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Brown v. Dembow (CA1 2/25/20)

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This is about impeachment by a prior conviction under Rule 609 of the Rules of Evidence.

(So how does it begin? “One Sunday afternoon in November 2015, Howard Brown took his dog for a walk in Paradise Valley. It had been raining, the ground was wet and the skies were overcast and dark.”  We don’t know whether this is an hommage to Edward Bulwer-Lytton, a  comment on modern journalistic style, or a quiet joke. But it must be one of them, the alternative being that someone actually thought it a good way to begin a legal opinion.)

Plaintiff’s decedent was hit by a car driven by Defendant. At trial the court refused to let their counsel impeach her because her conviction for drug paraphernalia, originally a felony, had been converted to a misdemeanor at the conclusion of her supervised probation. They appeal a defense verdict.

The Court of Appeals affirms. The Superior Court can designate certain felonies as misdemeanors either at the time of sentencing or later. If its done at sentencing, an earlier case already held that impeachment under 609 isn’t allowed. After spending some time explaining felonies and misdemeanors the court tells us that “[t]he focus of impeachment turns on whether the witness, when testifying, is a felon.”  (Whether this follows from anything the court has said we leave to those interested enough to read the opinion. Though if you do read it we suggest that you take its simplistic conclusions about the common law with a grain of salt.) Defendant wasn’t a felon by the time she testified so she can’t be impeached. The court then dismisses a few of Plaintiffs’ individual arguments, which have to do with pesky things like statutes and other cases rather than the court’s “focus of impeachment” rationale.

Probably the right result, we’d say. But this is one of those opinions that leaves you less satisfied with its result at the end than you were at the beginning.

(Opinion: Brown v. Dembow)

Hwal’Bay Ba: J Enterprises, Inc. v. Jantzen (2/25/20)

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This opinion concerns “the circumstances under which a tribal entity enjoys sovereign immunity as a ‘subordinate economic organization’ of the tribe.” If you know what that means then you will want to read it, though it tells you not much of anything new except how to organize your motions and briefs on the subject. But the court clearly wants it to be seen as the new leading case so we’ll mention it, though its not really worthy of a full blog.

The real party in interest was injured on a rafting trip organized by a tribal entity. She sued; the entity claimed immunity; the trial court denied its motion to dismiss. The Court of Appeals — presumably seeing this as an issue that would go further up anyway — denied the entity’s special action; the Supreme Court accepted it.

The court briefly reviews basic sovereign-immunity law, reviews at length the Arizona cases on point, and makes passing mention of other jurisdictions. Rather than draw its conclusion from that, though, the court chooses first to reformulate it into “six non-exclusive factors to examine in deciding whether an entity is a subordinate economic organization of a tribe . . . .” The need for doing so isn’t clear, especially since the court neither adds anything new nor omits anything old (except, perhaps, by accident). Its “factors” are broad categories that include all the facts and circumstances that might, as shown by the earlier cases, bear on the subject. But of course from now on you will need to cite the court’s categories and follow its organization in order to show that you have read the case and are following the “law” in announces.

Justice Bolick concurs separately in order to opine that the Tenth Amendment (which for some reason he refers to it as “amend. X”) should limit sovereign immunity.

(Opinion: Hwal’Bay Ba: J Enterprises, Inc. v. Jantzen)