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 . 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. 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.

Why Isn’t This Blog Called “De Novo Review”? Or “That’s an Abuse of Discretion”?


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Good questions.  I considered those. I am, after all, going to use this space to discuss the most interesting appellate decisions in Arizona, the Ninth Circuit, and possibly other Circuits, depending upon who piques my interest and why.   I could, of course, write reams about the fall weather in Arizona (lovely); or my morning run (5 miles, scintillating conversation with my running partners); or my kids (fine, thank you –  Rebecca is studying for her boards and Alex is researching something about amphipathic dynorphin analogues).  It’s all quite appealing.  And whenever my personal stories are more interesting than any appellate decision, I’ll be sure to apprise the world. Hence, the title and, happily, our marketing person Lindsay agrees it’s perfect.

My current favorite new case has a convoluted history and a plaintiff named “Bingo Bada Bing.” I happen to know a bit about it, as the Jaburg Wilk appellate team represented Mrs. Sasser, the successful appellant in  Rogone v. Correia, 1 CA-CV 13-0375, 2014 WL 4783414 (App. Sept. 25, 2014).  John Rogone is the “Bingo Bada Bing” of children’s book fame and immortalized in a Fox news report, when he tattooed Sheriff Joe’s face on his belly and had the sheriff autograph the picture.  The appellate decision itself is only slightly less interesting (although there are admittedly no tattoos involved).  The Court of Appeals determined that the homestead exemption is available without reference to equitable factors.  The Rogones argued that Mrs. Sasser was not entitled to her homestead exemption because her home had been sold to satisfy a California fraud judgment.  But the Court noted that A.R.S. §33-1101 does not require a person to satisfy notions of equity to qualify for the exemption.  The Court also determined, in a case of first impression, that the superior court is all one court and that a judge may rule on a Rule 60 motion to set aside a judgment entered by a different judge. The court found that, although it might have been desirable to have a single judge consider the issue, consideration of a Rule 60 motion by a newly assigned judge (after standard judicial rotation) raises no jurisdictional concerns.

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