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PHOENIX -- Arizona will not be able to enforce controversial limits on medication abortions, at least not now.
With barely a month left in office, Gov. Jan Brewer is making a last-ditch effort to keep driver's licenses out of the hands of dreamers.
Not even waiting until President Obama gave his speech Thursday night, Maricopa County Sheriff Joe Arpaio filed suit in federal court seeking to block the announced plans to allow millions of people not in this country to remain and work here legally.
PHOENIX — Doctors who recommend marijuana to patients can't be charged with crimes even if they did not follow the procedures required by law, the Arizona Court of Appeals ruled Thursday.
The judges acknowledged that Robert Gear, a Phoenix naturopath with offices in several communities, had been charged with recommending the drug to a patient without having access to 12 months of her medical records. That is a requirement under the law.
Gear was indicted on charges of forgery and fraudulent schemes after saying on a form required by the Department of Health Services that he had, in fact, seen those records.
But Judge Patricia Norris, writing for the unanimous appellate court, said what Gear or did not do is legally irrelevant. She said the 2010 voter-approved Arizona Medical Marijuana Act specifically bars criminal charges against any physician who certifies that a patient is likely to benefit from the drug.
Norris said a contrary ruling would be bad public policy.
"Criminal scrutiny and prosecution of physicians for certifying patients for medical marijuana use would have a chilling effect on the voluntary participation of physicians, and, thereby, hinder qualifying patients' efforts to obtain competent medical advice regarding medical marijuana, its medical risks, and its alleged therapeutic and palliative benefits,'' the judge wrote.
Thursday's decision upset Navajo County Attorney Brad Carlyon
"I'm just disappointed there are no consequences for doctors that don't follow the rules on how to prescribe a medical marijuana card,'' he said.
But Kimberly Kent, the attorney who represents Gear, said the law is clear. She said a doctor who determines marijuana is appropriate for a patient is immune from criminal prosecution.
Kent said it's a separate question of whether Gear might face some discipline, either by the health department or the board that regulates naturopaths.
Arizona law allows those with certain medical conditions to obtain up to 2 1/2 ounces of marijuana every two weeks. But they must first get a written recommendation from a doctor.
Court records say that a confidential informant working for the county's drug task force went to Gear to get such a recommendation. She completed a medical questionnaire and medical records statement provided by Gear's staff and disclosed information about her medical history and physical condition.
She also said she had seen other doctors in the past 12 months but did not "have a complete set of medical records'' with her. But she agreed she would either request that her records be sent to Gear or would bring them to her on her next visit.
Based on his examination of the woman, Gear certified the woman for medical marijuana use. He also completed a form which said he had "reviewed the qualifying patient's medical records, including medical records from other treating physicians from the previous 12 months.''
Norris said there is no legal basis for the charge.
She said the 2010 law provides immunity for any case in which a doctor certifies that "a patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana.'' And Norris said that is exactly what Gear did.
The question of whether he was not truthful on the form does not strip Gear of that immunity, she said, particularly as that requirement to review 12 months' worth of medical records is not required under the law but instead a regulation by the health department.
"Dr. Gear did not lose his statutory immunity merely because he completed the mandated DHS form,'' Norris wrote.
Beyond that, she said the immunity extends beyond delivering the certification sought by the patient.
"It also encompasses a physician's actions in preparing and completing the written certification,'' Norris said.
State Health Director Will Humble, whose agency enacted the rules about the medical records and designed the form, declined to comment on Thursday's ruling.
Follow Howard Fischer on Twitter at @azcapmedia.
Tom Horne will pay $10,000 out of his own pocket to end an investigation into whether he illegally used staffers at the Attorney General's Office in his unsuccessful reelection campaign.
Arizona's charter schools are not entitled to another $135 million of taxpayer funds, the state Court of Appeals ruled Tuesday.
A Gilbert spa owner wants the U.S. Supreme Court to rule she has a constitutional right to have fish nibble on her customers' toes and charge them for that.
PHOENIX -- Close to one out of every seven votes cast this year will come from Hispanics, according to a non-partisan organization promoting Latino turnout.
Close to one out of every seven votes cast this year will come from Hispanics, according to a non-partisan organization promoting Latino turnout. And group members predict that large percentage of them will vote for Democrats — but not necessarily because of what those candidates offer, but how Republicans are campaigning.
Lawyers for Jodi Arias will begin making their case Thursday that the convicted murderer should be spared the death penalty for the brutal 2008 killing of her former boyfriend.
PHOENIX -- Conceding a court ruling striking down gay-marriage bans in Idaho and Nevada is binding here, attorneys for Arizona state are relying on a largely technical argument in a last-ditch effort to salvage this state's own prohibition -- at least for awhile.
In legal papers filed Thursday, Attorney General Tom Horne, his staff and outside attorneys said they disagree with last week's ruling by the 9th U.S. Circuit Court of Appeals overturning virtually bans in Nevada and Idaho that are virtually identical to those in Arizona. In that case, the appellate judges said laws restricting marriage to one man and one woman illegal violate the constitutional rights of gays based solely on their sexual orientation.
In fact, they conceded that appellate ruling is binding on U.S. District Court Judge John Sedwick -- and probably governs what the judge has to rule in Arizona
But Horne instead is seeking to buy time in hopes that somehow the full appellate court -- or perhaps the U.S. Supreme Court -- will decide otherwise.
Heather Macre, attorney for one group of plaintiffs seeking to overturn the Arizona ban, said the state's decision to try a procedural move and not to try to challenge the underpinning of last week's appellate ruling is not surprising.
"The 9th Circuit dismantled all of their arguments,'' she said.
But Jennifer Pizer of Lambda Legal Defense and Education Fund, who represents other challengers, was less charitable in her reaction. She described the state's filing as "a white-knuckled grip on the last remaining shred on the last remaining straw of a legal position where they've conceded that the 9th Circuit decision is binding.''
What Horne is arguing to Sedwick is that the appellate court issued but then withdrew its "mandate'' to Nevada and Idaho to start issuing marriage licenses. And while both states have, in fact, started allowing gays to wed, Horne told Sedwick he cannot legally rely on the 9th Circuit ruling to void the Arizona law -- at least not yet.
In fact, Horne called any effort by Sedwick to void Arizona's laws based on the 9th Circuit ruling "a gamble.''
Pizer, however, said Horne and his staff have not identified a single issue that would somehow make Arizona's ban on gay marriage legally different than the ones already overturned.
"And yet these lawyers working for Tom Horne are blocking the door to prevent this particular group of people from being able to enter the room where everybody else lives,'' Pizer said. "It's hardly an honorable position for the state.''
Horne referred all calls to Rob Ellman, the state's solicitor general, who works for him. Ellman declined to comment.
The Alliance Defending Freedom, a Christian-based law firm which has helped the state defend the law, has consistently referred all calls to Horne.
That legal point on which Horne and his staff are hanging their hopes stems from the fact that last week's ruling about Idaho and Nevada laws was issued by a three-judge panel of the appellate court.
There are interests in those states who want to preserve a ban on same-sex weddings. So they want that decision reviewed by the full appellate court.
The U.S. Supreme Court last week already refused to provide an emergency stay of the 9th Circuit ruling while the foes of same-sex marriage prepare an appeal.
That should have ended the matter. But it didn't.
In a brief order earlier this week, the appellate court said it would "afford the state a second opportunity to obtain an emergency stay of our order from the Supreme Court, even though we see no possible basis for such a stay.'' That leaves full and final implementation of the 9th Circuit ruling in legal limbo.
The move may end up being, at best, a stalling tactic.
Every other federal appeals court in the country that has looked at the issue has concluded that state laws banning same-sex marriage are unconstitutional. And each and every attempt to get the Supreme Court to intercede -- or at least delay the order -- has been spurned.
Sedwick already has tipped his hand a bit, ruling in a related issue that it appears Arizona's 2008 voter-approved ban on same-sex weddings and older state statutes violate constitutional rights.
Less clear is what will happen the moment he rules, assuming he sides with challengers.
Pizer said that unless the judge also agrees to stay the effect of his order, that would allow same-sex couples to immediately go to county clerks and demand marriage licenses. And with Arizona having no waiting period, that could mean weddings shortly thereafter.
Macre was more cautious in her analysis, saying a lot of it depends on exactly how Sedwick words his order. And if nothing else, she said county clerks are not prepared to issue same-sex licenses.
PHOENIX (AP) — The federal judge considering challenges to Arizona's same-sex marriage ban says the outcome appears to be dictated by an appellate court's ruling overturning bans in two other states.
U.S. District Judge John Sedwick said in an order issued Thursday that the sides in one of the Arizona cases may submit briefs discussing the 9th U.S. Circuit Court of Appeals ruling that said gay marriage prohibitions in Nevada and Idaho violate equal protection rights of same-sex couples.
Arizona is part of the 9th Circuit, and Sedwick said the appellate court's ruling in the other states apparently "controls the outcome" of the Arizona case.
The 9th Circuit's ruling "appears to require" that Sedwick allow gay couples to marry, the judge said in a one-paragraph order. He gave the sides a week to file responses.
William Knight, a lawyer representing gay couples, said their brief will be simple: "It's clear that the law compels the court at this point to rule in favor of marriage equality."
Stephanie Grisham, spokeswoman for Arizona Attorney General Tom Horne, said the state also will file a brief in response to the judge's invitation. She declined to discuss what it would say.
The state in its June 11 motion argued that it would demean the democratic process to overturn Arizona voters' 2008 decision adding the ban to the Arizona Constitution.
Sedwick in a September ruling had already signaled that Arizona's ban might not hold up to a constitutional challenge.
In a ruling in the other pending challenge to Arizona's gay marriage ban, Sedwick said the surviving spouse of a plaintiff who had died could be listed on the death certificate.
"The court has not yet decided whether there is a conflict between Arizona law and the Constitution, but the court has decided that it is probable that there is such a conflict that Arizona will be required to permit same-sex marriages," Sedwick wrote in the Sept. 12 ruling.
Both Arizona challenges were filed this year, but several months apart and legal briefing of the one involving the order Thursday is further along procedurally than the other.
Sedwick was nominated to the federal bench in 1992 by President George H.W. Bush.
Lawyers in the penalty-phase retrial for convicted murderer Jodi Arias ended another day of court proceedings without choosing a jury, and the hearing won't resume until next week.
Jury selection resumes in the penalty retrial of convicted murderer Jodi Arias as prosecutors try again for a death sentence.
A court fight between the Secretary of State's Office and a “dark money” group could determine how quickly reporters and others get records they request from public agencies.
Gov. Jan Brewer says terminally ill patients should have the right to use drugs which have not yet been approved — and may never be approved — by federal agencies.
Jodi Arias is set for a court appearance later this week ahead of the start of jury selection in her penalty phase retrial.
A judge Monday refused to lift restrictions on camera coverage of the penalty phase of Jodi Arias' retrial.
Most Tempe residents will never come in contact with the University Lakes Precinct Justice of the Peace. The JP has jurisdiction over misdemeanor and traffic crimes committed at Arizona State University and outside of the Tempe City limits and a laundry list of civil law matters. JPs aren't required to be attorneys.
Jodi Arias is due back in court for a hearing ahead of her planned Sept. 29 penalty phase retrial.
Attorney General Tom Horne is asking the U.S. Supreme Court to rule that Arizona lawmakers can legally restrict the right of women to a medication abortion if they have “justification” to do so and other options remain.
Saying they waited too long to ask, attorneys for Gov. Jan Brewer told federal appellate judges they should reject a plea to force her to start issuing licenses right now to dreamers.
Jodi Arias has returned to court seeking a delay of her planned Sept. 8 penalty phase retrial.
Attorneys for dreamers are asking a federal appeals court to make good on its ruling that their clients are entitled to driver's licenses while they challenge Jan Brewer's interpretation of Arizona law.
An Arizona judge has denied a request by one of Jodi Arias' attorneys to quit, setting the stage for Arias to represent herself at the penalty phase of her trial.