Possible Changes Coming For Challenges To State Agency Decisions

Possible Changes Coming For Challenges To State Agency Decisions

By Terri Jo Neff |

The Arizona Supreme Court will issue a ruling in the next few months that could allow complaints to be resolved and enforced by state agencies even if the agency did not have authority to impose a penalty or sanction in the first place.

On Nov. 15, the justices conducted oral arguments in a dispute between Legacy Foundation Action Fund and the Arizona Citizens Clean Elections Commission over nearly $100,000 in penalties imposed in 2015 against Action Fund for alleged violations related to election finance reports and political ads.

The Legacy Foundation Action Fund unsuccessfully challenged the Clean Elections Commission’s authority during agency-level proceedings, including an argument that the Commission lacked subject matter jurisdiction. Subject matter jurisdiction is a legal requirement that a given court or government agency has the authority to hear the matter brought before it.

Attorneys for the Action Fund did not timely appeal the issue, waiting instead until 2018 to revive the jurisdictional issue when the Commission sought to collect the penalty.

Earlier this year, the Arizona Court of Appeals issued a split opinion which held in part that the “need for finality” with a decision of an Arizona administrative agency can be more important than whether the agency actually had authority to issue the decision in the first place.

The opinion also noted a judgment by a state-chartered agency such as the Clean Elections Commission is not a legal nullity if the party failed to raise the jurisdictional issue in a timely appeal.

However, a strongly worded dissenting opinion by Judge Cynthia Bailey noted that while Legacy Foundation Action Fund forfeited several appellate rights by not filing its appeal on time, “it did not, and could not, forfeit” its right to challenge the Commission’s subject-matter jurisdiction.

“Subject-matter jurisdiction can neither be waived nor conferred by stipulation. A court simply cannot hear a case over which it has no jurisdiction,” Bailey wrote, adding that “under Arizona statutes and rules, the potential injustice when an agency acts beyond its statutory authority outweighs any interest in finality and judicial economy.”

Bailey’s dissent opinion closely aligns with arguments put forth in an amicus (friend-of-the-court) brief filed with the Arizona Supreme Court by the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.

The Goldwater Institute is a nonpartisan public policy and research foundation whose priorities include the defense of individual rights against Arizona’s various state agencies which often operate outside the boundaries of evidentiary and procedural protections.

In the brief, attorney Timothy Sandefur cites prior court decisions in Arizona—some dating back to the 1920s—which have led to established case law that a judgment issued by a court, tribunal, or agency that lacks jurisdiction is void ab initio, or legally null.

“This has always been the rule in Arizona…and it should not be altered now,” Sandefur wrote, pointing out that Action Fund’s only opportunity to have its jurisdictional challenge heard was by the Commission itself, “which is not a judicial body, but a party to this dispute.”

And to elevate finality in litigation over validity as the court of appeals did “is to elevate form over substance and – alarmingly – efficiency over legitimacy,” the brief states.

Sandefur urged the Arizona Supreme Court justices to reject establishing a new legal standard for jurisdiction, especially in light of the burden it will create for people trying to defend themselves when agencies overstep their bounds, Sandefur wrote.

That burden “is likely to fall hardest on unsophisticated and unrepresented parties, particularly small business owners, workers, and entrepreneurs, who are often subjected to enforcement by regulatory agencies and often lack the wherewithal to obtain legal representation,” he added.

A decision from the Arizona Supreme Court is expected in Spring 2023.

Deadline Closer For New ID Requirements To Travel By Air Or Enter DOD Facilities

Deadline Closer For New ID Requirements To Travel By Air Or Enter DOD Facilities

By Terri Jo Neff |

Arizonans have less than five months to obtain a federally-compliant form of identification needed to clear TSA airport security checkpoints or access certain Department of Defense (DOD) installations.

Beginning on May 3, 2023, an accepted identification credential under the REAL ID Act such as the Arizona Travel ID or a valid passport will be required before boarding any domestic flight. Arizonans risk being denied boarding because the standard Arizona driver license will no longer be accepted by the TSA, according to the Arizona Department of Transportation – Motor Vehicle Division (MVD).

As a result, MVD is urging people to upgrade their driver’s licenses or state identification cards to the Arizona Travel ID now rather than wait. The credential, which is distinguished on Arizona issued identification by a star in the upper right corner, costs $25.   

Because the Arizona Travel ID meets more stringent identification standards than a typical driver’s license, applicants will need to provide extra documentation This includes:

  • Proof of identity: a birth certificate or US passport
  • Social Security Number (just the number, not the card)
  • Two documents proving Arizona residency: i.e., rental or bank statements, credit card or cell phone bills with your name and current Arizona address)

The REAL ID Act of 2005 put into place a recommendation by the 9/11 Commission for the federal government to set minimum standards for the issuance of sources of identification, such as driver’s licenses. Deadlines for compliance have been extended numerous times in recent years, but requirements will now be enforced starting in May.

The Act also prohibits some federal agencies from accepting driver’s licenses and identification cards in certain situations if the issuing state does not meet the Act’s minimum standards. Situations requiring a compliant identification include domestic flights and entrance to DOD-controlled facilities and installations.

Current Arizona residents who have an Arizona-issued driver’s license or identification card can make an appointment for the Arizona Travel ID card at AZ MVD Now

TSA does not require children under age 18 to provide REAL ID credentialed identification when traveling within the U.S. if accompanied by an adult companion who has compliant identification.

REAL ID cards are not sufficient identification for border crossings or other travel situations which require a visa, passport, or passport card. Learn more at azdot.gov/TravelID

White House Seeks Dismissal Of Ducey Lawsuit Over Authority To Protect Border

White House Seeks Dismissal Of Ducey Lawsuit Over Authority To Protect Border

By Terri Jo Neff |

Several federal government defendants have filed a motion to dismiss the lawsuit recently filed by Gov. Doug Ducey in his attempt to determine who has jurisdiction over land near the border within the State of Arizona.

On Wednesday, the U.S. Forest Service and its Chief Randy Moore, the U.S. Bureau of Reclamation and its Commissioner Camille Calimlim, and U.S. Secretary of Agriculture Thomas J. Vilsack argued in the motion that Ducey’s actions on U.S. lands “directly conflict” with numerous federal laws.

The motion to dismiss also argues that Arizona’s concurrent jurisdiction to land at the border does not convey a right for Ducey to occupy and use federal lands without federal authority. As a result, the State of Arizona must yield to the United States’ plenary authority over the lands, the motion argues.

Ducey will have an opportunity to respond to the motion to dismiss, after which U.S. District Senior Judge David Campbell will likely hold oral arguments in early 2023.

Also on Wednesday, Campbell granted the Center for Biological Diversity permissive intervention, finding the group has defenses to Ducey’s lawsuit “that share with the main action a common question of law or fact — whether the federal government may act with respect to the border lands of Arizona, including in the enforcement of federal environmental statutes.”

However, Campbell issued a warning to attorneys for the Center that the purpose of granting intervenor status “is not to convert this case into an environmental enforcement action or launch into broad ranging discovery on environmental issues.”

Instead, the purposed is to enable Intervenor to provide input on the claims and issues raised by Ducey. The judge further noted he will hold the Center “to its commitment not to unduly complicate this case, delay the proceedings, inject irrelevant issues, or repeat arguments made by the federal defendants.”

The Center has until Dec. 2 to file an answer in the case.

Ducey filed the six-claim lawsuit in October in an attempt to have the U.S. District Court determine important questions of law regarding jurisdiction over land near the border within the State of Arizona and the state’s own interests in protecting itself in the face of the crisis brought on by countless migrants illegally crossing unsecured areas of the border without action by the federal government.

The inaction of the Biden administration has resulted in “a mix of drug, crime, and humanitarian issues the State has never experienced at such a significant magnitude,” according to Ducey’s lawsuit.

Before filing the lawsuit, Arizona officials pleaded many time with the Biden administration to act, “but such pleas have been either ignored, dismissed, or unreasonably delayed,” the lawsuit notes. “Rather than cooperate and work together with Arizona, the federal government has taken a bureaucratic and adversarial role.”

Ducey responded to this inaction by directing that some gaps in the border wall be temporarily filled with double-stacked storage containers that will help control movement along the border.

The move got the attention of the White House, which now claims Ducey and the State do not have authority to undertake these types of protective actions. The six-claim lawsuit seeks answers to the authority of a governor to issue a state of emergency to protect the lives and welfare of Arizona citizens and their property.

In response to the lawsuit, the Center filed a motion earlier this month seeking to intervene in the case as a defendant along with the named federal defendants.

The Center contends the temporary barriers put into place by the State will block animal migratory paths as well as streams and washes. It also claims the temporary barrier effort will “trash the Sonoran Desert and public lands” while doing nothing “to prevent people or drugs from crossing the border.”

But the Center also alleges Ducey’s border barrier project is “part of a larger strategy of ongoing border militarization” that ignores damage to “human rights, civil liberties, native lands, local businesses, and international relations.”

Ducey opposed the intervention effort by the Center, while the federal defendants took no position on intervention, except that it be a permissive and not by-right status which can be discontinued by the Court if deemed necessary.

Justices Could Decide If Residents Must Be Harmed Before Suing To Protect Against Government Threats

Justices Could Decide If Residents Must Be Harmed Before Suing To Protect Against Government Threats

By Terri Jo Neff |

If government officials threaten to force you from your home because of a zoning violation, should you be able to seek a court order blocking the forced removal? Or must you wait until you are actually homeless to fight back?

That is a question the Arizona Supreme Court could consider next year, in a case out of Sierra Vista that has garnered the attention of the Goldwater Institute and private property advocates across the state.

Among the plaintiffs are several longtime city residents of a mobile home park who filed a lawsuit in early 2021 arguing that city zoning officials should not be allowed to force them to move the recreational vehicles (RVs) they live in and that anti-RV ordinances violate their constitutional rights.

A Cochise County judge and the Arizona Court of Appeals ruled there is nothing that can be done in advance to stop the city from enforcing the ordinance. The lawsuit can only proceed if the city actually moves forward with making the residents leave, according to the court rulings.

The Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation took issue with the city’s position as well as the legal reasoning of the judge and appellate court. The organization has filed an amicus (friend-of-the-court) brief asking the Arizona Supreme Court to hear the case which the RVers are appealing.

Timothy Sandefur, attorney for the Institute, notes that prospective injunctive or declaratory relief against a threatened future unconstitutional government act “is a routine procedure.” As such, the amicus brief asks the justices to order the requested injunction to protect the residents.

“This case is like a hypothetical situation in which a plaintiff files a lawsuit for an injunction to prevent a defendant from converting her personal property, or building a factory that will pollute her land, and the superior court tells her the case is unripe because no theft or pollution has yet occurred—before adding, ‘come back after your property has been stolen or ruined,’” Sandefur wrote.

Under city zoning definitions, RVs are considered temporary shelters that are not allowed as permanent residences in a manufactured home subdivision. RVs are, however, permitted as permanent residences in up to 30 percent of the total spaces in a manufactured home park.

The 160-lot Cloud 9 property involved in the dispute is considered a manufactured home subdivision despite being called a mobile home park for decades. In July 2020, a notice of non-compliance gave several residents, including Amanda Root, 30 days to remove their RVs despite the fact most had lived at Cloud 9 for years and did not have funds to move elsewhere.

The city agreed to take no action on the zoning order while attorneys for the residents and the city attempted to resolve the matter. But in February 2021, the city council rejected a proposed amendment which would have allowed Root and the other impacted residents to continue living in RVs at their current locations.

A lawsuit was filed a short time later seeking an injunction preventing the city from enforcing any evictions while the case was litigated. The city’s twofold argument contended the restrictive ordinances related to RVs are constitutional and that there is no legal basis for a court injunction at that time.

Judge David Thorn of the Cochise County Superior Court denied the injunction, pointing out there was no “injury” caused by the threats of enforcement. The Arizona Court of Appeals also passed on hearing the case due to no showing of actual harm, although the appellate court noted there could be harm in the future.

The Arizona Supreme Court will decide in early 2023 whether to hear the case or to leave in place Thorn’s decision that nothing can be done until Sierra Vista officials try to enforce the zoning violations.

Arizona Company Wants To Create Reliable Marijuana Breath Test

Arizona Company Wants To Create Reliable Marijuana Breath Test

By Terri Jo Neff |

With marijuana use now legal in some manner in the majority of states, attention is turning to how to reliably determine if a driver—or employee or care giver—is under the influence of THC, the chemical in cannabis responsible for having a psychological effect on the brain.

Phoenix-based ElectraTect is gaining worldwide attention for its effort to develop a THC breath analyzer tool comparable to the breathalyzer tests routinely used by law enforcement agencies and courts to determine whether someone is impaired due to alcohol consumption.

The need for a quick and reliable THC testing mechanism has come under growing attention in recent years in response to insurance and public health studies showing the increased likelihood that marijuana impairment is a factor in injury accidents, on the road, in the workplace, and in the home.

The problem, according to cannabis experts, is that traditional THC tests utilizing blood, urine, or saliva are expensive and can provide positive results days after marijuana use and long after any impairment. Yet scientists also know THC only stays on a person’s breath for a few hours after use, generally falling in line with the usual timeframe of peak impairment.

Which led Dr. Evan Darzi and Neil K. Gang, Ph.D., to found ElectraTect in 2020 with support from UCLA where Gang serves as Chair for the Department of Chemistry and Biochemisty. Several company employees are graduates of Arizona State University, where Darzi studies.

That same year, Gang and Darzi revealed a patented electrochemical oxidation process which measures the concentration of THC molecules in a breath sample. Then earlier this year, the company went public with the results of a study of its device published in the journal Organic Letters.

The study pointed to the “need for a fair forensic tool capable of detecting THC in the short window of impairment.”

ElectraTect is now testing a cannabinoid fuel cell designed to detect the amount of THC recently introduced into a person’s system. The technology could ultimately lead to the development of a cost-effective, portable marijuana breathalyzer.

Yet the company’s founders are motivated by more than the science. They recognize the critical need for more research into marijuana impairment in order to ensure there can be a fair and objective testing method of impairment to prevent subjective determinations which can lead to unwarranted criminal charges or civil liability.

“In states where marijuana has been decriminalized or legalized, traditional testing can still lead to fines, imprisonment, or loss of employment, even if you are not impaired at the time of testing,” Darzi recently noted.

The marijuana breathalyzer technology could also be utilized for a marijuana ignition interlock system, much like judges across America require for convicted drunk drivers who want their driving privileges restored. It is one reason Intoxalock, a leader in the alcohol ignition interlock industry, has become a strategic partner and investor in the startup.