Category Archives: Case Law

Article – Reed v. Town of Gilbert: Signs of (Dis)Content?

A case straight out of Gilbert, Arizona will be heard by the United States Supreme Court later in this session (probably early 2015).  The case will look at what is content-based speech for First Amendment purposes.

The Town of Gilbert created an ordinance that restricts the size, duration and location of temporary directional signs.  The ordinance prohibited the erection of signs without a permit, but for three exceptions: temporary directional signs relating to a qualifying event, political signs, and ideological signs.  Good News Church (that is the name of the church), rented space to meet in a local elementary school.  For a while, the Church put out about seventeen signs around the area announcing the time and location of its services.  The Town of Gilbert claimed the signs violated the sign ordinance’s time restrictions.

The issue is whether Town of Gilbert’s mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code’s differential treatment of petitioners’ religious signs.

This should be a really interesting case to follow.  I will write another article updating this topic after oral arguments.

To read the filings in the case visit SCOTUSblog.

For those who find this subject interesting, there is already some scholarly literature out on this case.  Here is a recent article previewing the upcoming United States Supreme Court case.

This essay provides a preview of the Reed v. Town of Gilbert, Arizona, a case currently (OT 2014) pending in the Supreme Court. The case concerns the regulation of signs by a town government, and requires the Supreme Court to resolve a three-way circuit split on the question of how to determine whether a law is content-based or content-neutral for First Amendment purposes. The basic question raised is whether courts should focus on the face of a statute, or on the legislative motivation behind a statute, in making that determination. I demonstrate that under extant Supreme Court doctrine, the focus should clearly be on the face of the statute, and that under this approach the Town of Gilbert’s sign regulation is (contrary to the Ninth Circuit) clearly content-based.

That the Ninth Circuit erred here is, however, not the end of the matter. More interesting is why it erred. I argue that the Ninth Circuit’s resistance to finding Gilbert’s ordinance content-based was based on subterranean discontent with the most basic principle of modern free speech doctrine – that all content-based regulations are almost always invalid. At heart, what the Gilbert ordinance does is favor signs with political or ideological messages over other signs. Current doctrine says that this is problematic. I question whether that makes any sense. Given the broad consensus that the primary purpose of the First Amendment is to advance democratic self-government, why shouldn’t legislators, and courts, favor speech that directly advances those purposes over other speech, especially when allocating a scarce resource such as a public right of way? Given the brevity of this essay, I only raise but do not seek to answer this question, but argue that it is worthy of further attention by the Court (and of course by scholars).

— Ashutosh Avinash Bhagwat, Reed v. Town of Gilbert: Signs of (Dis)Content?, SSRN.


Phoenix Apartment Complex Found Guilty of Uninhabitable Conditions

A Phoenix apartmment complex is found of uninhabitable by a city court judge.

After a non-jury trial, Judge Lori Metcalf, of the Phoenix Municipal Court found Woodbridge Apartments guilty of 385 out of 406 criminal counts.  That is a 94.8% guilty rate.  Sentencing is scheduled for September 19, 2014. Woodbridge Apartments are located at 6635 North 19th Avenue, Phoenix, Arizona.

Deputy Director of the Phoenix Department of Neighborhoods Tim Boling told ABC 15 News, “this case is probably the most extreme resistance that he has encountered in the city’s efforts to bring a property into compliance.”

This case surpasses the normal landlord-tenant issues moving into issues of basic civil rights.  No one should have to live in squalor.  It took a couple of years, but props to the City of Phoenix prosecutors for pursuing this case.

I haven’t found the legal documents anywhere else on the internet.  I thought I would share them since this is appears to be an extraordinary case for the City of Phoenix.  See the criminal findings by Judge Metcalf below.  Also, the entire civil complaints against Woodbridge Apartments from 2012 are also provided below.

Woodbridge Apartments - Phoenix, Arizona
Woodbridge Apartments – Phoenix, Arizona – Photo taken by AzCommonLaw

Continue reading Phoenix Apartment Complex Found Guilty of Uninhabitable Conditions

Denial of New Trial Medical Malpractice

No one is perfect.  Even doctors, despite their best intentions can make mistakes.  The law is only involved when a doctor did not follow the common practice in the medical community, also known as a standard of care.

A recent Arizona Court of Appeals decision looks in-depth into what the standards are for a medical expert in the state of Arizona and how to evaluate expected future costs into a damages claim. Sandretto v. Payson Healthcare Management Inc., No. 2 CA-CV 2013-0044 (Ariz. Ct. App. 2014).

The facts are Lori Sandretto slipped on a wet floor and tore a miniscus in her knee.  The first doctor she saw, who is not a party to this lawsuit, performed a surgery on her knee.  This did not fix the problem and Sandretto continued to suffer from knee pain.  She sought medical advice from a second doctor about her knee pain, Dr. Charles Calkins, an orthopedic surgeon employed by Payson Healthcare Management (PHM).  Calkins determined that the meniscus was still torn and performed a second surgery.  During the second surgery Calkins took sample fluids from Sandretto’s knee and determined there was not an infection.

Within a week Sandretto’s knee was swollen and painful.

Over the course of the next month Sandretto saw Calkins twice, his Physician Assistant once (PA), and spoke to the PA over the phone once.  Calkins who believed it was a skin infection tried different treatments.  None of treatments seemingly worked.

Calkins went in and saw the PA for a second time.  This time the PA tested the fluid in Sandretto’s knee for a Methicillin-resistant Staphylococcus Auerus (MRSA) infection.  The results came back positive.

Calkins then performed an additional surgery to wash-out the MRSA infection (her third surgery).  This occurred approximately seven weeks after Sandretto initially saw Calkins for knee pain.  Sandretto’s knee required two more wash-out surgeries, which Calkins performed.  Calkins eventually decided Sandretto needed a knee replacement (bringing Calkin’s total surgeries on the knee up to five).

Sandretto’s knee pain continued.  She sought advice from a third doctor who diagnosed her with Chronic Regional Pain Syndrome (CRPS), pain caused by a nerve injury.

Sandretto  sued Calkins and his employer PMH for not acting quick enough to diagnose the MRSA infection, which likely worsened her condition and caused permanent damage.

PMH moved for a new trial partly upon expert testimony and the calculation of damages.

Admissibility of Expert Testimony

PMH questioned the diagnosis of CRPS and questioned the trial expert’s methodology.

To make its determination the Arizona Court of Appeals relied mainly upon Arizona Rules of Evidence 702, and the court case Daubert v. Merrell Dow Pharmaceuticals Inc.  Rule 702 specifically provides guidance on expert testimony.  In 2012, Arizona amended Ariz. R. Evid. 702 to bring it inline with the corresponding federal rule.  The rule gives courts some guidance on how to determine if an expert is qualified in a certain area or not:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

— Ariz. R. Evid. 702

The Daubert Standard

The case Daubert v. Merrell Dow Pharmaceuticals Inc, 509 U.S. 579 (1993) set the modern standard for expert testimony.  Two families sued Merell Dow Pharmaceuticals (Merrell) claiming the drug Bendectin cause birth defects in their children.  Merrell provided the expert Dr. Steven H. Lamm who testified he reviewed all of the available literature on Bendectin and human birth defects, which included more than thirty published reports focusing on humans.  Not a single study linked birth defects to Bendectin.

The families produced eight experts of their own (the United States Supreme court gushed over the credentials of the experts in a footnote to the opinion).  These experts concluded that Bendectin did in fact cause birth defects, basing their opinions off of Bendectin studies in animal and pharmacological analysis of the chemical structure.

The district court did not accept the families experts because their evidence did not have general acceptance “in the field which it belonged.”  Since the families’ experts based their opinions off of animal tests and not human tests, then the court concluded it did not have general acceptance in the field.

The Court held there is no such litmus test whether scientific evidence will assist the trier of fact (either a judge or a jury).  The Court does give some general principles in addition to Fed. R. Evid. 702.  A judge should consider: if it can be tested, if it is subject to peer review, what the rate of error is (if it is a study), and if there is a “general acceptance” within the scientific community. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993).

Back to the Sandretto case.

Although grounded in science, medicine is a profession that requires physicians to rely on their previous experiences and sound judgements.

Sandretto’s expert said that MRSA was the “unifying factor” because the surgeries that followed the infection diagnosis would not have been required if not for the MRSA infection.  PMH said there was no way to create that causal chain and wanted to throw out Sandretto’s expert.  The Court did not agree PMH.  PMH did not provide the court any scientific literature in its Rule 702 objection that would undermine the causation argument.  In lieu of scientific literature, PMH used two documents from the internet that contained disclaimers that they were not to be used for medical treatment.  Moreover, the sheets were unsigned and not attributable to any person.  Reliance on general, unsigned medical advice found on the internet is typically not permitted under Rule 702.

Sufficiency of the Evidence / Damages

PMH argued the 7+ million dollar verdict shocked the conscious and was not supported by the evidence.

What PMH is asking is for the judge to overrule the jury’s verdict through the legal maneuver called a remiittitur.  A remittitur is based in fairness or equity, and is typically used as a check by judges on civil judgements of juries.  Alires v. Southern Pac. Co., 409 P.2d 714, 720 (Ariz. 1966).

The amount of a damages award is ‘a question of peculiarly within the province of the jury, and such award will not be overturned or tampered with unless the verdict was the result of passion or prejudice.’

Sandretto v. Payson Healthcare Management Inc., No. 2 CA-CV 2013-0044 (Ariz. Ct. App. 2014) (quoting In re Estate of Hanscome, 254 P.3d 397, 401 (Ariz Ct. App. 2011)).

As I was saying earlier, it is the juries’ job in order to determine damages.  However, a court can intervene if there is some kind of fundamental unfairness with the amount of the award.  A judge can either make this determination on her own, or the verdict can be appealed as in the present case with Sandretto.

PMH argues that since Sandretto’s causation expert should not have been allowed it resulted in skewed judgements.  Because of the improper testimony the jury was improperly influenced the jury, it likely would have been less or nothing at all if the correct decision about the expert was made in the first place.

In the court’s analysis it looked at how many direct past, present and future costs Sandretto would have to endure because of the flawed medical treatment.  Sandretto said the knee injury would cost her about $3.5 million during the course of her lifetime.

In addition to direct costs that Sandretto incurs, she is also entitled for intangibles like pain and suffering.  The Court determined that Sandretto’s pain was real and compensation for pain and suffering is a very individual determination.  Reasonable people may differ on how much one should receive for pain and suffering, so the Court said it would not interfere with the jury’s assessment.

Amended Lawsuit Against Phoenix School of Law by Former Profs

Round two is already underway.  Federal Judge Susan Bolton allowed former Phoenix Law School Professors Michael O’Connor and Celia Rumann to amend their complaint.  Judge Bolton dismissed the original complaint because she viewed the complaint did not sufficiently state a legal claim.

The facts of the matter are Michael O’Connor and Ceclia Rumann were professor at Phoenix School of Law (PSL) and tenured respectively in 2010 and 2011.  Both were tenured until their termination in May 2013.  Both Professors were presented with a “letter of appointment” on May 3, 2013 which left several material terms undefined, and was a change from their previous tenure contracts. On May 20, 2013 PSL revoked the letters of appointment because it viewed the unresponsive Professors as rejecting their offer of employment for the following academic year.

According to the Profs, they school breached their tenured contract and violated the implied warranty of good faith and fair dealing.

The case is No. CV-13-01107-PHX-SRB.

*** During the course of the lawsuit Phoenix School of Law changed its name to Arizona Summit Law School as a part of a re-branding effort to coincide with a curriculum change.

Arizona Employment Law

Even though Arizona law is not asserted in the complaint, it is a good idea to have a legal background about it — after all, it is being litigated in federal court for the District of Arizona and contract law is the domain of the states, as there is not a federal contract law.  Even though it is being litigated in federal court, the court will most likely defer to Arizona state law when making its judgment.

Arizona is an at-will employment state. At-will employment is where an employer does not need to have “just cause” to fire an employee.  The employee can dismissed by an employer for any reason that does not violate public policy (generally discrimination statutes).  This is codified in the Employment Protection Act, Ariz. R. Stat. § 23-1501(A)(2)

2. The employment relationship is severable at the pleasure of either the employee or the employer unless both the employee and the employer have signed a written contract to the contrary setting forth that the employment relationship shall remain in effect for a specified duration of time or otherwise expressly restricting the right of either party to terminate the employment relationship. Both the employee and the employer must sign this written contract, or this written contract must be set forth in the employment handbook or manual or any similar document distributed to the employee, if that document expresses the intent that it is a contract of employment, or this written contract must be set forth in a writing signed by the party to be charged. Partial performance of employment shall not be deemed sufficient to eliminate the requirements set forth in this paragraph…

Under the act, an employee has a claim if the employer breaches the contract.  In the employment context, employee handbooks are recognized as a formal contract.  Usually, there is not any bargaining over the employee handbook unlike in typical contractual situations — it is a take it, or leave it scenario.  However, an employee has a chance to accept or reject the handbook via if she takes the job or not.

The statute indicates when both the employer and employee sign the employee handbook it becomes a binding contract. See Demasse v. ITT Corp,. 984 P.2d 1138, 1143 (Ariz. 1999).

Second Amended Complaint

Breach of Contract

As with the first complaint, one of the major points of contention is if the defendants breached the contract by using a letter of appointment instead of a tenure contract.

What is interesting in the Second Amended Complaint is Profs provide both a Tenure Contract from 2012-2013 academic year and the Letter of Appointment for the 2013-2014 academic year.

The Tenure Contract from the 2012-2013 school year is a typical two-page contract.  Exhibit B, is a partial copy of the Faculty Handbook for Phoenix School of Law explaining the basic rights and responsibilities of faculty.  The the tenure contract acts like an annual re-affirmation of the original employment contract.

Both parties acknowledge that § 2.25 of the Faculty Handbook states the form of the employment contracts (as a sample template with blanks needing to be filled in is provided).  What is not agreed upon is if the Letter of Appointment meets the “form and style” of the sample template provided in § 2.25.

The content of the Letter of Appointment is mostly similar to that of the Tenure Contract. Although the stated purpose of the Letter of Appointment is to “simplify the process.”  The Letter of Appointment is approximately half the length of the Tenure Contract, so it accomplishes it’s stated purpose.  It does this through referencing the employee handbook where items are explained in detail. While the Letter of Appointment reads, as a ‘letter’ to each professor, it contains the elements to meet the definition of a contract.  The letter contains the amount of pay, the pay period, general responsibilities, incorporates the Faculty Handbook for specific responsibilities, and mentions indicators used in faculty review.

The Professors argue that while it may meet the elements of a contract, it is not in the “form and style” of the sample template.  The school responds that it does not matter if small deviations are met as long as it is materially similar.

In her analysis, Judge Bolton agreed that there are no material differences between the content of the Tenure Contract and the Letter of Appointment.  Even though there may be small differences between the Tenure Contract and the Letter of Appointment, Judge Bolton says these do not affect the rights of the Professors, and thus do not affect the form and style. Judge Bolton seemed to imply that the structure could change as long as the rights and content are not affected, because she did not address the layout or particular wording of the documents.

It will be difficult to see how Judge Bolton will rule differently on the breach of contract in the Second Amended Complaint, unless Judge Bolton addresses the layout and wording of the Letter of Appointment.

Good Faith and Fair Dealing

The Profs also argue that the school broke the implied covenant of good faith and fair dealing.  A covenant is a promise in contracts to continually do something.  Covenants can be written into a contract.  The covenant of good faith and fair dealing is implied because it is not written into the contract.  It does not have to be in the contract because Arizona’s common law requires both parties in a contract to act in good faith.  Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 38 P.3d 12, 28 (Ariz. 2002).

Even though a violation implied covenant of good faith and fair dealing is a separate claim, it is dependent in part on the breach of contract claim.  If Judge Bolton finds that the school did not breach the contract, it is very difficult to argue how the school did not act fairly.

The Professors make a lot of claims about how they were treated unfairly for speaking out against the changes at the school.  The argument of a violation of the implied covenant of good faith and fair dealing would be stronger if the Professors claimed constructive discharge by the law school.

It appears Judge Bolton is reviewing a Motion to Dismiss the Second Amended Complaint.  I will post when the Court makes a determination.

Should a defendant’s conviction should be ended if he dies during a post-conviction proceeding?

The Arizona Supreme Court decided an interesting issue: whether a defendant’s conviction should be ended if he dies during a post-conviction proceeding.

The background is the defendant was tried and convicted in a jury trial of first-degree murder and attempted murder.  Upon appeal, the Arizona Supreme Court affirmed the conviction and the United States Supreme Court denied certioria.  Then defendant timely filed an Arizona Criminal Procedure Rule 32 petition.  However, before the Superior Court could decide whether to accept the petition or not, the defendant died.  Because of the defendant’s death, the Superior Court Judge dismissed the Rule 32 petition, the indictment, and the conviction.

The problem is  the defendant claimed ineffective assistance of counsel in the Rule 32 proceeding.  This argument may or may not have been persuasive — it is a very high standard to prove ineffective assistance of counsel.  However, procedurally, the defendant could not make the claim of ineffective assistance of counsel during the direct appeal.  Direct appeals are based entirely on record created at the trial court level. Since whether the counsel effectively did her job or not is not a matter that was argued in the trial court, it is an argument that cannot be made on direct appeal (claims that not made based entirely on the trial court record are referred to as collateral attacks).  The Arizona Supreme Court noted that:

“A Rule 32 petition exists ‘separate and apart from the right to appeal’ and is ‘a collateral attack upon the judgment.’ Thus, following a conviction, a defendant has the right to challenge the sufficiency of evidence and to assert any trial errors through direct appeal.” State v. Glassel, Cr-13-0060-AP ¶9 (2013) (quoting State v. Carriger, 692 P.2d 991, 994, 997(1984)).

The Arizona Supreme Court held the defendant received all of his constitutional rights and protections due to him because of the completion of the direct appeal, which is constitutionally guaranteed. Post-conviction relief is not constitutionally guaranteed, thus the conviction and the indictment would stand.

The problem I have with the court’s holding is the right to effective assistance of counsel is guaranteed by Sixth Amendment to the United States Constitution via Strickland v. Washington, 466 U.S. 668 (1984).  Reasonable effective assistance of counsel is guaranteed, even if post-conviction relief is not. The United States Supreme “Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.” Strickland v. Washington, 466 U.S. 668, 684 (1984).  However, nowhere in the Glassel opinion did the Arizona Supreme Court address the right to reasonably effective counsel is found under the Sixth Amendment and denying the defendant of the chance to make that claim, the Arizona Supreme Court effectively waived the defendant’s Sixth Amendment rights for him.

State v. Glassel, No. Cr-13-0060-AP (2013).

The Capital Criminal Process – Trial Through Federal Habeas