In a previous blog entry, I did mentioned that the Arizona Supreme Court made the right call on Torres v. JAI (2021). The case regarding the assignment of liability when bars over-serve customers. The AZ Supreme Court ruling is only valid because the decision conforms to previous case precedence. For example, in the logic of Patterson v. Thunder Pass (2007), the court waved liability the bar made a notable effort to ensure that the inebriated patron arrived home safely.
However, Torres may adhere to the contemporary reasoning of the state court, which is only a natural corollary of a distributing trend in adjudication beginning in the early 1980s. The modern jurisprudence in Arizona addressing over-serving liability dates to Ontiveros v. Borak (1983).Ontiveros marks a distinct departure from Common Law immunity:
“….At common law a liquor vendor was not in any way liable to an intoxicated customer who injured himself because of his condition, nor was he responsible for injuries to innocent third parties resulting from his inebriated patron’s negligent acts. (King, 1966,p.252)…”
The position before Ontiveros upheld by the Arizona courts affirmed the traditional Common Law interpretation. As evident in Pratt V. Daly (1940), were “… it was recognized both within and without Arizona that Pratt v. Daly had approved and adopted the common law rule of nonliability..” (para 9). Ontiveros effectively gutted the Common Law logic of protecting tavern owners from undue liability instances of over-serving intoxicated patrons. Although, the verdict in Ontiveros is easy to accept on purely rationalistic grounds; because the bar served the patron 30 beers!
A law professor at the University of Central Florida., F.E. Guerra-Pujol, brought it to my attention that we need the legal doctrine of proximate cause. In the absence of clearly defined limits on assessing liability, the chain of liability could stretch out infinitely. Unfortunately, unjustly assigning blame to distant actors in the “alcohol supply chain”. Under this logic, Torres might conflict with the proximate cause doctrine. After all, once the customer arrives home safely, why would the bar still hold any responsibility? In Torres, the intoxicated customer caused the accident after arriving at his residence. It may be fair to suggest that there was enough distance between the events to absolve JAI of liability from the stance of this doctrine. But this does not consider existing state statutes and previous in-state case law.
The Arizona Supreme Court’s recent decision Torres v. JAI Dining Services examines the issue of liability in the case of restaurants and bars over-serving alcoholic beverages. A patron of the Jaguar Club in Phoenix got ejected from the club after drinking for hours. He subsequently drove to his brother’s house to sober up and then was dropped off at his home. The intoxicated patron slept for approximately an hour before agreeing to drive his girlfriend home. Unfortunately, he was still inebriated when bringing his girlfriend home, striking a car, killing both occupants inside the vehicle. A jury rendered a verdict that the club and the driver were both liable for damages. JAI was able to get this ruling reversed by the Court of Appeals before the case reached the Arizona Supreme Court.
However, JAI attempted to challenge this ruling since the intoxicated patron arrived safely at his home and still decided to drive. JAI argued that it was similar to driving drunk after drinking at home. In an analogous case, Patterson v. Thunder Pass, the staff made adequate arrangements to ensure the drunk customer got home safely. JAI made no such arrangement; since the ruling Ontiveros v. Borak, state courts no longer recognize immunity from over-serving. Overall, the Supreme Court’s decision to overturn the Court of Appeals reversal on JAI’s liability was a good call.
The Arizona Supreme Court has finally settled the controversy regarding the legality of setting uniform rates for consolidated water districts in the October 2021 ruling Sun City Home Owners Ass’n v. Arizona Corp. Commission. The Sun City HOA claimed that the setting of uniform rate was an act of discriminatory pricing, violating Article 15, Section 12 of the Arizona Constitution. After being compared to the other communities serviced by EPCOR for municipal water services, Sun City has historically had some of the lowest operational costs. Most municipalities experienced a decrease in rates, while Sun City was the exception. The increase in the price of water service offsetting the cost to other communities functions as cross-subsidy.
The state Supreme Court did not rule in favor of the HOA, but there are further ethical and economic concerns to evaluate. For one, the rate-setting power conferred by the state Constitution (Article 15, Section 3) to the ACC mirrors the congressionally allotted privilege of chevron deference at the federal level. This judicial doctrine does differ from the powers allocated in the Arizona Constitution; chevron provides judicial power to bureaucratic agencies; in contrast, the state permits quasi-legislative authority, a rule-making power that is inappropriate for a bureaucratic agency to wield. Hence why we have a legislature. Economic exchange determines prices (the law of supply and demand) and not the edicts of lawmakers or bureaucratic agencies. Town governments and EPCOR need to negotiate the rates, not state agencies.
It appears as if the concept of a stratified market for legal services, may have a future in the state of Arizona. Well… sort of. Back in October 2020, the state legislature passed a measure that allows nonlawyers to own law firms and on a limited basis represent clients. This alteration to Arizona state law came in the form of ACJA 7-209 (Alternative Business Structures). It could be argued that the loosen of these restrictions have more benefits than drawbacks. Like most forms of occupational licensing, it does more to inhibit the interests of the consumer than it does advocate for it. Concerns linger about legal services being commodified, resulting in perverse incentives driving law firms rather than acting in accordance with the best interests of the clients. It has been cited that a firm owned by business interests would be ignorant of the “culture” encompassing legal services. Such as law firms heavy on investor input may not take up pro bono cases. Are these concerns of twisted incentives guiding investor founded law firm legitimate or merely perceptions facilitate by many of the fallacies implicit in anti-market bias.
Does a founder of a tech firm needs a degree in Computer Science? Not necessarily. So why should be incredulous of the fact that a law firm is founded by a businessman? Yes, legal services do entail a lengthy array of ethical obligations that may not be required in other service professions. State law does mandate that at least one lawyer works at the firm for it to be legally recognized. That lawyer would be the influence guiding how to the legal philosophy of the business. The operative phrase in this sentence is business. Making it kind of absurd to preclude a seasoned entrepreneur with some insight into legal services from engaging in forming such an enterprise. Due to merely not having a degree and having based a state-sanctioned exam. Any shrewd businessman regardless of the law would hire on a consultant a knowledgeable consultant to help fine-tune operations. In the case of a law firm, it would probably be a veteran attorney.
The qualms regarding a nonlawyer owned law firm not being privy to the “culture” of legal services is another perplexing criticism. Any proprietor in any service industry worth their weight in salt will “learn the rules of the game”. If you want to stay in business, you are going to have to become acclimated to the customs and norms of the industry. If not, under entrepreneurial natural selection, the business will fail. The successful law firms will be
self-selected through a process of consumer sovereignty. Those firms completely driven by an ethos of profit-above-all will crumble and be victims of their avarice. If the customer does not come first you cannot possibly succeed. Part of that would be adhering to customs such as pro bono cases for low-income clients. One only needs to briefly walk down the aisles of Costco to see that the concept of pro bono services hasn’t been lost on private industry. The mundane example of the omnipresent free samples of food. Some may argue that the scale of a free sample of salsa cannot compare to that of free legal services. They are both predicated on the same principle, reciprocity. Money comes and goes. Your pro bono bankruptcy today may be keeping you on retainer tomorrow once they hit the lottery. It makes business sense to sometimes give out free services.
Some of the most puzzling critiques of this legislation revolve around allowing nonlawyers to represent clients in legal matters. Creating the potential of a subclass of legal work, paralegals can presents clients for “simple civil and criminal cases”. Hypothetically, creating a tiered market for legal services. Those who cannot afford to hire a bar accredited lawyer would have to settle for the more limited expertise of paralegal. Forming the foundation for an archetypical socio-economic objection to this policy. This ignores the fact that this greatly benefits economically disadvantaged defendants and paralegals. If an individual is accused of a crime and cannot afford a reputable lawyer they either must represent themselves or be provided a bottom-rung public defender. Hiring the paralegal at a rate lower than that of an accredited lawyer is a far superior option than the public defender or self-representation. A well-trained and diligent paralegal is vastly superior to self-representation. Odds are the paralegal has a much stronger command of the law than the defendant. The paralegal also is a better option than the public defender. Public defenders have a reputation for providing low-quality legal services. They are often overworked and earn significantly less than the average lawyer. Given the incentive structure of a public defender, enlisting their help in legal matters is a recipe for subpar results. No one who is underpaid and overworked is going to have the drive to overachieve. A wide-eyed and quixotic recent law school graduate may be eager to join the fight to represent the economically dispossessed. After years of stress, low pay, and disenchantment with bureaucratic institutions and humanity could make even the most bleeding-heart crusader jaded. In contrast, a paralegal providing legal representation would most likely do so as a side-job. Undertaking such a “gig” to supplement their regular income could be viewed as advantageous. Versus the public defender drowning in law school debt and disillusionment.
Placing tight restrictions on who can provide legal services is nothing more than a broad form of occupational licensing. Occupational licensing gives the initial impression of protecting the best interests of the consumer. In theory, limiting who can practice law is intended to shield the customer from the consequences of malfeasance. It limits the pool of representatives the poor can hire for legal defense. It also reduces opportunities for paralegals to earn some side cash. It outright eliminates the potential to gain some hands-on experience if they one day aspire to become a lawyer.
Ever since the number of COVID-19 cases began to grow in the United States the debate over whether to mandate wearing masks in public has raged on. Frequently devolving into a debate over political ideology rather than a discourse based on hard science. Naturally, those who believe mask-wearing to be an effective precaution against spreading the virus favor compulsory laws enforcing this practice in public. However, could it be possible that people still opt to take precautionary measures even in the absence of fine or other penalties? Better yet, couldn’t owners of private institutions such as stores, restaurants, and entertainment venues implement their preventive measures as conditions of patronizing their establishment? After all, the incentives are present to want to avoid any unnecessary risks and to keep their customers healthy to ensure a steady stream of business in these uncertain times.
In the state of Arizona, the issue of mask-wearing mandates has been left up to the local governments. Most municipalities have opted to require masks while occupying indoor venues at the risk of facing a hefty fine. Back in June the city of Phoenix purposed a $250.00 for individuals repeatedly refusing to wear a mask. The suburb of Chandler, Arizona imposes a fine of $100.00 or 30 days in jail for mask-related infractions. Residents and visitors in the towns and cities located in Pinal County are not subject to mask requirements but are strongly encouraged to wear masks. One would assume that in these communities that are immune from such restrictions that the image of bare-faced shoppers must be a ubiquitous scene in the local grocery store. Such an assumption would be incorrect.
Even in the absence of formal constraints, most stores require that all customers wear masks. Generally, posting a sign on the front door forewarning prospective patrons of this precondition. Not only are the stores and eateries of the communities of towns such as Maricopa, Casa Grande, and so on filled with mask-wearing customers, but many establishments are taking measures not required by any municipality in the state. Employees are constantly cleaning. The local grocery store has never looked more pristine. Frankly, many of these changes in the cleaning and sanitizing schedules of the local business are long overdue. These shrewd business owners are proactively responding to the potential concerns of their clients. Anticipating that customers may avoid doing business if masks are at their brick-and-mortar location they have elected to require masks. In addition to urging patrons to wear masks, they also are making concentrated efforts to increase sanitation efforts. Even placing markers indicating the presence of six-foot gaps to maintain social distancing. The smell of bleach and other disinfectant products fill the entryway of the grocery stores. The local Walmart is even wiping down and sanitizing the carts! A sight that few would have ever predicted a year ago. All these preventive steps are taken without any laws, penalties, or ordinances. Completely implemented through apolitical channels.
This micro-level self-governance on the part of local business propitiators and franchisees demonstrates the power of profit and loss mechanisms. Due to the business owners having a stake in the company they own and operate it is in their best interest to put the customers first. If the customers are comfortable, happy, and healthy it will be mutually beneficial for both parties. The customer will continue to obtain the goods and services they need and want. Simultaneously, the stores and restaurants will continue to receive business which will keep them afloat. Establishments that are insensitive to the needs of their customers will invariably see a dip in sales. This would hold even if we were not amid a pandemic. The entrepreneur must adapt to the present climate. That may mean investing in more cleaning supplies and sanctioning mask-wearing requirements for their establishment. Business proprietors who do not respond to customer concerns about the virus will be effectively punished by market forces. Through a sullied reputation, lackluster sales, and even insolvency. While constrained by federal, state, and local laws business owners by their possession of the enterprise still retain an immense amount of authority to create the rules governing their store. Having the ability to formulate the policies that govern the direction of the business enables them to better serve their customers. Displaying how to profit loss mechanisms can direct precautionary measures even in the absence of laws.
Business proprietors responding to these market pressures is an example of polycentric decision-making. A system where multiple “decision-making units” with some degree of independent action subscribing to the same set of rules. Filtering the development of safety measures through the government attempts to use a one-size-fits-all approach to the pandemic. Whereas, individual shop owners can tailor their precautions to the specific concerns of their regular customers. Versus obtusely applying rules that may not even be effective or pertinent to how COVID-19 is impacting the region. Direct customer input about the absurdity of funneling customer traffic through two entries instead of three, can be an example of ground-level adjustments that can be made through business owner governed safety procedures when compared to those that are government-sanctioned. Avoiding the red tape and lethargic process of passing legislation or town ordinances provides fluidity that is necessary in dynamic times. A fluidity that is lost in the typical overarching and top-down approaches that are generally favored in regulations.
Those cynical of the arguments that favor market pressure over formal regulation underestimates the power of the invisible hand. In jurisdictions where there are no regulations in forcing mask-wearing store owners not only require masks but are going the extra mile to ensure sanitary conditions for their customers. Most skeptical of the market being able to push such strives towards private solutions to the COVID-19 outbreak tend to cite avarice on the part of business owners. Without formal regulations, most will skimp on investing in extra precautionary measures due to the additional cost of enacting such changes. The willingness to make such changes is what separates a prudent businessperson from a fool. The long-run profits from investing more in meeting alleviating the concerns of your customers will quickly outpace the minor cost. Making a refusal to independently adjust to these changes shortsighted.
Let’s say hypothetically, I am a drug dealer selling fentanyl pills. One of my customers owes me an exorbitant amount of money. I conclude that I need to make an example of this individual. I cannot perpetuate the image of being a pushover and get very far selling opioids on the black market. Beyond that, there isn’t any legal recourse for recouping my money. I don’t believe there is a claims court in the United States that would back me on this one. I need to kill my customer over this nonpayment issue. I plan to meet this gentleman, let’s call him Bob, by a desolate farm located on the Ak-Chin Reservation, just outside of Maricopa, Arizona. Bob is under the impression that we are meeting to discuss a “peaceful” resolution to our dispute over the pills. When we meet, Bob extends his right hand for a handshake. I clasp onto Bob’s right hand while concealing a switchblade in my left hand. As Bob pulls me towards him for a “pound-hug” I stab him five-times in the abdomen before he can even say “What’s up”. I then quickly vacate the scene of the crime. Leaving Bob to die. Then days later I am apprehended by the authorities.
Does the question become which law enforcement agency took me into custody? After all, the astute observer would notice this crime transpired on tribal land. As a legal matter when it comes to crimes committed in “Indian Country” the situation becomes quite convoluted. The core complexity of American Indian Law (law about the relationship between the federal government and the sovereign tribes) is the dispute over jurisdiction. However, depending on the location, the nature of the crime, and the tribal status of the persons involved will sway the needle on which law enforcement agency needs to intervene.
Determining jurisdiction for crimes committed in “Indian Country” used to be a simple matter. During the colonial period, the tribe had authority over any crimes committed within a tribal territory (p. 103). After the end of the Revolutionary War, the federal government assumed jurisdiction over crimes by non-Indians perpetrated against Indians on tribal lands. As a means of creating a “buffer” between the competing interests of the two populations (P.104). The federal authority of crimes committed in “Indian Country” was formally extended to the U.S. government through the Federal Enclaves Act. Over the years have undergone various statutory revisions (P.104). Per William C. Canby Jr. the ruling on Ex parte Crow (1881) set the precedent pattern for federal authority being extended in cases of Non-Indian on Indian crime being addressed by the U.S. government. Indian on Indian crime being handled by tribal governments (P.104). The Supreme court initiated this pattern of judicial decision making through ruling that the Enclaves Act excludes federal intervention in Indian on Indian crime. In the Crow case, the involved parties were both of tribal affiliation and the shooting transpired on the Great Sioux Reservation. Placing jurisdiction squarely on tribal authorities.
In reaction to this ruling, congress then went on to pass the Major Crimes Act. Which extended federal authority to seven crimes even if they were committed on Indian soil (p. 105). Chief Justice Marshall’s ruling on Worcester v Georgia set the tone for tribal jurisdiction for the next fifty years (p.108). In this case, George residents were living within the bounds of tribal land without proper permission. Marshall struck down any action on the part of the state government noting it was outside of their legal authority. Stating on Cherokee land “… the laws of Georgia can have no force…” (p.109). This decision was held until fifty years later when the criminal jurisdiction question become muddied. While the matter of jurisdiction more clearly defined for Non-Indian on Indian crime and vice versa on tribal land, what about Non-Indian on Non-Indian crime on tribal land? Would the tribal authorities have the jurisdiction to punish the offenders?
This leads us to the 1881 case of United States V. McBratney. A case where a Non-Indian man killed another individual who did not have any tribal affiliations on the Ute Reservation in Colorado. Surely the tribe would have authority over this crime? If not the tribe, a division of federal law enforcement due to the federal government’s guardianship of the tribal nations? The Supreme Court saw the situation in a different light. Departing from the previously established judicial conventional wisdom. The high court ruled that federal authority could only exercise legal jurisdiction “over places where they have exclusive jurisdiction” (p.110). This unorthodox ruling was based upon the premise that Colorado was to be admitted to the Union on “… equal footing with the original states…”. Meaning that on Non-Indian on Non-Indian crime, Colorado’s laws extended throughout the boundaries of the state. This also includes the Ute Reservation (p.110). Needless to say, detractors criticized this decision because it conflicts with the precedence established in Worcester V. Georgia (p.110).
After I killed Bob, I was arrested and tried in court by the state of Arizona. Since neither Bob nor I were a member of any recognized tribes. If I was under the impression that committing the crime on the reservation would save me from state persecution, that was a foolish assumption. However, considering the rural terrain of the reservation ,it was the prime location to dispose of a body.
Bill HB 2608 is nothing more than a thinly veiled ploy to keep third-party candidates off the ballot. The bill passed back in 2015 greatly increased the required of signatures for nomination. Meeting the qualifying numbers would surely be a breeze for Republican and even Democratic contenders. What about Libertarians or even aspiring candidates in the Green Party? This measure effectively narrows the scope of options to the two main parties.
The greater of two evils is still evil. Overall, this bill was a calculated move by the Republican party. Some pundits have even pointed to this piece legislation as a countermeasure addressing Libertarians siphoning votes from the GOP. Clearly demonstrating the incentives behind passing HB 2608, retaining power. The Republicans have their tentacles firmly wrapped around the populated central region of the state. Democrats have their strongholds in Flagstaff and Tucson. Apparently, there isn’t any room in Arizona for a third option. Not necessarily by choice by rather by design. Making the whole notion of “democracy” questionable at best. For the Republican party to feel threatened by Libertarians is absurd and bordering on paranoia.
For an effective democracy to exist we need more than two questionable choices on the ballot. Granted, most political parties on the fringes are about as organized a clown car traffic accident. Let these candidates fail on their own merits versus being stopped by institutional barriers. Especially when the motives for erecting these barriers are shamelessly opportunistic.
This essay will present something of a heterodox argument for jury nullification. It will not rely on Constitutional, Common law, or case precedence. Nor will it rest on a philosophical refutation of enforcing unjust laws. It will be based upon a specified contingency under which the impact of juror bias has a negligible impact on the verdict. The scenario in which this premise is applicable is limited to a provincial window of conditions. Some crafted by circumstances and others shaped by state law. In the demonstrated hypothetical example, whether the juror excuses themselves from the case due to bias or motions to not indicate the suspect (even when a probable cause has been established).
As the previous paragraph has hinted, the contingency is specific to grand jury proceedings. The function of a grand jury is not determining guilt but rather based upon witness testimony if there is a strong likelihood that a crime has been committed. The job of the jury is to make a probably case determination based upon the evidence. Essentially, the jury helps the state ascertain if there is enough evidence to pursue charges. When you have been called to serve on a grand jury you are not reviewing just one case. Typically, you convene weekly and review a multitude of various cases throughout a couple of months. Differentiating this process from that of a criminal trial. Due to the variety of potential cases a juror will decide on, the judge tends to be more lenient in the jury selection process. Being biased towards drug cases for, for example, is not automatic grounds for disqualification for jury duty. Rather you are requested by the judge to excuse yourself from that specific case. Then rejoin your fellow jurors on the next case. Making grand jury hearings quite a bit different than a criminal trial.
In the state of Arizona, grand jurors are read the daily admonitions at the beginning of each session. The admonitions are essentially a reading of state statue 16A A.R.S. Rules Crim.Proc., Rule 12.2:
Rule 12.2. Grounds to Disqualify a Grand Juror
A grand juror is disqualified from serving in any particular matter if the juror is:
(a) a witness in the matter;
(b) interested directly or indirectly in the matter under investigation;
(c) related within the fourth degree by either consanguinity or affinity to a person under investigation, a victim, or a witness; or
(d) biased or prejudiced in favor of either the State or a person under investigation. .
This statue is a means of preventing juror bias influence the probable cause ruling. I particularly take issue with part (D). I believe that part D only is applicable if the individual is prejudiced towards the interest of the state. From purely a mathematical standpoint, it does matter if I excuse myself or motion to not indicate the subject under investigation. Both operate in favor of the suspect.
Grand Jury Ruling:
Crime : Possession of Marijuana (Class 6 felony in Arizona) . Possession of Drug Paraphernalia (plastic baggie containing Marijuana)(Class 6 felony in Arizona) .
Scenario #1: True Bill- 15/1 ( One juror opted to vote against indictment. Did so on grounds of the Marijuana laws in Arizona being unjust. In other words, they actively engaged in juror nullification.)
Scenario #2– True Bill- 15/0. (One juror opted to be excused from the hearing due to their beliefs about Marijuana use).
Does either action truly influence the results of the ruling? No. This should be self-evident to anyone with even the most rudimentary math skills! If it does not skew the results of the ruling from a mathematical standpoint, why would this be problematic? Voting against indictment and excusing yourself has the same numeric impact. It is similar to what people were saying back in the 2016 presidential election. ” Don’t vote third-party, because you are throwing away your vote.” or ” If you vote third-party that is just another vote for Trump/ Hillary (depending on which side of the fence you were on). It is a similar principle from a numeric standpoint. Ideologically the consequences are quite different (disclaimer: I am third-party voter).
The fact that Rule 12.2 explicitly disqualifies those biased towards the suspect is absurd. As demonstrated above, the numbers do not change. Excusing myself from the hearing is due to bias has the same numeric impact as opting to drop the charges. It could be argued that excusing yourself from the case isn’t doing the right thing, but is rather a legally enforced formality. To the best of my knowledge, no one else in the state of Arizona has commented on this paradox. I am surprised by this due to the simplistic nature of this observation. Nevertheless, what is the point of refraining from engaging in juror nullification if it will have the same outcome as excusing ourselves from the case?
Complying with the part D clause of Rule 12.2 is the epitome of mindless legal positivism. It does not take into consideration the actual results of the juror’s self-removal from the hearing. It functions as a codified deterrent from engaging in jury nullification. A practice that has been long defended morally and in common law. It also has historical precedence for combating unjust laws. Such as the Fugitive Slave Act of 1850. I would suggest that it is fair to wanting down-vote levying two felony charges against someone for possessing 1 gram of pot. Above all, a victimless crime.
Please keep in mind the contingency of this argument is self-limiting. It only applies to the specific conditions cultivated by the unique conditions of grand jury hearings and Arizona state law. Please note that this observation of compliance with part D of Rule 12.2 is only applicable to bias in favor of the suspect. The numeric impact has the opposite effect if the juror is biased in favor of the state. I cannot justify such actions on the grounds of the numeric argument.
Contingencies for the Numeric Grand Jury Paradox:
Only applicable to Grand Jury hearings.
2.Only applicable to Arizona state law or similar statues having specific conditions for juror disqualification.
This theory is only applicable to clause D of Rule 12.2. Maybe applied conditionally.
It is only applicable clause D if the juror in question is biased in favor of suspect.
The bias towards the suspect is only applicable to the paradox if it is on moral grounds. Only if the juror either takes issue with the law or how the law is being applied to the suspect.