The Arizona Supreme Court is Coming to ASU

On February 22, the Sandra Day O’Connor College of Law at Arizona State University will host the Arizona Supreme Court oral arguments. Information on the oral arguments and case briefs are posted below.

Argument Format

Both parties are allowed 20 minutes to present their argument. The parties may allot some of their time for rebuttal. Following the oral arguments, a 20-minute Q&A session will be held. Last year’s Q&A session had questions ranging from “how does your background play in to deciding a case?” to “I’m a first year with no idea what type of law to practice—please help.”

The Cases

10:00 AM
State v. Wien (Henderson/Goodman)
This case involves a challenge to the 2002 Prop 103 amendment, which extended nonbailable offenses to crimes of sexual assault.
AZ Supreme Court’s Brief
Thomas Grimes’ Summary of the Arguments

10:45 AM
State v. Maestas
This case is centered around Arizona’s medical marijuana policy, which competes with the criminalization of marijuana at the federal level.
AZ Supreme Court’s Brief
Brandon Cartwright’s Summary of the Arguments
For even more context, here’s a Phoenix Sun Times article on the case.

What to Watch

It will be fun to gauge the temperature of the bench. A hot bench involves the court participating in the oral argument by asking questions and challenging the lawyer. A cold bench will let the lawyer present his argument with little or no feedback. Think Judge Judy as opposed to Clarence Thomas. The current justices frequently interrupt oral argument and challenge lawyers, leading to entertaining interactions.

The Makeup of the Supreme Court

The Supreme Court of Arizona is made up of 7 justices: 1 Chief Justice, 1 Vice Chief Justice, and 5 Associate Justices. Justices are appointed by the Governor from a list provided by a bipartisan commission. After their appointment, justices must stand for a retention election at the 2-year mark and every 6 years thereafter. Justices must retire at the age of 70.

The current Chief Justice is Scott Bales. Bales is the lone Democrat on the bench and is flanked by 5 Republicans (Vice Chief Justice Brutinel, Justice Perlander, Justice Timmer, Justice Gould, and Justice Lopez IV) and one Libertarian (Justice Bolick).

Seating/Security Restrictions/Dress Code (as per the administration)

ALL students, faculty, staff and guests will go through security screening, which includes a metal detector. Court starts promptly at 10 a.m., so if I were you, I’d get there around 9 to ensure you get a good seat.

Dress is business casual attire, which means you should dress like you’re going to an interview. You can’t bring laptops, bulky jackets, book bags, food, or beverages – including bottled water – to court.

When a Financial Crisis Triggers a Force-Majeure Event

In 2008, Donald Trump sought declaratory relief from a $40M personal guarantee to Deutsche Bank.1 In his complaint, filed in the Supreme Court of New York, Trump raised the defense that the once in a lifetime economic downturn, was an economic tsunami, which indemnified his performance of the guarantee under the contract’s Force Majeure clause.2 In the ensuing litigation, Deutsche Bank filed its own complaint and moved for summary judgement.3 The case was settled prior to adjudication on the merits.4 While Trump’s argument that the credit tsunami qualified as a force-majeure event5 appears meager on its face, he may have been on to something.

The doctrine of impossibility holds that a party should be excused from performance of a contract when the performance is made impracticable.6 This doctrine is usually expressly contracted into a force-majeure clause. The term “Force-Majeure” is French and directly translates to “a superior force.”7 In a legal sense, Force Majeure is an affirmative defense that encompasses events which can neither be anticipated nor controlled to the extent that it prevents a party from performing their obligations.8 The events which constitute a force-majeure event depend on the wording of the clause within the contract.9 Generally, economic hardship does not constitute a force-majeure event.10 In addition, a party may not invoke a force-majeure clause to excuse performance when it could have been prevented by the exercise of prudence or due care.11

The financial crisis of 2008 is the most serious recession since the Great Depression of the 1930s.12 As a result, many loans defaulted.13 The affirmative defense that the financial crisis made performance impossible, and qualified as a force-majeure event, was used by several defendants. While the affirmative defense has never reached the appellate level, several district courts have analyzed whether the financial crisis was a force-majeure event. Surprisingly, their results were mixed.

Continue reading “When a Financial Crisis Triggers a Force-Majeure Event”