1. Which of the following Justices from the U.S. Supreme Court most reflects your judicial philosophy?
Thomas*
As a judge, I find myself drawn to the jurisprudence and methodology of the late Justice Antonin Scalia. Among current justices, I appreciate Justice Thomas' approach of always starting with the Constitution's text.
2. Please rate your judicial philosophy on a scale of 1 to 10, with "strict constructionism"1 being a "1" and "noninterpretivism" being a "10."
1
3. Please state if you AGREE or DISAGREE with the following statement from Chief Justice of the United States John Roberts: "Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire."
1*
This means I often depart from my own personal policy preferences. As Justice Gorsuch said in his confirmation hearing, a judge who doesn't disagree with many of his or her decisions is probably not a good judge. By contrast, those who favor evolving constitutional meaning rarely if ever depart from their own policy preferences. The rule of law depends on judges who enforce the original plain meaning of constitutional provisions and statutes.
4. Please rate your agreement with the reasoning in this statement from the U.S. Supreme Court on a scale of 1 to 10 with a "1" for strongly agree to a "10" for strongly disagree: "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."
8*
I agree that the concept of "liberty" in the 5th and 14th Amendments contemplates a broad range of personal autonomy, as defined in the Magna Carta and Declaration of Independence, although the due process clauses have been applied far beyond their intended scope. Beyond that, Justice Kennedy's sweeping language is a reflection of "living constitutionalism" that is given meaning only by a judge's imagination and subjective preferences. I strongly agree with Justice Thomas' concurring opinion in McDonald v. City of Chicago that the 14th Amendment's "privileges or immunities" clause, and not the due process clause, was intended to protect a wide range of individual rights.
5. Please rate your agreement with this statement from former U.S. Supreme Court Chief Justice John Marshall on a scale of 1 to 10 with a "1" for strongly agree to a "10" for strongly disagree: "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law."
1*
I look to The Federalist No. 78 for my view of the important yet limited role of the judiciary.
Judicial Decisions
STATE OF ARIZONA v PRESTON ALTON STRONG
Case Date: 09/03/2024Case Number: CR170201-APQuestion Presented: Whether there was error in the convictions and death sentences of Preston Strong.Decision: Court affirm Strong’s convictions and sentences.Judge Position: Joined in the 7/0 decision. Summary of Dissent or Concurrence: https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2024/CR170201AP.pdf
FRANCISCO, et al v AFFILIATED UROLOGISTS, et al
Case Date: 08/16/2024Case Number: CV230152PR-PRQuestion Presented: Whether a warning required by the Food and Drug Administration (“FDA”) regarding the use of prescription medication can serve to establish the standard of care and obviate the need for expert testimony in a medical malpractice suit?Decision: Arizona law does not permit such warnings to substitute for the required testimony and independently establish the standard of care.Judge Position: Joined in part in the 6/1 decision, and authored his own opinion concurring in part and dissenting in part.
PIMA COUNTY et al v STATE OF ARIZONA et al
Case Date: 07/22/2024Case Number: CV-21-0213-PRQuestion Presented: Whether the State must reimburse Pima County for desegregation expenses that exceed the Arizona Constitution’s 1% Limit on residential property taxes as “additional state aid for Education.”Decision: The funding allocations for desegregation expenses authorized by § 15-910(G)–(L) are not “primary property taxes” and desegregation expenses are not included in the law’s calculations, which only reimburse primary property taxes, so the State is not required to reimburse desegregation expenses that otherwise would exceed the 1% Limit as additional state aid for education.Judge Position: Joined in the 7/0 decision.
AMY SILVERMAN, et al. v ADES
Case Date: 06/03/2024Case Number: CV-23-0181-PRQuestion Presented: Whether investigative journalists can engage in “bona fide research” and gain access to otherwise protected records maintained by the Arizona Department of Economic Security concerning abuse, exploitation, or neglect of vulnerable adult.sDecision: Yes, they can. The Court defines “bona fide research” and provides guidance concerning ADES’s exercise of discretion in deciding whether and in what manner to release records under the “bona fide research” exception.Judge Position: Joined in the 7/0 decision.
STATE OF ARIZONA v MANUEL DAVID PEREZ-GUTIERREZ
Case Date: 05/31/2024Case Number: CR-23-0137-PRQuestion Presented: Whether an unobjected-to violation of A.R.S. § 13-711(A)—which requires courts to explain certain sentencing decisions on the record—is amenable to: (1) fundamental-error review, (2) structural-error review, or (3) the limited-remand practice.Decision: Because violations of § 13-711(A) are like administrative errors that a trial court can correct without affecting the disposition, a remand for the limited purpose of statutory compliance is appropriate.Judge Position: Joined in the 7/0 decision.
PLANNED PARENTHOOD et al v KRISTIN MAYES/HAZELRIGG
Case Date: 04/09/2024Case Number: CV-23-0005-PRQuestion Presented: Whether the Arizona Legislature repealed or otherwise restricted the pre-Roe abortion ban (A.R.S. § 13-3603) by passing the 15 weeks law (prohibiting physicians from performing elective abortions after fifteen weeks’ gestation). Decision: The 15 weeks law does not create a right to an abortion that repeals or restricts the pre-Roe law. The pre-Roe law is enforceable.Judge Position: Joined in the 4/2 decision. Summary of Dissent or Concurrence: Dissent by J. Timmer joined by J. Brutinel: The two laws should be harmonized to allow physicians to perform abortions before fifteen-weeks’ gestation or when necessary to preserve the pregnant woman’s health.
CAO et al. v PFP DORSEY et al.
Case Date: 03/22/2024Case Number: CV-22-0228-PRQuestion Presented: Whether the forced sale of a condo unit violated the eminant domain provision of the Arizona Constitution or the Arizona Condominium Act.Decision: The Arizona Condominium Act does not violate the eminent domain provision of the Arizona Constitution as applied to the appellants because the condominium declaration to which they agreed included the Act and allowed for the partition of the property upon dissolution. However, the Condominium Act required the sale of all property, rather than individual units.Judge Position: Authored the 7/1 decision.
AVITIA v CRISIS PREPARATION
Case Date: 10/16/2023Case Number: CV-22-0288-PRQuestion Presented: Whether mental health professionals have a statutory or common law duty to third parties for harm caused by a patient under their care.Decision: The legal duty to report child abuse or neglect does not include reporting a risk of future harm. Mental health professionals owe a duty to third parties based not on foreseeability of harm, but on their special relationship and public policy, overruling prior decisions.Judge Position: Authored the 6/1 decision in which J. Timmer joined in part and dissented in part and wrote a separate opinion.Summary of Dissent or Concurrence: Concurrence and dissent in part by J. Timmer: The statutory duty to report child abuse or neglect does not include reporting a risk of future harm. However, the common law duty to warn and protect forseeable victims should not be overruled and the court should not have addressed the anti-abrorgation issue because neither party raised or argued it below.
TORRES et al v JAI DINING SERVICES
Case Date: 10/16/2023Case Number: CV-22-0142-PRQuestion Presented: Whether the Arizona Constitution's anti-abrogration clause extends to rights of action created after the constitution was ratified.Decision: The Court held that "the anti-abrogation clause does not extend to dram-shop actions because they were recognized after statehood."Judge Position: Joined in the 4-1 decision and wrote a concurring opinion. Summary of Dissent or Concurrence: Concurrence by J. Bolick: I fully agree with the majority and write to respond to the dissent who "would subordinate our express separation of powers to an overly expansive view of the judiciary’s implied powers." Dissent by J. Timmer: Constitutional protection for actions has evolved since statehood and the majority opinion ignores stare decisis and weakens the anti-abrogation clause's open court access guarantee.
ROBERT WALLACE v HON. JAMES D. SMITH/CRUZ et al
Case Date: 07/25/2023Case Number: CV-22-0143-SAQuestion Presented: "Whether an Arizona Rule of Civil Appellate Procedure instructing courts to include “damages, costs, attorney’s fees, and prejudgment interest” when setting the amount of an appeal bond superceeds a state law instructing courts to only include damages."Decision: The Court resolved the conflict of law in favor of the Rule because determining the amount of the bond is a procedural matter within the purview of the judicial branch under the Arizona Constitution.Judge Position: Joined in the 7/0 decision.
AZ PETITION PARTNERS LLC v HON. THOMPSON/STATE
Case Number: CR-22-0154-PRQuestion Presented: Whether A.R.S. § 19-118.01 facially violates the First Amendment because it only prohibits per-signature compensation to petition circulators.Decision: The statute is contitutional on its face because it is not vague, overbroad, or problematice for providing criminal penalties. Judge Position: Authored the 7/0 decision.
STATE v HONS. BREARCLIFFE/VASQUEZ et al
Case Number: CV-21-0174-SAQuestion Presented: What safeguards must be provided to a defendant before losing the right to appeal due to absence during sentencing following the defendant's conviction?Decision: The Court held that "(1) the defendant must receive notice that the right may be waived if his or her absence prevents sentencing from occurring within ninety days after conviction; (2) the waiver must be knowing, intelligent, and voluntary; and (3) the defendant must be provided an opportunity at sentencing to prove by clear and convincing evidence that the absence was involuntary."Judge Position: Joined in the 7/0 decision.
TIMOTHY MATTHEWS v ICA/CITY OF TUCSON/TRISTAR
Case Number: CV-21-0192-PRQuestion Presented: Whether A.R.S. § 23-1043.01(B), which limits workers’ compensation claims for mental illnesses to those that arise from an “unexpected, unusual or extraordinary stress” situation, violates article 18, section 8 of the Arizona Constitution or the equal protection guarantee of article 2, section 13.Decision: "Section 23-1043.01(B), which has governed compensation of stress-related workplace injuries for more than four decades, does not unconstitutionally limit recovery for such injuries."Judge Position: Authored the 6/1 decision in which J. Timmer joined in part and dissented in part and wrote a separate opinion.Summary of Dissent or Concurrence: Concurrence and dissent in part by J. Timmer: The law at issue does not violate the equal protection but it does violate article 18, section 8 of the Arizona Constitution.
LEIBSOHN et al v HOBBS/VOTERS RIGHT TO KNOW
Case Date: 09/20/2022Case Number: CV220204AP/ELQuestion Presented: Whether signatures collected by some initiative petition circulators must be disqualified because those circulators failed to strictly comply with two statutory registration requirements. Decision: While the circulators technically failed to strictly comply with one state law, the Secretary of State's registration process precluded them from complying and striking the signatures would “unreasonably hinder or restrict” the constitutional right to engage in the initiative process. Judge Position: Joined in the 7/0 decision.
STATE OF ARIZONA v SAMMANTHA LUCILLE REBECCA ALLEN
Case Date: 07/26/2022Case Number: CR-17-0368-APQuestion Presented: Whether a state law, which sets forth an abuse of discretion standard for capital sentences, is "cruel and unusual punishment" in violation of the Eighth Amendment to the U.S. Constitution.Decision: Convictions and sentences including the death penalty affirmed except for Count 4 which is vacated and remanded to the trial court for resentencing on that count.Judge Position: Joined in the 7/0 decision.
MORGAN/NEFF v HONS. DICKERSON/CARDINAL/STATE
Case Date: 06/14/2022Case Number: CV-21-0198-PRQuestion Presented: Whether the First Amendment of the US Constitution gives the public a right of access to jurors’ names during jury selection.Decision: The First Amendment permits court to refer to potential jurors by numbers, not names, during jury selection and the trial.Judge Position: Joined in the 7/0 decision and authored a concurring opinion.Summary of Dissent or Concurrence: Concurrence by J. Bolick: Arizona's Constitution contains a privacy clause that also protects juror privacy.
SOUTH POINT ENERGY CENTER LLC v ADOR et al
Case Number: CV-21-0130-PRQuestion Presented: Whether the Indian Reorganization Act of 1934 expressly preempts Mohave County’s property tax on a power plant owned by non-Indian lessees of federal land held in trust for the benefit of an Indian tribe.Decision: The Indian Reorganization Act of 1934 does not expressly preempt the application of Arizona Constitution, article 9, § 2(13), and A.R.S. § 42-11002, which authorizes Mohave County to tax a non-Indian lessee’s improvements built on leased Indian reservation land.Judge Position: Joined in the 7/0 decision.
STATE OF ARIZONA v KENNETH WAYNE THOMPSON II
Case Number: CR-19-0141-APQuestion Presented: Whether judgements and sentences from a murder trial were made in error including whether the imposition of the death penalty under Arizona’s sentencing statute for felony murder violated defendant’s due process rights under the Fifth Amendment and article 2, section 4 of the Arizona Constitution and his rights under the Eighth Amendment and article 2, section 15 of the Arizona Constitution.Decision: The Court found defendant’s Constitutional rights were not violated and affirmed his convictions and sentences.Judge Position: Joined in the 7/0 decision.
ARIZONA SCHOOL BOARDS ASSOC et al v STATE
Case Number: CV-21-0234-T/APQuestion Presented: Whether four legislative budget reconciliation bills violate the Arizona Constitution’s “title requirement” and “single subject rule.”Decision: "Three bills violate the title requirement and are void in part, and one bill violates the single subject rule and is entirely void. because these bills violate the title requirement, they are void in part, and The bills violate the single s SB 1819 also violates the single subject rule, it is entirely void."Judge Position: Joined in the 7/0 decision and authored a concurring opinion.Summary of Dissent or Concurrence: Concurrence by J. Bolick: The Arizona constitution assigns to the judiciary, not the legislature, the task of determining whether a bill complies with the title requirement or single subject rule.
KAREN FANN et al v STATE OF ARIZONA et al
Case Number: CV-21-0058-T/APQuestion Presented: Whether Prop. 208, imposing an income tax on some Arizona taxpayers to fund public schools, violates the expenditure limitations of the Arizona Constitution?Decision: Prop. 208 is unconstitutional to the extent that it mandates expending tax revenues in violation of the Education Expenditure Clause. The Court also holds that its non-revenue provisions are not severable. Judge Position: Joined in the 6/1 decision.Summary of Dissent or Concurrence: Concurrence and dissent in part by J. Timmer: Agrees with the majority that the trial court did not err by refusing to temporarily enjoin Prop. 208 but disagrees with the court's constitutional and severability analysis.
STATE OF ARIZONA v RONALD BRUCE BIGGER
Case Number: CR-20-0383-PRQuestion Presented: Whether A.R.S. § 13-4234(G) is unconstitutional as applied to the extent it conflicts with, and nullifies, Arizona Rule of Criminal Procedure 32.4(D)’s “no fault” exception to PCR filing time limits.Decision: The law is unconstitutional.Judge Position: Joined in the 7/0 decision.
ANTHONY GARCIA v HON. BUTLER/STATE
Case Number: CR-19-0298-PRQuestion Presented: Whether a trial court has discretion to deny a sexually violent person (SVP) screening when the state requests one under state law.Decision: The Court upholds the law as constitutional by interpreting it to provide for the exercise of trial court discretion whether to grant the State’s request for a sexually violent person screening. Depriving the trial court of any oversight as to whether to grant the state’s request would deprive a defendant of a neutral arbiter and violate basic principles of due process.Judge Position: Joined in the 6/0 decision.
STATE OF ARIZONA v VIVEK A PATEL
Case Number: CR-19-0366-PRQuestion Presented: Whether a state law limiting the amount of restitution that can be awarded to a victim from loss resulting from a violation of specified traffic offenses is an unconstitutional limitation on the right to receive restitution under Arizona Constitution Art. 2, § 2.1(D).Decision: The constitutional right to receive restitution guarantees the victim of a crime the right to receive the full amount of economic loss or injury caused by a defendant’s criminal conduct.Judge Position: Joined in the 6/0 decision.
STATE OF ARIZONA v CITY OF TUCSON
Case Number: CV-20-0244-SAQuestion Presented: Whether the home rule charter provision in the Arizona Constitution overrides a state law that requires city elections be held on a statewide election date and allows a city to hold municipal elections on non-statewide election dates if provided under its charter.Decision: The state law is unconstitutional where a city charter requires electing local officials on a non-statewide election date because art. 14, §2 of the Arizona Constitution gives charter cities autonomy over matters of purely municipal concern.Judge Position: Dissented from the 5/1 decision.Summary of Dissent or Concurrence: Dissent by J. Bolick: The words of the Arizona Constitution are clear and the state law should apply.
STATE OF ARIZONA v CHRISTOPHER AREVALO
Case Date: 09/01/2020Case Number: CR-19-0156-PRQuestion Presented: Whether A.R.S. § 13-1202(B)(2), which enhances the sentence for threatening or intimidating if the defendant is a criminal street gang member, is constitutional.Decision: The law is unconstitutional because it increases a criminal sentence based solely upon gang status in violation of substantive due process.Judge Position: Joined in the 7/0 opinion and authored a concurring opinion.Summary of Dissent or Concurrence: Concurrence by J. Bolick joined by J. Pelander: While fully agreeing with the majority opinion, the justice would also discard the presumption of statutory constitutionality to better protect individual rights.
STATE v HON. KEMP/APOLINAR ALTAMIRANO
Case Number: CR-19-0274-PRQuestion Presented: Whether Arizona’s statutory framework for determining intellectual disability complies with recent Supreme Court opinions regarding intellectual disability and the death penalty.Decision: Arizona’s statutory framework for determining intellectual disability is constitutional.Judge Position: Joined in the 5/0 opinion
STATE OF ARIZONA v JOHN MICHAEL ALLEN
Case Number: CR-17-0556-APQuestion Presented: Whether the trial court erred in imposing the death penalty and aggravated and maximum prison sentences.Decision: The Court rejects an argument that Arizona’s capital sentencing structure fails to adequately narrow the class of defendants eligible for the death penalty in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution and article 2, sections 3, 4, 15, 23, and 32 of the Arizona Constitution.Judge Position: Joined in the 7/0 decision.
STATE OF ARIZONA v THOMAS MICHAEL RILEY
Case Number: CR-15-0411-APQuestion Presented: Whether there was error in Thomas Michael Riley’s convictions and death sentence for the murder of Sean Kelly.Decision: The Court upholds the constitutionality of Arizona aggravated circumstances laws in capital cases, Arizona death penalty statutory scheme, and state law that governs the presentation of mitigation evidence at the penalty phase in a capital case. Judge Position: Joined in the 7/0 decision.
WALTER ANSLEY et al v BANNER HEALTH NETWORK et al
Case Number: CV-19-0077-PRQuestion Presented: Whether the Arizona statutes for “balance billing” to recover costs in excess of Medicaid reimbursements are constitutional.Decision: The laws are unconstitutional as applied under the Supremacy Clause of the U.S. Constitution.Judge Position: Joined in the 7/0 decision.
STATE OF ARIZONA v RICHARD ALLEN REED
Case Number: CR-19-0059-PRQuestion Presented: Whether the legislature had authority to enact Arizona law that dismissed a pending appeal upon a defendant’s death, and, if so, whether the law nevertheless violates the Arizona Constitution by divesting defendants of their right to appeal.Decision: The legislature’s enactment of dismissal was unconstitutional but the legislature’s enactment to prohibit abatement of a defendant’s conviction and sentence was permissible. Judge Position: Joined the 5/0 decision.
BRUSH & NIB et al v CITY OF PHOENIX
Case Number: CV-18-0176-PRQuestion Presented: Whether Phoenix City Code § 18-4(B), which prohibits public accommodations from discriminating against persons based on their status in a “protected” group including a person’s sexual orientation, is constitutional. Decision: The City of Phoenix ordinance as applied unconstitutionally compels speech in violation of the Arizona Constitution Free Speech Clause and the application of the ordinance violates the Plaintiff’s free exercise of religion under Arizona’s Free Exercise of Religion Act (FERA). Joined in the 4/3 decision and authored a concurring opinion. Concurrence by J. Bolick: The state constitution provides even more free speech protection then the federal one and the state free speech clause applies directly to this case. Judge Position: Dissent by J. Bales, joined by J. Timmer and J. Staring: “Our constitutions and laws do not entitle a business to discriminate among customers based on its owners’ disapproval of certain groups, even if that disapproval is based on sincerely held religious beliefs.”Dissent by J. Timmer: The city ordinance requires all businesses to serve people regardless of sexual orientation and Arizona’s free speech provision and FERA provides an no exemption. Summary of Dissent or Concurrence: Dissent by J. Staring: The limitation by the majority opinion on laws of public accomodation is not effective because showing a substantial burden is pretty easy under its guidelines.
STATE OF ARIZONA v. JAMES CLAYTON JOHNSON
Case Number: CR-16-0261-APQuestion Presented: Whether Arizona law in capital cases (first-degree murder) regarding aggravating circumstances for offenses committed in an especially heinous, cruel or depraved manner is constitutional.Decision: The Arizona law is constitutional.Judge Position: Joined in the 7/0 decision.
STATE OF ARIZONA v ALAN MATTHEW CHAMPAGNE
Case Number: CR-17-0425-APQuestion Presented: Whether Arizona capital cases (first-degree murder) regarding aggravating circumstances of the crime committed in an especially heinous, cruel or depraved manner is constitutional.Decision: The Arizona law is constitutional.Judge Position: Authored the 7/0 decision.
SABAN et al v ADOR et al
Case Number: CV-18-0080-PRQuestion Presented: Whether a surcharge on car rental companies in Maricopa County to fund Arizona Tourism and Sports Authority construction projects violates the dormant Commerce Clause of the U.S. Constitution or the anti-diversion provision of the Arizona Constitution. Decision: The surcharge on car rental companies is constitutional.Judge Position: Joined in part and dissented in part in the 6/1 decision and wrote a separate opinion.Summary of Dissent or Concurrence: Concurrence and dissent in part by J. Bolick: Agrees with reservations in the Court's Commerce Clause analysis but disagrees with the Court's anti-diversion clause analysis finding that the tax violates the state constitution's ordinary meaning.
JOSHUA STANWITZ ET AL v REAGAN/OUTLAW DIRTY MONEY
Case Number: CV-18-0222-AP/ELQuestion Presented: Whether to disqualify the “Stop Political Dirty Money” ballot initiative from the November 2018 general election ballot.Decision: The Arizona law that invalidates signatures on initiative petitions when the circulator fails to follow the subpoena requirements in the court case is constitutional. The court disqualified the measure from the ballot. Judge Position: Joined in the 7/0 decision.
