What Exactly is That Rule About Unpublished Decisions and Can’t We Cite Them Now?

For writers of any legal briefs, there is hardly anything more frustrating than finally finding a case on point, in our jurisdiction, with a “correct” holding to support our argument, but unpublished.¹ More than 85% of the decisions in the 9th Circuit are unpublished. For the fiscal year 2017, in Division One of the Arizona Court of Appeals, a total of 621 civil cases were terminated, with only 69 (11%) by published opinion.²

Federal courts have allowed citation of unpublished decisions since 2007. Only those unpublished decisions issued after January 1, 2007 may be cited. See Rule 32.1, Federal Rules of Appellate Procedure. In Arizona, the Rules changed effective January 1, 2015, allowing citation to unpublished decisions under certain circumstances. The Supreme Court notes on its website that the amendment allowing citation to memorandum decisions align Arizona with federal courts and other state courts that have ended their bans on citation to unpublished decisions. It appears that some of our colleagues find the current rule somewhat confusing and others are outright misusing it.

To briefly review the underpinnings of the discussion, based on Arizona Rules: An opinion is a written disposition of a matter, intended for publication by an appellate court. A memorandum decision is a written disposition of a matter not intended for publication. An order is a disposition of a matter before the court other than by opinion or memorandum decision (for example, an order dismissing the appeal for lack of jurisdiction). See Rule 111, Rules of the Supreme Court. Arizona law requires a written opinion when the majority of the judges determine that it (1) establishes, alters, modifies or clarifies a rule of law, or (2) calls attention to a rule of law that appears to have been generally overlooked, or (3) criticizes existing law, or (4) involves a legal or factual issue of unique interest or substantial public importance.

But some decisions the appellate courts choose not to publish really do clarify or establish a rule of law that practitioners regularly rely on, or squarely set forth a holding in a way that no published decision does. In that event, practitioners sometimes want to cite an unpublished decision but are hesitant to do so, because they have firmly in mind the rules from law school prohibiting citation to unpublished decisions. Other practitioners heard “something about now we can cite unpublished decisions,” and will do so with no reference to or compliance with actual rule.

This is what you need to remember: Even after the rule change in 2015, memorandum decisions in Arizona are not precedent. Memorandum decisions may be cited only under certain circumstances: 1) to establish claim preclusion, issue preclusion, or law of the case, (2) to assist the appellate court in deciding whether to issue a published opinion, grant a motion for reconsideration, or grant a petition for review, or (3) for persuasive value (not precedent). Unpublished cases cited for persuasive value are subject to these additional qualifications: (1) only cases issued on or after January 1, 2015, (2) no opinion adequately addresses the issue before the court, and (3) the citation is not to a depublished opinion or a depublished portion of an opinion.

All citations to unpublished cases must indicate that the decision is a memorandum decision, and the memorandum decision must be provided to the court and opposing counsel, either by a copy of the decision or a hyperlink to the decision.

Judge Richard Arnold of the Eighth Circuit Court of Appeals wrote that failure to treat every decision as precedent creates “an underground body of law good for one place and time only.” Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated by 235 F.3d 1054 (8th Cir. 2000) (rehearing en banc). When Courts choose for themselves those “that they will follow in the future and those that they need not,” those Courts are saying to the bar: “We may have decided this question the opposite way yesterday, but this does not bind us today, and what’s more, you cannot even tell us what we did yesterday.” Id. at 904. Anastasoff was later reheard and vacated en banc.

¹ Aaron S. Bayer (August 24, 2009), Unpublished Appellate Opinions Are Still Commonplace, The National Law Journal
² https://www.azcourts.gov/Portals/39/2017DR/GJAppCaseActivity.pdf#page=9

Sanctions and the Terrible, Horrible, No Good, Very Bad Appeal

This may not be a book my new grandson Felix will soon be reading, but it does raise a legitimate question:  When you really, truly, believe a federal appeal is frivolous, and not just garden variety, I know you’re going to lose, please don’t make me spend my client’s money defending, but truly a terrible, horrible, no good, very bad appeal, can you obtain sanctions under Federal Rule 11? If not, what is the most effective  way to obtain sanctions for  a frivolous appeal?

The short answer is that you can seek sanctions under Appellate Rule 38 (by separate motion with notice and opportunity to be heard) and possibly 28 USC § 1912, but  not under Rule 11.  The only deadlines in the 9th circuit are the deadlines for requesting attorney fees generally, see  9th Cir. R. 39-1.6, and the Rule 39 deadline for costs (14 days after judgment).   Therefore, the separate motion could technically be filed either (1) after the decision, but within the 9th Cir. R 39-1.6 and Rule 39 limits or (2) contemporaneously with the brief.  Further, more detailed, analysis follows:

Rule 11.  The U.S. Supreme Court holds that “[o]n its face, Rule 11 does not apply to appellate proceedings.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 406, 110 S. Ct. 2447, 2461, 110 L. Ed. 2d 359 (1990).  The Court determined that the Federal Rules of Civil Procedure only “govern the procedure in the United States district courts.” Neither the language of Rule 11 nor the Advisory Committee Note suggests that the Rule could require payment for any activities outside the context of district court proceedings.  Id.  Thereafter, the Ninth Circuit applied the Cooter rationale and held that “Circuit Rule 1–1 cannot incorporate Rule 11 by reference. Accordingly, Rule 11 sanctions may no longer be imposed in our circuit on appeal pursuant to the In re Curl incorporation theory.” Partington v. Gedan, 923 F.2d 686, 688 (9th Cir. 1991).

Rule 38.  On appeal, the litigants’ conduct is governed by Federal Rule of Appellate Procedure 38. Cooter, 496 U.S. at 407.   The Rule provides that “If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.”  Rule 38.  If the appeal of a Rule 11 sanction is itself frivolous, Rule 38 gives appellate courts “ample authority to award expenses”  Cooter, 496 U.S. at 407.  Indeed, the Court held, because the district court has broad discretion to impose Rule 11 sanctions, “appeals of such sanctions may frequently be frivolous.”  Id., citing 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶ 238.03[2], pp. 38–13, 38–14 (2d ed. 1989) (“[W]here an appeal challenges actions or findings of the district court to which an appellate court gives deference by judging under an abuse of discretion or clearly erroneous standard, the court is more likely to find that the appellant’s arguments are frivolous”).   The Court determined that Rules 11 and 38 are read together as allowing expenses incurred on appeal to be shifted onto appellants “only when those expenses are caused by a frivolous appeal, and not merely because a Rule 11 sanction upheld on appeal can ultimately be traced to a baseless filing in district court.”  Id. “Limiting Rule 11’s scope in this manner accords with the policy of not discouraging meritorious appeals.”  Id. The Court also said that if  appellants were “routinely compelled to shoulder the appellees’ attorney’s fees, valid challenges to district court decisions would be discouraged. The knowledge that, after an unsuccessful appeal of a Rule 11 sanction, the district court that originally imposed the sanction would also decide whether the appellant should pay his opponent’s attorney’s fee would be likely to chill all but the bravest litigants from taking an appeal.”  Id. at 408, 110 S. Ct. at  2462. This is consistent with what many appellate lawyers know to be true (or suspect): Appellate courts are loathe to sanction the filing of appeals, because they do not want to discourage litigants from filing appeals.

a.                Procedure:  The Rule requires a separately filed motion or notice from the court and opportunity to respond. There is no separate 9th Circuit local rule and no specific requirement for timing or warning to the opposing party.

b.               Frivolous. An appeal is considered frivolous in the Ninth Circuit when the result is obvious, or the appellant’s arguments of error are wholly without merit.  Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 656 (9th Cir. 1984); Blixseth v. Yellowstone Mountain Club, LLC, 796 F.3d 1004, 1007 (9th Cir. 2015).  In Taylor, the request for Rule 38 sanctions appears to have been made in the substantive briefs, as the Court addressed the merits and then said appellee sought an award of attorney fees and double costs.   The Court said it exercised its discretion and granted fees on appeal and ordered appellees to file affidavits of fees.   The Blixseth  Court affirmed a bankruptcy court decision, noted the frivolousness of appellant’s claims, and subsequently issued an order to show cause why the appellant and his attorneys should not be sanctioned for pursuing the appeal.  In the published opinion cited above, the Court ruled on its order to show cause,  and imposed sanctions against the party and certain of his attorneys.  Other attorneys were not sanctioned because, although they allowed their names to be placed on briefs “that presented frivolous and inflammatory arguments,” “lack of bad faith cuts against sanctioning these four attorneys.” Id. at 1008.  An appeal is not frivolous merely because it is unsuccessful.  McKnight v. General Motors Corp. 511 U.S. 659, 660 (1994). However, the Ninth Circuit has imposed sanctions for arguments on issues that were not properly preserved, General Brewing Co. v. Law Firms of Gordon, Thomas, 694 F.2d 190 (9th Cir. 1982), and for arguments that are completely meritless and which the same appellant or counsel had made unsuccessfully in another court, Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 212 (9th Cir. 1987)(“All of the arguments that Coastal makes on appeal, like the arguments that it raised before the district court, are frivolous”)  As the Coastal Court noted:  “By any measuring rod, this appeal is frivolous. In well reasoned and well written dispositions, two district court judges pointed out to Coastal the defects in its approach.” Id. at 210. The Ninth Circuit has also imposed sanctions for briefs that are deficient because they left the court “entirely in the dark” as to what the case was about, Hamblen v. County of Los Angeles, 803 F.2d 462 (9th Cir. 1986) and failed to make references to the record, Mitchel v. General Electric, 689 F.2d 877, 879 (9th Cir. 1982).

28 U.S.C. §1912.  “Where a judgment is affirmed by the Supreme Court or a court of appeals, the court in its discretion may adjudge to the prevailing party just damages for his delay, and single or double costs.” The court has discretion to impose damages against litigants, under both Rule 38 and 28 U.S.C. § 1912 for bringing a frivolous appeal. Maisano v. United States, 908 F.2d 408, 411 (9th Cir. 1990).  Again, “an appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit.”  Id.

Defective briefs. The Court has discretion to impose sanctions against counsel for failure to comply with the requirements of Rule 28, Fed.R.App.P. and Ninth Circuit Rules 28-1 through 38-3, dealing with the form and content of briefs on appeal.  See Circuit Advisory Committee Note to Rule  46, Fed.R.App.P.   See Mitchel v. Gen. Elec. Co., 689 F.2d 877, 878 (9th Cir. 1982)(“Mitchel’s brief on appeal follows the same pattern as his memoranda to the court below. It contains allegation after allegation, all of which are unsubstantiated by sworn affidavits or references to discovery documents.”

Rule 38 v. 28 U.S.C. §1912.  The Advisory Committee Note to Rule 38 compares the Rule with 28 U.S.C. §1912, and notes that the Rule allows damages if the appeal is frivolous without requiring a showing that the appeal resulted in delay.

Notice. The Advisory Committee also notes that before a court of appeals may impose sanctions, the person must have notice and an opportunity to be heard. The Committee says that a request for sanctions in briefs is “so commonplace that it is unrealistic to expect careful responses,” and is not sufficient to provide notice.  The Committee says that “a separately filed motion requesting sanctions constitutes notice.”  “Only a motion, the purpose of which is to request sanctions, is sufficient.”

Timing. There is nothing in the Rule, the Committee Notes, or the Ninth Circuit local rules as to when a Rule 38 Motion must be filed.   By contrast, 11th Cir. R. 38–1 expressly provides that “Motions for damages and costs pursuant to FRAP 38 must be filed no later than the filing of appellee’s brief”; see Consol. Gov’t of Columbus, Ga., 438 Fed. Appx. 837, 840 (11th Cir. 2011).  However, 9th Cir. R 39-1.6 generally provides that “[a]bsent a statutory provision to the contrary, a request for attorneys’ fees shall be filed no later than 14 days after the expiration of the period within which a petition for rehearing may be filed, unless a timely petition for rehearing is filed. If a timely petition for rehearing is filed, the request for attorneys fees shall be filed no later than 14 days after the Court’s disposition of the petition.”  Rule 39 provides that taxable costs must be requested “within 14 days after entry of judgment.”  Rule 38 refers to both “just damages and single or double costs.”  The Fifth Circuit holds that requests for costs and/or attorney fees under Rule 38 must be made within 14 days after the entry of judgment. See Procedure for Awarding Damages, 16AA Fed. Prac. & Proc. Juris. § 3984.3 (4th ed.), citing Sims v. Great-West Life Assur. Co., 941 F.2d 368, 371–373 (5th Cir. 1991). My recommendation as to timing and notice in the 9th Circuit, or any other Circuit that has no specific local rule on timing:  (1) In the last sentence of the answering brief, state “By separate Motion after the decision, and with notice and reasonable opportunity to respond, Appellee intends to seek sanctions under Rule 38, Fed.R.App.P.; and (2) file the separate motion, after the decision but and no later than 14 days. Alternatively,  the motion  could be filed contemporaneously with (but separately from) the answering brief, as this is also technically within the time period of R 39-1.6 (not later than 14 days after expiration. . . ).  As one treatise states, “if an appellee wishes to maximize the chances that such a sanction will be imposed the appellee should file a motion, and should do so without undue delay.” Procedure for Awarding Damages, 16AA Fed. Prac. & Proc. Juris. § 3984.3 (4th ed.).

My next blog entry will discuss sanctions on appeal in Arizona, and examine the Division 2  standard enunciated in In re $15,379 in U.S. Currency, 2 CA-CV 2015-0166, 2016 WL 7826506 (App. Dec. 22, 2016).  Because sometimes, even in Arizona, we see a terrible, horrible, no good, very bad appeal.

Grandbabies and Appellate Rule Changes

Right now, I have two dizzying concepts in mind:  First, in about four weeks, I am about to become a first-time grandmother. Second, the types of changes currently being made to the appellate rules will not even be a blip to my grandson when he’s a lawyer in about 25 years. The amendments to the Federal Rules of Appellate Procedure,  effective December 1, 2016, arise, for the most part, out of changes in technology.   Some of the amendments refine prior Rules that, while taking into account technology, were nevertheless skeptical of its efficacy and reliability.

For example, it is now acknowledged that service by electronic means is reliable and virtually instantaneous, and that including electronic service in the three day rule for snail mail is both unnecessary and anachronistic. [1]   When Rule 25(c) was amended in 2002 to provide for electronic service,  it was nevertheless included in the means of service that allowed the added three days, based on concerns that transmissions might be delayed or that “incompatible systems” might make it difficult to open attachments.  The Advisory  Committee on Appellate Rules has now decided that those concerns are alleviated by both advances in technology and by lawyers’ “widespread skill”  in using computers.  Therefore, newly-amended Rule 26(c) now removes service by electronic means under Rule 25(c)(1)(D) from the means of service that allow three added days to the specified time after service.

While sensible in its own terms, the amendment nevertheless raises new questions. When it was presented to the lawyers in my own firm, there was an immediate outcry about spiteful opposing counsel tending to serve electronically after business hours, or even playing with timing such that papers were due the day after Thanksgiving.  The Committee did address this issue, acknowledging that electronic service after business hours or just before or during a weekend or holiday could result in a reduction in time to respond.  The Committee suggested that “extensions of time may be warranted to prevent prejudice.”  See Committee Note.  However, the Committee’s practical suggestion is not codified, and it is unclear how the Judges or individual Circuits will respond to such gamesmanship.

I also recommend that you always check your local rules.  For example, under Ninth Circuit Rule 26-2, an additional three days for service by electronic means will continue to be added to those deadlines that are based on service of another document.   See blast@ca9.uscourts.gov.

There is one change that appears, at first glance, to be just a change in language but is actually substantive.   Rule 4(a)(4)(A) clarifies the effect of a so-called “time-extending motion.”  Previously, the Rule provided that if a party “timely files in the district court” certain post-judgment motions,  the time to file an appeal runs from the entry of the order disposing the last such remaining motion.   There was a circuit split in the meaning of “timely” – did it mean timely under the Rules? Timely based on court order setting a different due date?  Or timely based on stipulation or simply failure by the opposing party to object?  See i.e. Nat’l Ecological Found. v. Alexander, 496 F.3d 466, 474 (6th Cir. 2007)(the time limits set by Rules 6 and 59(e) constitute an affirmative defense to an untimely Rule 59(e) motion, which the party opposing the motion is capable of forfeiting); cf  Lizardo v. United States, 619 F.3d 273, 278 (3d Cir.2010)(untimely motions do not toll the period for filing a notice of appeal “even if the party opposing the motion did not object to the motion’s untimeliness and the district court considered the motion on the merits”); Blue v. Int’l Broth. of Elec. Workers Local Union, 159, 676 F.3d 579, 583 (7th Cir. 2012)(“Third Circuit has the better of the argument”).   The Rule now provides that if a party files in the district court any of the specified motions “and does so within the time allowed by those rules” the time to file an appeal runs from the entry of the order disposing of the last such remaining motion.   The amendment accordingly rejects the 6th Circuit approach and provides that a motion made after the time allowed by the Rules will not qualify as a time-extending motion.

A series of Rule changes address length limits, mostly, again, arising out of changes in technology.  The Rules Committee explains that, while word limits have been added to or replaced page limits, the original word limits were derived from the assumption that one page is equivalent to 280 words.   In 1998, the length limit for principal briefs was converted from 50 pages to 14,000 words.  Long time practitioners happily greeted the change, as their  opponents (never themselves) could no longer subtly play with margins and “widows and orphans” typography.    Critics questioned the conversion ratio and judges expressed concern about the length of briefs.  The amendments now reflect a conversion ratio of 260 words per page.    Rules 5, 21, 27, 28, 28.1, 32,  35 and 40 provide word limits using the 260 word equivalent.  The Rules retain page limits for papers prepared using typewriters or by hand.   The prior 14,000 word limit for a principal brief has been reduced to 13,000 words, and the word limit for a reply brief has been reduced from 7,000 to 6,500 words.  But again, always check your local rules.  The 9th Circuit Court of Appeals has retained the existing word limits for briefs.

As we enter the next round of appellate rule amendments,  I am happily anticipating both my techno-efficient grandchild and a system that readily adapts to changes in technology that he will take for granted.

[1]  Given that the U.S. Postal Service is $15 billion in debt, http://www.newsweek.com/do-we-need-postal-service-319243, it is unlikely we will still be doing any service by regular mail, when my grandson is a lawyer in 25 years.

BFF’s With the Court: How Can My Group Be a Friend of the Court?


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When you think about it, an amicus brief – “friend of the court” is a quite agreeable concept.  As a non-party to the case, with no direct interest in the outcome, you can explain to the court – as a friend, not a litigant – why its ultimate decision has larger ramifications.  Last March, 212 members of Congress made news by filing an Amicus Brief in the United States Supreme Court in U.S. v. Edith Schlain Windsor, the challenge to Section 3 of the 1996 Defense of Marriage Act (DOMA).  Thirty two states filed amicus briefs inMcDonald v. Chicago, the 2010 case that held that the right of an individual to “keep and bear arms” is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states.  Your group may have another interest to protect that is no less important to your own members.

For example, my firm represented a trustee association as an amicus on a question certified from the bankruptcy court to the Arizona Supreme Court –  whether a trustee’s sale of real property could be set aside solely on the basis that the bid price was grossly inadequate.  Active members of the trustee association were  individuals and entities engaged in all aspects of non-judicial foreclosures, including the preparation of title reports, the posting and publishing of notices, the legal analyses, the appraisals and valuation, and the conduct of trustee’s sales at public auctions.  Affiliates of the association were realtors, investors and others with ancillary interests in the foreclosure process.   In our request for leave to appear as Amicus Curiae, we advised the Arizona Supreme Court that, by virtue of their direct and continuing involvement in real estate foreclosure industry, the trustee association and its members had a substantial interest in the outcome of the certified question, and that proper resolution of the issue was crucial to the continued viability of the foreclosure industry in Arizona.  The Court granted the request, permitting our client to be heard as a friend of the Court, and thereby providing a broader base for the Court’s decision.

U.S. Supreme Court Rule 37 provides that an amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties “may be of considerable help to the Court.” However, an amicus curiae brief that does not serve this purpose “burdens the Court and its filing is not favored.”   The Rule provides a specific procedure and timing for filing an amicus brief in the Supreme Court.  No motion for leave to file an amicus brief is necessary if the brief is presented on behalf of the United States by the Solicitor General; on behalf of an agency of the United States allowed by law to appear before the Court when submitted by the agency’s authorized legal representative; on behalf of a state, when submitted by its Attorney General; or on behalf of a city, county, town or similar entity when submitted by its authorized law officer.  For all other entities, such as a trustee association, a religious group, a group with a political leaning, or other advocacy group, the putative amicus curiae must either obtain written consent of all parties, or file a motion for leave to file the brief.

The Rule is similar in Arizona, where the state, and any county, city or town may file an amicus brief without either consent of the parties or leave of court.  Other entities must, again, have either consent of all the parties or leave of Court.  In a Comment to the 1998 Amendment, the drafters noted that, even though the current Rule permits amicus briefs to be filed without leave of court with consent of all parties, “amicus curiae should keep in mind the purpose of an amicus brief.”  The Comment pointed out, in a nod to the Supreme Court Rule, that the brief “should assist the Court, not advocate a particular litigant’s case.”  Moreover, the drafters caution, the brief should not duplicate those of the parties, nor merely extend the length of a litigant’s brief.  Rather, “it should provide a broader, more abstract presentation of law that is not narrowly tied to the facts of the case.”

What types of cases might you see in amicus briefs?  Certainly, significant criminal cases, including State v. Butler,[i] where a long list of amici curiae appeared on the question whether, notwithstanding the implied consent law, consent must be voluntary under the Fourth Amendment for a blood draw to be admissible.  Amici curiae included National College for DUI Defense, Arizona Attorneys for Criminal Justice, and ACLU of Arizona.  But there are also a multitude of commercial cases where a business or civic organization claims an overriding interest in the outcome and has been heard as an amicus.  For example, Division Two of the Arizona Court of Appeals permitted and quoted from a brief filed by the Manufactured Housing Communities  of Arizona, on the question whether a mobile home part as a whole or only its individual constituent spaces can be considered a nonconforming use under the applicable statute.[ii] In a recent medical malpractice case,[iii] the Arizona Supreme Court considered the briefs of Arizona Association for Justice/Arizona Trial Lawyers Association, an insurance company, a pair of individuals and the Arizona Medical Association.  The case involved the interpretation and constitutionality of the Arizona statute that sets forth requirements for experts who testify about the appropriate standard of care in medical malpractice cases.  Of particular note are cases where the Court expressly acknowledges and addresses the positions of the amici, as in Sell v. Gama[iv], where the Court found that the various policy arguments advanced by a party and certain of the amici “are better directed to the legislature.”   Two groups of organizations, including a variety of school districts and the Maricopa County Consumers Advocate and Providers, filed amicus curiae briefs in Fogliano v. Brain ex rel. County of Maricopa.   The Court quoted from the amicus briefs on issues of options for available sources of funding, but determined that the controversy over the Legislature’s funding decisions and resulting enrollment freeze was not one it should decide because it involved a nonjusticiable political question.

In each of these cases, the role of the amicus brief was to educate the court as to some broader aspect of the case and its potential impact on society, groups of similarly situated entities and individuals, and future litigants.  While the filing of an amicus brief will not be appropriate in every case, as Judge Samuel Alito (now Justice Alito)  recognized,  “an amicus who makes a strong but responsible presentation in support of a party can truly serve as the court’s friend.” Neonatology Assocs. v. Comm’r of Internal Revenue, 293 F.3d 128, 131 (3d Cir.2002).

If an appellate case may impact your industry, consider filing an amicus brief.  We are experienced appellate attorneys, available to talk about your position and write your amicus curiae brief.

[i] 232 Ariz. 84, 302 P.3d 609 (2013).

[ii] Stagecoach Trails MHC, L.L.C. v. City of Benson

— P.3d —-, 2013 WL 3788800 (App. 2013).

[iii] Baker v. University Physicians Healthcare,

231 Ariz. 379, 296 P.3d 42 (2013).

[iv] 231 Ariz. 323, 295 P.3d 421 (2012)

This article is not intended to provide legal advice and only relates to Arizona law. It does not consider the scope of laws in states other than Arizona. Always consult an attorney for legal advice for your particular situation.

ther than Arizona. Always consult an attorney for legal advice for your particular situation.

‘Working with the Court of Appeals’ Seminar 11/14


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I will be presenting at the State Bar of Arizona’s annual ‘Working with the Court of Appeals” (WCCA), a CLE taking place on Friday, November 14th at the Hotel Palomar in Phoenix, Arizona from 9 a.m. to 4:30 p.m.

I am presenting the first seminar titled ‘How Not to Lose Your Appeal Before It Starts: Jurisdiction, Taking an Appeal and Preserving the Record’.

Attendees will learn about the new appellate rules going into effect Jan. 1, 2015, how to best work with appellate clerks, what influences judges in briefs and oral argument, how to structure and write your brief, when to take special action, what judges want to see, discussion of major decisions and how judges reach decision in appeals.

I am head of the appellate law department at Jaburg Wilk and have written over a hundred appellate briefs in the Arizona Court of Appeals, Ninth Circuit Bankruptcy Appellate Panel, U.S. District Court, Ninth Circuit Court of Appeals, Arizona Supreme Court, and United States Supreme Court.

To purchase tickets or for more information, visit the State Bar of Arizona’s website.

Hope to see you there!

Don’t Bogart That Medical Marijuana, My Caregiver.


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“The medical marijuana is actually for the caregiver,” my dad explained. I did not know that. “Everyone knows that,” he assured me, having discovered as much in his support group. My mother was dying of lung cancer, and in the full throes of cancer pain, helped very little by Vicodin, Oxycontin, or even morphine. My dad had been awake most of the night for weeks, caring for his wife of 51 years. Pain has a sound, and he heard it. All night. This was back in the early days of California’s Proposition 215, the Compassionate Use Act of 1996. Medical marijuana. I knew little about it, and assumed its use was limited to patients with severe cancer pain, the symptoms of AIDS, and other diseases that were, or threatened to be, mostly terminal.

No one in that house was driving around under the influence of marijuana, medical or otherwise.

Today, 23 states and the District of Columbia have enacted laws to legalize medical marijuana. In Arizona, the law allows qualifying patients to obtain marijuana from a registered dispensary, upon receipt of an identifying card, obtained with a physician’s written certification that the patient has a debilitating disease. There is a list of debilitating medical conditions that qualify for medical marijuana, and public hearings for those who want to petition to add to the list of conditions. Specific information is available at http://www.azdhs.gov/medicalmarijuana/faqs/index.php . The list includes people who are able, or who think they are able, to drive around, after ingesting medical marijuana.

On October 21, 2014, the Court of Appeals concluded that Arizona’s Medical Marijuana Act (AMMA) does not give an authorized medical marijuana user immunity from prosecution when he drives under the influence. A.R.S. § 28–1381(A)(3) criminalizes driving while there is any prohibited drug or its metabolite in a person’s body. Travis Lance Darrah was an authorized medical marijuana user when he was arrested in December 2011 and charged with two counts of DUI in violation of A.R.S. §28-1381. His blood contained 4.0 ng/ml of delta -9-tetrahydrocannobinol, an active component of marijuana.

The trial court precluded evidence that Darrah possessed a medical marijuana card at the time of his offenses, and a jury found him guilty under A.R.S. §28-1381(A)(3)(presence of marijuana or its metabolite). The jury acquitted him of the charge under A.R.S. §28-1381(A)(1)(impairment). Darrah asked the reviewing court to set aside his DUI conviction based on A.R.S. §36-2802(D), which provides that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment. Darrah argued that this provision manifests the intent of the AMMA to make all authorized medical marijuana users immune from prosecution unless they drive while impaired.

The Court of Appeals found that nothing in the plain language of §36-282(D) or elsewhere in the AMMA supports Darrah’s interpretation of the statute. The Court said that if Arizona voters had intended to completely bar the State from prosecuting authorized marijuana users under §28-1381(A)(3), they could have done so by using specific language. The Court found further that Darrah’s interpretation contravenes the Arizona Supreme Court’s determination earlier this year that, despite the legality of marijuana for medicinal purposes, prosecutors can charge legal users under A.R.S. §28-1381(A)(3) because that statute does not require the state to prove that the marijuana was illegally ingested. Accordingly, the AMMA does not bar prosecution for DUI.

My dad agrees: “Marijuana,” he says, “impairs one’s judgment and sense of time and space and can be dangerous when driving,” but “when properly used for relief of pain and nausea from chemotherapy, it has its place.” My dad got the pills from a retired doctor in his cancer support group who described them as “synthetic marijuana.” They reportedly had no effect on the caregiver.

This post is not intended to provide legal advice. Always consult an attorney for legal advice for your particular situation.

Ash and Amber are Getting Married! (Judge Sedwick says so)


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This is the wedding announcement to the world that our kind, smiling, infinitely patient IT person Ash is getting married. She and Amber have been together seven years and they had the wedding planned anyway, in San Diego, but now Judge Sedwick has impliedly blessed it. Ash, with the calm but no nonsense demeanor. Ash, of the “did you try rebooting already” school of business. Ash and Amber. In a four page ruling, U.S. District Court Judge John Sedwick has changed their lives.

Judge Sedwick ruled that Arizona’s ban on same sex marriage is unconstitutional and refused to grant a stay. His decision is a grant of summary judgment in favor of plaintiffs in Nelda Majors, et al. v. Tom Horne, et al., 2:14-cv-00518.

https://www.scribd.com/doc/243344773/AZ-Gay-Marriage-Document. Judge Sedwick finds that, given recent developments in the law of the Ninth Circuit, oral argument “would not be of assistance to court.” The order provides minimal factual background, other than explaining that the plaintiffs include (1) same-sex couples who were married in another jurisdiction and seek to have Arizona recognize their marriages; (2) same-sex couples who wish to wed in Arizona; and (3) an organization that represents the interests of same-sex couples. At issue are statutes and provisions of the Arizona Constitution that define marriage as between a male and female and that provide that same-sex marriage is prohibited in Arizona.

Citing the recent Ninth Circuit decision that substantially identical provisions of Nevada and Idaho law that prohibit same-sex marriages are invalid as violations of the equal protection clause, and noting that it is “bound by decisions of the Court of Appeals for the Ninth Circuit,” the Court determined that “plaintiffs are entitled to a declaration that the challenged laws are unconstitutional together with a permanent injunction prohibiting enforcement of the challenged laws.” Judge Sedwick refused to grant a stay because, as he said, “it is clear that an appeal to the Ninth Circuit would not succeed.” In perhaps the most astounding sentence of the ruling, the District Court judge said that, based on its recent denial of petitions for writs of cert filed as to other circuit decisions, “it is also clear…that the High Court will turn a deaf ear on any request for relief from the Ninth Circuit’s decisions.”

Massachusetts became the first state to legalize same sex-marriage in 2004. The country remains a patchwork of legislation and constitutional provisions. As of this writing, Arizona joins 30 states and the District of Columbia allow and recognize same-sex marriages; 20 states and two territories explicitly prohibit same-sex marriages.

As of this writing, Attorney General Tom Horne has announced that he will not appeal the ruling. Mazel Tov, Ash and Amber!

This post is not intended to provide legal advice. Always consult an attorney for legal advice for your particular situation.