in 2010, told Arizona Capitol Times he believes not only that the court is less efficient than it was with five justices, but that five justices was plenty to handle any increased caseload the bench has seen since.
“[When] five justices take 10 cases in a year, they write 50 opinions in total. When seven justices take 10 cases it’s 70 opinions,” Brutinel said, citing an example of why the court is less efficient.
Brutinel was against the expansion in 2016 and though he likes his coworkers that Ducey added to the bench –– Justices Andrew Gould and John Lopez –– he said the additional justices mean two law clerks per justice, which is six additional people who will look at a case before issuing an opinion.
“I’m not saying it’s a bad thing, but it’s not a more efficient thing,” Brutinel said.
The first time Arizona expanded the court was in 1949 from three to five. The court building at 1501 W. Washington St. was built with the space for seven justice chambers, which was another argument proponents of the expansion used to push the legislation. What that really means, though, is it would not cost taxpayers more money to build those areas.
The expansion does cost roughly $1 million annually.
J.D. Mesnard
The 2016 expansion was politically charged and passed on partisan lines. The bill’s sponsor, Sen. J.D. Mesnard, R-Chandler, who at the time was Speaker of the House, said at the time there was a political component.
“There’s always going to be a political consideration,” Mesnard said in 2016. “And if there were a Democrat on the ninth floor (where the governor’s office is located) that would be a political consideration that I would take into account.”
Democrats accused Republicans and Ducey of trying to pack the court, a term that came up nationally this year as the prospect of a decades-long conservative majority on the U.S. Supreme Court came up following the death of Ruth Bader Ginsburg.
The idea of adding seats to the nine-justice court has gained renewed traction among Democrats, and Democratic Presidential nominee Joe Biden has dodged multiple questions from the media about the proposal. California Sen. Kamala Harris, refused to answer the question during her debate with Vice President Mike Pence.
Harris, however, expressed support for court-packing during her primary bid for president, along with several other progressive candidates
One of Ducey’s justifications for expanding the court did pan out – sort of.
The number of cases filed with the court did increase in the first two years after Ducey appointed Lopez and Gould, but there is no data to attribute the increase to the expansion.
Kory Langhofer
Republican elections attorney Kory Langhofer, who pens a blog dedicated to following the Arizona Supreme Court called SCOAZ Blog, said cases have been on an incline for years leading up to the expansion.
The Supreme Court handles appeals in civil and criminal matters, death penalty appeals, fast-tracked elections appeals, State Bar matters, Industrial Commission appeals, and certain urgent matters that are allowed to skip the Court of Appeals.
The court only accepts a handful of cases a year for review; the standard for review is if there’s a split on an issue between the two Arizona Court of Appeals divisions, if the justices think case law should be reconsidered or if the issue at hand has statewide importance.
In the five years preceding the expansion, the court saw an average of 1,050 filed cases and terminated an average of 1,049 per year.
Terminations means any resolved matter. A Supreme Court spokesman said not all cases filed in one fiscal year will be terminated in the same year so some years will have more terminations than cases filed.
In Fiscal Years 2017 and 2018, the court saw an average of 1,244 filed cases and terminated 1,168. Then in 2019, those numbers changed a lot. The court saw roughly 200 fewer cases than 2018 and terminated more and filed cases began to rise again in 2020. The same trend exists with written opinions, with 2019 being the year with the lowest number of opinions in a decade.
Patrick Ptak, Ducey’s spokesman, said the 2019 numbers were low because of the “high turnover” on the bench. Brutinel said that’s possible, but did not think there was one area they could point to as to why there were fewer cases and opinions.
Scott Bales, the previous chief justice who retired from the bench in 2019, said the decrease was not an active decision from the court to hear fewer cases or write fewer opinions.
The Arizona Supreme Court often follows a practice of calling up a judge from the Court of Appeals or bringing a justice back from retirement to temporarily fill a seat that is empty because of a vacancy or a recusal.
Bales, the last Democrat to serve on the court, was one of the most ardent critics of the expansion and told Arizona Capitol Times he still does not believe the expansion made the court more efficient, as Ducey claimed it would.
“Additional justices are not required by the court’s caseload,” he wrote in a 2016 letter urging Ducey to veto the bill. “And an expansion of the court (whatever people may otherwise think of its merits) is not warranted when other court-related needs are underfunded.”
Ducey signed the bill anyway, but he “took into account” what Bales had to say, according to his staff.
“No question that five justices would be able to handle the workload,” Brutinel said in an October 14 interview.
Langhofer supports the expanded court and actually views more terminations as a positive factor of the seven-member bench, but also concedes that the court operates at a slower pace now than it did before the expansion.
“You’ve got more people that have to review [the cases],” he said, adding that it obviously takes longer to get seven people’s response than five.
Brutinel and Bales said one thing that did not change with the increase is the number of justices necessary to accept a case – three – rather than increasing it to four of seven.
“Certainly it has made it easier to take cases, but the reality is that if someone feels strongly about a case then most of the time you can convince two others to go along. Convincing three would be more challenging,” Brutinel said.
Between 2012 and 2016 the court issued an average of 36 written opinions with nine of those involving election appeals, which do not have to include a full panel of justices. The following two years saw an uptick again of 43 and 46 opinions, respectively with seven election appeals in 2018. That number dropped in 2019 to 26 total opinions (including the longest duration for a decision at 237 days), and through 10 months this year, it has issued 48 opinions with 13 from election appeals.
Langhofer through his analysis of the court did shoot down one of the main criticisms of expanding.
He said that the more conservative court “has not guaranteed the outcomes preferred by the Republican Party.”
He pointed to two recent rulings, one in the appeal of Republican Arizona Corporation Commissioner Kim Owens losing her candidacy over a petition challenge where the lower court ruled in favor of her, and the second also from 2020 with the Supreme Court unanimously ruling in favor of the Invest in Education ballot measure, a proposed tax on the state’s highest earners.
Even so, the court now lacks in political party breakdown with six belonging to the Republican Party, and one – Clint Bolick – a conservative independent.The post Court expansion brings more cases, less efficiency first appeared on Arizona Capitol Times.]]>
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Ducey selects Lopez, Gould as new Supreme Court justices
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Mon, 28 Nov 2016 20:30:55 +0000
Gov. Doug Ducey selected two new justices for the Arizona Supreme Court Monday, including the first Hispanic to serve on the state’s top bench.
The post Ducey selects Lopez, Gould as new Supreme Court justices first appeared on Arizona Capitol Times.]]>
Gov. Doug Ducey selected two new justices for the Arizona Supreme Court Monday, including the first Hispanic to serve on the state’s top bench.
The governor chose John Lopez IV, 47, who is currently the state’s solicitor general. He heads the division inside the attorney general’s office charged with defending the state in litigation.
John R. Lopez IV (Photo courtesy attorney general’s office)
Lopez also has been called upon to issue legal opinions in cases where Attorney General Mark Brnovich has had a conflict of interest.
Also tapped for the bench is Andrew Gould, 54, currently a judge on the state Court of Appeals.
Both are Republicans like Ducey. Gould was formerly a Superior Court judge in Yuma County.
In an exclusive interview with Capitol Media Services, the governor praised all seven who were nominated by the Commission on Appellate Court Appointments for the two new vacancies created earlier this year when the legislature voted to expand the court to seven. And the governor said he interviewed all nominees, including the Democrat and independent.
But Ducey, who said the interview is the prime factor in his decision, said these two stood out in being the closest to what he wants from the third branch of government.
“I’m looking to someone who has a fidelity to our founding documents: the Declaration (of Independence), the Constitution and the state constitution, has a love of the law and an understanding of the separation of powers,” the governor explained. “I made the very difficult decision to pick who I thought were the two best.”
Andrew Gould (Photo courtesy Arizona Court of Appeals)
But the governor made it clear he’s interested in more than general questions about judicial philosophy.
“I want to know their opinion on certain cases,” said Ducey, who also had general counsel Mike Liburdi in on the interviews.
Ducey would not disclose which prior rulings he asks about to gauge the views of applicants, saying he wants to keep that under wraps so as not to tip off others who will be applying for judicial vacancies. That most immediately will mean the process to replace Gould on the Court of Appeals.
And the governor, who is opposed to abortion, specifically declined to say whether he asked any of the applicants about their views on the legal issues associated with the practice.
That could become an important issue in the next few years with President-elect Donald Trump vowing he will appoint justices to the U.S. Supreme Court who are opposed to abortion.
That opens the door to overturning the historic ruling of Roe v. Wade when the nation’s high court concluded women have a constitutional right to terminate a pregnancy in the first trimester. Subsequent court rulings have expanded on that right.
If Roe v. Wade is overturned, that leaves the question of abortion to each state, as it was before the 1973 ruling. In Arizona, elective abortion was illegal at the time.
What could make a difference is that the Arizona Constitution has something not spelled out in its federal counterpart: a specific right to privacy. And while that provision existed even when abortion was illegal in Arizona, there is an argument that right to privacy could form the basis for keeping the practice legal even if Roe v. Wade is overturned.
Ducey, however, made it clear that he’s not interested in jurists who are looking for ways to overturn what state lawmakers have approved.
“The litmus test is that people want to uphold the law, that they want to be a judge and not a legislator,” the governor said.
“I look for judges that want to interpret the law as written,” Ducey continued, espousing what some call “texturalism” or “originalism.”
“But I don’t think that judges should be writing the law, rewriting the law or fixing the law,” he said. “That is the legislature’s job.”
The governor, who previously appointed political independent Clint Bolick to the high court, is getting to name the two Republicans because of a law he signed earlier this year expanding the bench. He said a larger court will mean the ability to take on more cases as opposed to simply affirming appellate court rulings by refusing to consider them.
“I also think it right-sizes the court to states of equal size and equal population,” the governor said.
Ducey said the chance to name the first Hispanic to the Arizona Supreme Court did not figure in his decision. “These selections were made on the merits,” the governor said.
“His interview was excellent,” Ducey said, saying Lopez had “incredible references and recommendations.”
Lopez helped out the governor at least indirectly earlier this year when he issued an opinion declining to block the release of funds for Proposition 123. That voter-approved measure crafted by Ducey earmarks $3.5 billion for schools in the coming decade, including $2.2 billion in extra withdrawals from the state land trust account.
State Treasurer Jeff DeWit, a foe of the plan, had raised legal questions about the distribution. But Lopez declined to intercede, saying it would be improper because of a pending federal court lawsuit.
Lopez also told members of the state Board of Investment they face no personal liability for going along with what voters approve, even if a court were to subsequently decide the move was illegal.
He also is involved in an effort to have the Arizona Supreme Court overturn an appellate court ruling which voided state law denying bail to accused sex offenders. The majority ruling in that case concluded that the constitution allows people to be kept in jail pending a trial only if prosecutors can show that no conditions of release can be imposed to ensure protection of others.
That ruling was not unanimous, with Gould filing a dissent.
He said the express purpose of the statute and its companion state constitutional provision “is to protect victims and the community.” That, he said, makes its purpose “regulatory, not punitive.”
Gould also authored a unanimous appellate court ruling which said Arizonans can sue those who have harmed them, even in cases in which they had voluntarily agreed to arbitrate instead. He wrote that arbitration agreements that are a financial burden on individuals are legally “unconscionable” and therefore unenforceable.
That ruling, believed to be the first of its kind in the state, was a major victory for those who may not have thousands of dollars to fight a claim through arbitration. Instead, it permitted them to retain an attorney who is willing to handle the case on a fee-contingent basis and be paid only if he or she wins.
It also was a setback for many businesses that now routinely put boilerplate language into contracts requiring clients and customers to submit to arbitration. But it is most likely to affect the most complex and costly claims like medical malpractice.The post Ducey selects Lopez, Gould as new Supreme Court justices first appeared on Arizona Capitol Times.]]>
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Arizona man wants execution delay until after Brewer’s gone
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Wed, 20 Jun 2012 14:21:37 +0000
Attorneys for a death-row inmate set to be put to death in Arizona next week want the execution delayed until the state has a new governor, arguing in a Tuesday filing that Gov. Jan Brewer appointed "political cronies" to a clemency board in an unconstitutional, closed-door process.
The post Arizona man wants execution delay until after Brewer’s gone first appeared on Arizona Capitol Times.]]>
Gov. Jan Brewer (Photo by Ryan Cook/RJ Cook Photography)
PHOENIX (AP) — Attorneys for a death-row inmate set to be put to death in Arizona next week want the execution delayed until the state has a new governor, arguing in a Tuesday filing that Gov. Jan Brewer appointed “political cronies” to a clemency board in an unconstitutional, closed-door process.
In their filing in the Arizona Supreme Court, defense attorneys for death-row inmate Samuel Villegas Lopez argue that he can’t receive a fair hearing with the state’s clemency board, often an inmate’s last chance for mercy before an execution.
Brewer overhauled the board in April, a move that her spokesman Matt Benson said at the time was designed to “bring fresh insight and fresh blood” to the board.
“The Arizona Supreme Court has already found these allegations to be without merit. The latest filing is more of the same,” Benson said in statement Tuesday evening. “Governor Brewer appropriately nominated qualified individuals to the Board of Executive Clemency, including a Democrat, and they were properly confirmed by the Arizona Senate. The governor and the Board of Executive Clemency have the right to defend themselves when named in a lawsuit in which spurious and sanctionable allegations are asserted.”
In their filing, Lopez’s attorneys argued that the new board members are “political cronies” appointed to ensure that they never vote for executions to be delayed or overturned.
The attorneys also argue that the selection committee for the new board members questioned potential members about how they would vote on controversial or high-profile cases in interviews that were closed to the public in violation of open-meetings laws.
“While the Governor may be free to appoint her political cronies to Arizona boards and commissions, and while political patronage may be an accepted part of Arizona government, the law at least requires that those actions be known to the public,” the filing said.
“Offensive to any reasonable notion of fairness, this denial of access to the clemency process would not have occurred in the sunlight of public scrutiny,” they wrote. “Mr. Lopez must now plead for mercy before a board constituted of a majority of members selected by that process.”
Lopez’s clemency hearing is set for Friday.
His attorneys also argue that statements made by Benson and newly appointed board Chairman Jesse Hernandez to reporters display clear bias against Lopez and a prejudgment of his request for mercy.
For instance, Benson told The Associated Press last month that defense attorneys were “attempting to further delay justice for the heinous crimes committed by their client 25 years ago.”
“Throwing together a host of trumped-up charges against a citizen board does not change that fact,” he said.
Hernandez has told the AP that the attorneys were “grandstanding” in filing a lawsuit against Brewer and the board in Maricopa County Superior Court over the new board members.
Hernandez did not immediately respond to a request for comment Tuesday.
The Arizona Supreme Court already delayed Lopez’s execution once, on May 15, to give the new clemency board members time to undergo four weeks of training before they held a hearing about Lopez’s fate.
The court granted the delay on the grounds that Lopez was denied a fair chance for clemency because a majority of the board members had not undergone the training. The court rescheduled the May 16 execution for June 27.
Lopez faces a lethal injection at a state prison in Florence for the 1986 murder of Estefana Holmes. The Phoenix woman was raped, robbed and stabbed in what authorities described as a “terrible and prolonged struggle.”The post Arizona man wants execution delay until after Brewer’s gone first appeared on Arizona Capitol Times.]]>
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Judge: ‘Strong likelihood’ state didn’t follow law in execution case
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Tue, 15 May 2012 18:04:51 +0000
Death-row inmate Samuel Lopez has asked the Arizona Supreme Court to delay his scheduled execution on Wednesday after a lower-court found there is a good chance the state didn’t follow the law in choosing three new members to the Board of Executive Clemency.
The post Judge: ‘Strong likelihood’ state didn’t follow law in execution case first appeared on Arizona Capitol Times.]]>
Arizona Board of Executive Clemency members (from right) Ellen Kirschbaum, Executive Director Jesse Hernandez, Jack LaSota, Brian Livingston and Melvin Thomas. (Photo by Josh Coddington/Arizona Capitol Times)
Death-row inmate Samuel Lopez has asked the Arizona Supreme Court to delay his scheduled execution on Wednesday after a lower-court found there is a good chance the state didn’t follow the law in choosing three new members to the Board of Executive Clemency.
“As far as we are aware, if this court fails to grant a stay, Mr. Lopez will be the first inmate executed in Arizona without the opportunity to have a clemency hearing,” Lopez attorney Julie Hall wrote in her motion to the high court.
Hall asked the high court to give Maricopa County Superior Court Judge Joseph Kreamer more time to finish sorting out claims they made in a lawsuit against Gov. Jan Brewer and the clemency board.
Kreamer held oral arguments Monday and found that Lopez’s attorneys have “established a strong likelihood of success on his claim that the respondents failed to comply with the minimal requirements of the law, and therefore his due process rights were violated because he was not afforded a (clemency) hearing in a substantial sense.”
But the judge conceded that only the Supreme Court can stop an execution.
Kreamer set an evidentiary hearing on the matter for July 16. He believes Lopez might have a case on questions of whether the newest members of the board are sufficiently trained and whether new Chairman Jesse Hernandez is qualified, but he needs to hold a hearing to gather more information.
Kent Cattani, who heads the criminal appeals for the Attorney General, said the state will oppose any requests for a delay in the execution, and if Lopez is executed Wednesday the state will try to stop the evidentiary hearing in July on the basis that it would be moot.
Lopez’s attorneys filed their suit May 9, alleging that there was a host of violations of the Open Meetings Law and in the appointment process of Hernandez, Brian Livingston and Melvin Thomas, all of whom were confirmed April 18 and 19. Those violations effectively made their appointments null and void, Hall said.
Kreamer rejected most of the claims, but he honed in on claims that the new members weren’t sufficiently trained as required by statute and he also questioned whether Hernandez met the qualification that he “demonstrated an interest in the correctional system.”
Arizona law requires new members to undergo four weeks of training, but it is chronologically impossible for that to have occurred before Lopez’s May 7 clemency hearing.
His attorneys walked out of the hearing without presenting a case after Hernandez said the full five-member board was going to hear it.
The board set another hearing for today, but that has been cancelled.
Cattani argued that any lack of training doesn’t meet the standard for a clemency board to violate someone’s rights.
Cattani said case law says that when it comes to clemency boards, any violation has to be so egregious as to “shock the conscience” because a clemency hearing isn’t constitutionally guaranteed.
Solicitor General David Cole argued that Hernandez demonstrated his interest in the correctional system by applying for the board, an argument Kreamer rejected.
“There’s got to be some demonstrated interest,” Kreamer said.
Hernandez was chosen as chairman to replace Duane Belcher, who had served on the board since 1992. Hernandez has been a self-employed insurance agent and most recently worked for Congressman David Schweikert.
Lopez was convicted in the 1986 rape and murder of Estefana Holmes, 59, who was stabbed 26 times and her throat slit. His attorneys were also arguing on his behalf in the U.S. 9th Circuit Court of Appeals Monday, saying that his defense attorneys were incompetent at the trial level.The post Judge: ‘Strong likelihood’ state didn’t follow law in execution case first appeared on Arizona Capitol Times.]]>
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Request to block execution cites clemency issue
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Tue, 15 May 2012 16:03:56 +0000
An Arizona death-row inmate is asking the state Supreme Court to block his execution Wednesday so a lower court can consider whether the inmate's rights to a fair clemency hearing have been violated.
The post Request to block execution cites clemency issue first appeared on Arizona Capitol Times.]]>
An Arizona death-row inmate is asking the state Supreme Court to block his execution Wednesday so a lower court can consider whether the inmate’s rights to a fair clemency hearing have been violated.
Attorneys for inmate Samuel Villegas Lopez cite a trial judge’s ruling Monday that Lopez may not have received a fair shot at a clemency hearing because of questions of whether the state clemency board is legally constituted.
The judge scheduled a July hearing on whether newly appointed board members needed to have required training before hearing clemency cases and whether one had the required qualification of demonstrating an interest in corrections before being appointed.
Lopez is scheduled to be executed at a state prison in Florence for the 1986 murder of 59-year-old Estefana Holmes of Phoenix.The post Request to block execution cites clemency issue first appeared on Arizona Capitol Times.]]>
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Arizona death-row inmate’s lawsuit heads to court
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Mon, 14 May 2012 22:14:20 +0000
Lawyers for an Arizona death-row inmate plan to argue the state's clemency process is flawed as they make last-minute bids to stop his execution.
The post Arizona death-row inmate’s lawsuit heads to court first appeared on Arizona Capitol Times.]]>
This undated photo provided by the Arizona Department of Corrections shows death-row inmate Samuel Villegas Lopez. Lopez's attorneys are fighting his upcoming execution, arguing in one filing Tuesday, May 1, 2012 that three newly appointed clemency board members are unprepared to consider his arguments for mercy and in another that the state Department of Corrections is violating his constitutional rights. (AP Photo/Arizona Department of Corrections)
Lawyers for an Arizona death-row inmate plan to argue the state’s clemency process is flawed as they make last-minute bids to stop his execution.
Attorneys for Samuel Villegas Lopez contend the execution should be delayed so new members of the state’s clemency board can be appointed. They are set to make their case Monday in Maricopa County Superior Court.
Separate proceedings will be held Monday before the U.S. 9th Circuit Court of Appeals in San Francisco, where lawyers for Lopez will challenge the state’s execution procedures and contend he was denied effective legal representation.
Lopez is scheduled to be executed Wednesday at a state prison in Florence for the 1986 murder of 59-year-old Estefana Holmes. The Phoenix woman was raped, robbed and stabbed in what court papers described as a “terrible and prolonged struggle.”
Lopez would be the fourth person executed by Arizona this year.
His lawyers say Lopez deserves clemency because the trial judge was never told he had brain damage and a difficult childhood.
The Board of Executive Clemency took no action during a May 7 hearing for Lopez when a lawyer for the inmate walked out after challenging the validity of the proceeding.
A lawsuit filed on behalf of Lopez two days later called the hearing a sham resulting from a revamping of the board’s makeup to avoid having clemency recommendations in high-profile cases land on the desk of Gov. Jan Brewer.
The lawsuit asked Superior Court Judge Joseph Kraemer to rule that Brewer’s recent appointments of three of the five members of the board were invalid. The suit cited alleged open meeting law violations by a committee that screen applicants.
“The three board members, rendered null and void by state statute, were equivalent to three empty chairs in the room,” Lopez’s attorneys wrote in a filing in the case.
As a result, Lopez has been denied his due-process right to have the board consider recommending that Brewer commute his death sentence to life in prison or grant him a reprieve delaying the execution, the lawsuit contends.
In court papers filed on behalf of Brewer and other state officials, state Solicitor General David Cole said clemency proceedings are legally a “matter of grace” that only entitle inmates to minimal due process.
On behalf of the state, Attorney General Kent Cattani also urged Kreamer to reject Lopez’s requests and said the inmate’s lawyers had an opportunity to present his case but chose not to do so.
Clemency is a political process decided by elected officials that is not subject to judicial review, Cattani said.The post Arizona death-row inmate’s lawsuit heads to court first appeared on Arizona Capitol Times.]]>
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