[00:00:06] Speaker 00:
Morning, Your Honor, may it please the clerk Steve Czerbalik for appellants.

[00:00:11] Speaker 00:
I intend on reserving four minutes for my rebuttal.

[00:00:14] Speaker 01:
All right.

[00:00:15] Speaker 00:
The Arizona legislature established a peace officer's bill of rights.

[00:00:19] Speaker 00:
It is clear from the amendments passed in 2022 that the legislature intended that the POBR, the entire article, constitute the minimum rights given to police officers when they face disciplinary action.

[00:00:32] Speaker 00:
The application, the invocation of the POBR isn't triggered until there's an investigation or disciplinary action against the covered peace officer.

[00:00:42] Speaker 00:
The district court got it wrong when it decided that the POBR as amended in 2022 had a retroactive application.

[00:00:49] Speaker 00:
We suggest that all statutes contain an implied concept.

[00:00:54] Speaker 00:
The law can be read to say from this day forward when they take effect.

[00:01:00] Speaker 00:
In this case, had the statute said, from this day forward, a peace officer's Bill of Rights is established.

[00:01:07] Speaker 00:
From this day forward, agencies will need to provide due process to qualified officers.

[00:01:13] Speaker 00:
And from this day forward, officers are entitled to appeal rights.

[00:01:17] Speaker 00:
If this term was there, then the statute would obviously not be retroactive.

[00:01:22] Speaker 00:
But it doesn't change the analysis of this case.

[00:01:25] Speaker 01:
Well, counsel, the problem is normally if

[00:01:28] Speaker 01:
a legislature wants the statute to be effective immediately, it will put an effective date in there.

[00:01:34] Speaker 01:
So that's the problem with your argument in my view.

[00:01:39] Speaker 00:
Well, we don't need an immediate, an emergency clause is what they call it in Arizona.

[00:01:43] Speaker 00:
We don't need an emergency clause.

[00:01:45] Speaker 00:
What we need is when does the statute take effect?

[00:01:47] Speaker 00:
So when do these peace officers have the rights guaranteed by the peace officer's bill of rights?

[00:01:51] Speaker 00:
The generally effective date of the statute

[00:01:54] Speaker 00:
is the generally effective date.

[00:01:56] Speaker 00:
So what we have is in September of 2022, when that law takes effect, now from this day forward, here are the minimum rights that apply to peace officers.

[00:02:06] Speaker 00:
So in this case, the town of Gilbert had an obligation to follow the POBR from that day forward, from the effective date forward.

[00:02:15] Speaker 00:
So there isn't a retroactive application to the contract.

[00:02:19] Speaker 04:
So here's, I think, the argument for why it's retroactive.

[00:02:22] Speaker 04:
It's that there was a substantive change in the 2022 amendment that said, prior to that, POBR said, here are POBR protections, but you can contract around them under employment agreements.

[00:02:37] Speaker 04:
2022 comes around and it says, these are the minimal standards.

[00:02:43] Speaker 04:
You cannot contract around them.

[00:02:45] Speaker 04:
It changes the preemption ability.

[00:02:48] Speaker 04:
And so I think the retroactive application argument is,

[00:02:51] Speaker 04:
that change that takes effect would apply to contracts going forward.

[00:02:56] Speaker 04:
And if you override pre-existing contracts, then it's having a retroactive impact.

[00:03:01] Speaker 04:
Why is that not the right way to look at it?

[00:03:03] Speaker 00:
Well, it's not the right way to look at it because the Arizona Supreme Court in Kroll has actually clarified some things for us while this case was pending.

[00:03:10] Speaker 00:
The time that you look at is when are we actually doing something with this contract, right?

[00:03:14] Speaker 00:
And is it a vested contract, right?

[00:03:16] Speaker 00:
So we have an at-will term of an appointment letter

[00:03:20] Speaker 00:
But that doesn't qualify as a vested contract right in Arizona and no court has held that that qualifies as a vested contract, right?

[00:03:28] Speaker 00:
What you have is up until something changes that.

[00:03:30] Speaker 04:
Why not?

[00:03:31] Speaker 04:
Because I mean, I don't know that you can have it both ways.

[00:03:36] Speaker 04:
If the 2022 amendment was, you know, suggestive, then

[00:03:41] Speaker 04:
It wouldn't matter whether there's a vested contract right before or after, but clearly it was important for the legislature to enact a minimal standard of rights.

[00:03:50] Speaker 04:
And so what proceeded was a vested right.

[00:03:53] Speaker 00:
Sure.

[00:03:54] Speaker 00:
And this isn't unique, by the way, to at-will agreements.

[00:03:58] Speaker 00:
So you have a variety of different laws that get passed that actually impact at-will agreements.

[00:04:03] Speaker 00:
I agreed to

[00:04:04] Speaker 00:
have a certain pay for my hours, now the state has passed minimum wage.

[00:04:08] Speaker 00:
That's going to change my at-will agreement that I had.

[00:04:12] Speaker 00:
My wage is going to change.

[00:04:13] Speaker 04:
We passed this on a going forward basis.

[00:04:16] Speaker 04:
So it wouldn't mean that someone can go and say, well, hey, I want a new minimum wage for the last 10 years.

[00:04:23] Speaker 04:
And I think that's the problem with trying to parse out your argument.

[00:04:28] Speaker 04:
It seems to me as it has a flavor of retroactive impact, because otherwise, what you would be doing is overriding all the pre-existing contracts that are at will.

[00:04:38] Speaker 00:
Which isn't new to the law.

[00:04:39] Speaker 00:
Let me take another example.

[00:04:40] Speaker 00:
Age discrimination.

[00:04:42] Speaker 00:
I used to be an at-will employee.

[00:04:44] Speaker 00:
And now there's an age discrimination law that's passed.

[00:04:47] Speaker 00:
And now we say we can't discriminate people based off of age.

[00:04:50] Speaker 00:
Or you can get the Civil Rights Acts that have passed that say, these are the actual requirements that we want going forward.

[00:04:56] Speaker 00:
We can't terminate somebody.

[00:04:58] Speaker 01:
Going forward.

[00:04:59] Speaker 01:
Going forward.

[00:04:59] Speaker 01:
But it doesn't mean that if somebody was discriminated against before.

[00:05:04] Speaker 01:
Correct.

[00:05:04] Speaker 00:
the act was passed within the window that you could bring a statute that they have any any recourse and that's what I that's what I want to be really clear on is that in this case this is only going forward this is only from the effective date of the statute on so what we have is in September of 2022 when this law takes effect going forward you have to follow this due process that exists for police officers and that's the point I was trying to make is that the legislature could have said any at will contracts that were

[00:05:35] Speaker 01:
enforced beforehand are nullified under this statute, but they didn't say that.

[00:05:41] Speaker 01:
That's the problem.

[00:05:42] Speaker 00:
Well, and the part that's confusing to me is I don't know of the Civil Rights Act saying that explicitly.

[00:05:47] Speaker 00:
I don't know of the Age Discrimination Act saying that explicitly.

[00:05:50] Speaker 00:
I don't know of minimum wage acts saying that explicitly.

[00:05:53] Speaker 00:
What happens is from the effective date of the legislation, if there's a triggering event,

[00:05:58] Speaker 00:
Then going forward from that effective date.

[00:06:01] Speaker 00:
These are the minimum rights that need to be applied, which is exactly what happened here.

[00:06:05] Speaker 00:
We're not looking for an investigation that started in 2022.

[00:06:07] Speaker 00:
We don't even have the cruel fact case where we're saying, what do we do if we're already down this road?

[00:06:13] Speaker 00:
In this case, every operative event.

[00:06:15] Speaker 00:
from the investigation to the termination happened after the effective date of the statute.

[00:06:19] Speaker 03:
Council, my issue is that it does seem that the legislature was pretty close to saying it modifies all pre-existing contracts, because it says this article does not preempt agreements that supplement or enhance the provisions of this article.

[00:06:34] Speaker 03:
Negative implication is that it does preempt

[00:06:39] Speaker 03:
contracts that detract from it, correct?

[00:06:42] Speaker 00:
Well, yeah, and we can take a look at the state of the law.

[00:06:44] Speaker 00:
At that point, you have MOUs or agreements with legal groups.

[00:06:46] Speaker 03:
Yeah, exactly.

[00:06:46] Speaker 03:
And so the word preemption means that you're superseding something that previously exists.

[00:06:52] Speaker 00:
Absolutely.

[00:06:52] Speaker 03:
Right?

[00:06:52] Speaker 03:
So that's textually what the Arizona legislator is telling us.

[00:06:57] Speaker 03:
If there's an out-will contract, it's preempted under this statute.

[00:07:03] Speaker 00:
And we even have the actual statute that exists in Arizona that was cited where you say nothing in this paragraph shall be construed to affect the rights of public employees under the Constitution of Arizona and state and local laws of the state.

[00:07:16] Speaker 00:
So you have an idea that for public employees, the legislature can pass

[00:07:20] Speaker 00:
protections going forward, and we have a clear intent here to say, these are the minimum rights for peace officers.

[00:07:26] Speaker 03:
And the logical... I guess my point is that you don't even need any additional language.

[00:07:29] Speaker 03:
It's right there with preemption.

[00:07:31] Speaker 03:
Preemption means that you're taking precedence over something that previously exists or renders something that exists invalid and ineffective.

[00:07:38] Speaker 00:
Absolutely.

[00:07:39] Speaker 00:
And that's where we have the minimum rights from the effective date of the statute going forward.

[00:07:42] Speaker 00:
Just as you used to be able to fire someone based off of age, you can't do that anymore on the effective date.

[00:07:48] Speaker 00:
But you don't need to retroactively look back into that.

[00:07:51] Speaker 04:
So do you have, if Judge Bumghtey is correct and there is a clear intent statement in reading that statute, do you have a contract impairment issue then, under Arizona law or the 14th Amendment?

[00:08:05] Speaker 00:
I don't believe that there is a contract impairment issue because, as the Supreme Court just clarified, we don't have a vested obligation of the contract at that point in time.

[00:08:14] Speaker 00:
So the at-will employment term has never been held to be a vested contract.

[00:08:18] Speaker 04:
And you're saying from Kroll.

[00:08:20] Speaker 04:
From Kroll.

[00:08:20] Speaker 04:
But Kroll was about, I guess, it was the cancer firefighter cancer case, right?

[00:08:27] Speaker 04:
I guess my understanding of Kroll was that it encompassed, the legislature was encompassing all the preceding events during the employment that led up to that.

[00:08:37] Speaker 04:
Why is that analogous to here?

[00:08:39] Speaker 00:
Well, let's say that at that point in Kroll, you had had some type of handbook or something signed to say, we are not going to have any presumption about what happens with cancer for a firefighter.

[00:08:48] Speaker 00:
And that was something you signed as a matter of employment.

[00:08:51] Speaker 00:
Now you have the state.

[00:08:52] Speaker 00:
saying we're actually setting a standard for this going forward.

[00:08:54] Speaker 00:
We're changing the presumptions from the effective date on.

[00:08:57] Speaker 00:
Now, Kroll lost because this legislative change happened when an event, a triggering event, had occurred.

[00:09:03] Speaker 00:
But in this case, it's super clear that we don't fall on the wrong side of the line.

[00:09:06] Speaker 00:
We fall on the right side of the line because the time for the statute's actual application is after the effective date.

[00:09:12] Speaker 00:
All of the operative events in this case go forward.

[00:09:15] Speaker 00:
So all you have is an impairment, if you want to call it, of a term that wasn't vested, which doesn't trigger the contract clause for the Arizona and U.S.

[00:09:23] Speaker 00:
constitutions, which are analyzed the same.

[00:09:25] Speaker 04:
And you believe they are not vested, why?

[00:09:28] Speaker 04:
You know, so let's say the town of Gilbert says, I really wanted my commanders to be at will employees and to be able to dismiss them even without a disciplinary basis.

[00:09:38] Speaker 04:
We contracted for that.

[00:09:40] Speaker 04:
There's a contract there.

[00:09:42] Speaker 04:
And now the statute changes and it says, going forward, I've lost that right.

[00:09:48] Speaker 04:
Why is that not a vested right by the town?

[00:09:50] Speaker 00:
So first off, no court has ever held an at-will term to be a vested right, number one.

[00:09:55] Speaker 00:
Number two, at-will terms are always on their face, subject to legislative requirements.

[00:10:02] Speaker 00:
So for example, the discrimination, minimum wage, anything else like that, they can be modified.

[00:10:07] Speaker 00:
And even in Arizona, you have cases specifically that say if an employer puts terms into a handbook,

[00:10:12] Speaker 00:
and they actually modify what the at-will status was through their handbook and the employee reliance on it, then that actually is now enforceable by the employee.

[00:10:21] Speaker 00:
So all of that to say that at-will term actually only vests when it's particularly executed, like today I'm going to say you are fired when you're at-will.

[00:10:31] Speaker 00:
Now at that point, when you're going to do that, you have to run through the checklist.

[00:10:34] Speaker 00:
Is this termination otherwise lawful or is it otherwise restricted by enactment of the legislature, either state or federal?

[00:10:42] Speaker 00:
I'll reserve.

[00:10:43] Speaker 03:
I mean, there's no reason not to certify this question, right?

[00:10:47] Speaker 00:
I would love to have this actually certified.

[00:10:48] Speaker 00:
I think it is a novel issue of state law that has a wide ranging impact because we also have people that could be affected from handbook signatures to all kinds of other things.

[00:10:57] Speaker 00:
So certification would certainly be welcome on my side.

[00:11:07] Speaker 02:
Good morning, your honor.

[00:11:08] Speaker 02:
Thank you for the opportunity.

[00:11:09] Speaker 02:
Aaron Arson on behalf of the town of Gilbert.

[00:11:12] Speaker 02:
Nathan Williams, and Michael Solberg.

[00:11:14] Speaker 02:
Really an issue here, as the Court has already homed in on pretty specifically, there are two main issues.

[00:11:20] Speaker 02:
The first is whether this 22 Amendment to the Peace Officers' Bill of Rights can be retroactively applied, notwithstanding the lack of any express language that would indicate the intent to make it retroactively apply.

[00:11:34] Speaker 02:
And then assuming we get past that point, we get to the second portion of this argument, which is, is there an impairment of a vested

[00:11:42] Speaker 02:
substantive right.

[00:11:43] Speaker 02:
So turning first to the question of express, Judge Boumete focused on a couple of points specifically regarding preemption.

[00:11:52] Speaker 02:
And Your Honor used the expression that, well, there is this idea that if we take the negative or the inverse of the expression that this statute does not preempt those contracts that supplement or enhance,

[00:12:05] Speaker 02:
then the reverse must be true.

[00:12:08] Speaker 02:
I would suggest that a fair reading of both Crowell and of the Arizona Supreme Court's definition of express in the employment context and the retroactivity context would cut against that position.

[00:12:22] Speaker 03:
Well, before you get there, as a textual matter, you agree then that the 22 amendment is saying we are preempting things that detract from these protections.

[00:12:34] Speaker 02:
I think it says, yes, it says that there's preemption with respect to anything that supplements or enhances, that does not supplement or enhance on a going forward basis.

[00:12:48] Speaker 02:
So you agree there is preemption?

[00:12:49] Speaker 02:
I agree.

[00:12:49] Speaker 02:
But whether there's a retroactive effect that can preempt, it can preempt contracts on a going forward basis,

[00:12:58] Speaker 03:
Okay, that's my problem.

[00:12:59] Speaker 03:
Preemption, by its terms, by its very meaning, means that it is retroactively taking anything that exists prior to, you know, its forming and saying that this is now the law.

[00:13:10] Speaker 03:
Well, but that's not what the case law bears out, Your Honor.

[00:13:13] Speaker 03:
No, just textually.

[00:13:14] Speaker 03:
Tell me, why isn't that correct?

[00:13:16] Speaker 03:
Preemption only means that, right?

[00:13:18] Speaker 02:
Preemption means that with respect to anything that could exist.

[00:13:23] Speaker 02:
That exists.

[00:13:24] Speaker 02:
That exists.

[00:13:25] Speaker 02:
That it does preempt, yes.

[00:13:27] Speaker 03:
Yes.

[00:13:29] Speaker 03:
It seems like the Arizona legislature is saying anything that exists prior to the statute is now vacate or ineffective, at least with respect to these rights.

[00:13:39] Speaker 02:
If you read preemption to believe that the inverse of does not preempt must also be true, then yes, I would have to concede that.

[00:13:47] Speaker 01:
They could have easily said it.

[00:13:48] Speaker 01:
That's the problem I have with that interpretation is the legislature could have easily said that if they wanted the inverse to be true as well.

[00:13:58] Speaker 01:
Instead of couching it in this language, they could have expressly said that any contracts that are not consistent with this are hereby nullified or void.

[00:14:09] Speaker 01:
And that would be clear.

[00:14:11] Speaker 02:
Thank you, Your Honor.

[00:14:12] Speaker 02:
And that is the town's appellee's position is that, and specifically looking to the case of Johnson v. Hispanic broadcasters of Tucson,

[00:14:19] Speaker 02:
which is a 2000 case that arose in the Arizona Employment Protection Act context, the court looked at the term expressly, i.e., whether a contract expressly restricts the right of either party to terminate an employment relationship.

[00:14:33] Speaker 02:
And the court said, quote, the word expressly means indirect or unmistakable terms.

[00:14:38] Speaker 02:
directly and distinctly stated, express not merely implied or left to inference.

[00:14:43] Speaker 02:
And that's the standard that courts have lifted and taken, including in Kroll, applied to determine whether there's an express application, there should be an express application, excuse me, express intent to make a statute retroactively effective.

[00:14:58] Speaker 03:
So you're saying Kroll says that we take not the best reading of a statute

[00:15:03] Speaker 03:
and then we kind of modify its best reading based off of this express requirement.

[00:15:09] Speaker 03:
I'm sorry.

[00:15:10] Speaker 03:
I just kind of hard for me to understand that what they're saying is that we don't read the statute what it says or give it the best reading.

[00:15:17] Speaker 03:
We have to give it some sort of special nudge one way or the other in how we interpret it.

[00:15:23] Speaker 02:
In order to overcome the statutory presumption against retroactivity, I would think the answer is yes.

[00:15:28] Speaker 02:
And reading Kroll, I'm looking at paragraphs 28 and 29 specifically in that case.

[00:15:33] Speaker 02:
that there was language in that 2021 amendment to the workers' compensation statute that said, the statute was, the petitioners argued that it was very clear about who the amended statute should have applied to.

[00:15:48] Speaker 02:
It should have applied to both firefighters currently in service and former firefighters who are 65 years of age and diagnosed with certain forms of cancer and so forth.

[00:15:56] Speaker 02:
The argument from the appellants in that case was, look, that's a clear expression of intent for this amendment to retroactively apply.

[00:16:04] Speaker 02:
The Arizona Supreme Court rejected that analysis and said, no, that might say who the class of persons is who's eligible

[00:16:12] Speaker 02:
for this on a going forward basis.

[00:16:14] Speaker 02:
It doesn't say when they're eligible for it.

[00:16:16] Speaker 03:
Counsel, given that this issue really turns on how California courts would interpret this, this expressive rule, you would agree that certification would probably be the best course of action?

[00:16:29] Speaker 02:
I don't believe that certification is necessary, but I do agree that it's an appropriate course of action in this court's discretion.

[00:16:34] Speaker 01:
Per the Arizona court.

[00:16:36] Speaker 02:
I'm sorry, Your Honor.

[00:16:37] Speaker 01:
For Arizona.

[00:16:38] Speaker 01:
I think you said California.

[00:16:39] Speaker 02:
Yes, for the Arizona Supreme Court.

[00:16:42] Speaker 04:
We don't want a California court.

[00:16:44] Speaker 01:
We don't want California to decide on this one.

[00:16:46] Speaker 04:
That's true.

[00:16:47] Speaker 04:
Is it possible, just to tease out a little bit about that, does preemption necessarily mean that it has to override existing contracts or could the legislature have intended to use that provision, that language to speak to overriding

[00:17:04] Speaker 04:
contracts in the future, ones that haven't been written yet or entered into?

[00:17:09] Speaker 02:
Well, Your Honor, and that's kind of what I'm trying to say, Jed Boumete, and I disagree as to where that preemption point might happen, but our suggestion, based on every reading that I can see in Kroll versus Superstition, it doesn't necessarily look like preemption would invalidate everything forever and always, backward-looking.

[00:17:32] Speaker 03:
When do you think the effective date of this 22 amendment took place then?

[00:17:38] Speaker 02:
The effective date of the 22 amendment was, I believe it was September 24th, 2022.

[00:17:43] Speaker 03:
So some time around when it was passed?

[00:17:46] Speaker 02:
Yes, within perhaps 30 or 90 days afterwards.

[00:17:48] Speaker 03:
But your argument is not that preemption starts at a future date.

[00:17:52] Speaker 03:
You're just saying preemption cannot sometimes mean preemption.

[00:17:57] Speaker 02:
Preemption when you're applying a statutory presumption against retroactivity may not necessarily work to impair contracts.

[00:18:06] Speaker 02:
And to that point, there's at least an argument as to vested substantive rights, number one, under the retroactivity doctrine.

[00:18:14] Speaker 01:
So your argument is it's not necessarily retroactive presumption?

[00:18:17] Speaker 02:
Correct.

[00:18:18] Speaker 01:
Preemption.

[00:18:19] Speaker 02:
Retroactive preemption.

[00:18:21] Speaker 02:
Given, one, that statutory presumption, and frankly, the contract clauses to the state and Arizona and federal constitutions.

[00:18:29] Speaker 02:
In terms of retroactive impairment, I do want to touch on that for a second.

[00:18:35] Speaker 02:
The second primary question here on appeal is whether there's an impairment of a vested substantive right, assuming that we're

[00:18:44] Speaker 02:
assuming that this is a substantive right and there hasn't been any real argument to the contrary, the question is about when it vests.

[00:18:52] Speaker 02:
My colleague on the other side here said that there couldn't have been a vested right because it's not vested until the right is asserted or when the injury arises that could give rise to the defense or to the claim.

[00:19:08] Speaker 02:
Under Kroll, that was how the court analyzed the vesting date for purposes of an industrial injury arising under the workers' compensation statute.

[00:19:17] Speaker 02:
It could be that it never vests because a person never becomes injured.

[00:19:23] Speaker 02:
That's not how courts, including the Ninth Circuit, have looked at vested rights in an at-will or due process protected employment agreement.

[00:19:32] Speaker 02:
in the employment context in past cases.

[00:19:36] Speaker 02:
And as one example, the court in Greenewalt versus Sun City West Fire District, which is 23 Federal Appendix 650, talked about when the party's rights vested when they signed an employment contract.

[00:19:50] Speaker 02:
And the court relying on Arizona authority, Arizona Supreme Court authority, said that the rights of the parties were vested because they were, quote, actually assertable or were so substantially relied upon that retroactive divestiture of the right would be manifestly unjust.

[00:20:09] Speaker 02:
What was that site again?

[00:20:10] Speaker 02:
It was 23 Fed appendix 650.

[00:20:15] Speaker 02:
The pin site is 651, Your Honor.

[00:20:20] Speaker 02:
So in.

[00:20:22] Speaker 02:
In the context of a contract that has been entered into, a contract for employment, we look at when the right, not when an injury arises, but when, as the Ninth Circuit's language says, when the right was actually assertable.

[00:20:34] Speaker 02:
In this case, the town had the immediate right, if it chose to do so, to terminate Appellant Blunt's employment.

[00:20:42] Speaker 02:
It could have been on the spot.

[00:20:43] Speaker 02:
It could have happened six months later.

[00:20:45] Speaker 02:
It could have happened a year later.

[00:20:46] Speaker 02:
In exchange, Appellant Blunt had the absolute right upon execution

[00:20:51] Speaker 02:
to obtain a promotion to the position of commander and an increase in his wages, an increase in salary.

[00:20:58] Speaker 02:
So those rights, everything that was necessary in order for all the conditions precedent were satisfied is what I'm trying to say.

[00:21:05] Speaker 02:
That there was nothing else that needed to happen.

[00:21:07] Speaker 02:
There was no contingency as the Kroll case and as the Greenwald case contemplated that needed to occur in order for those rights to vest.

[00:21:16] Speaker 02:
So the town's position is that those rights under an at-will employment agreement had indeed vested

[00:21:21] Speaker 02:
And secondly, that manifest injustice to the town would result if the court were to hold otherwise.

[00:21:29] Speaker 02:
Why is that?

[00:21:29] Speaker 02:
Well, it would actually deprive the parties of consideration and unjustly enrich the appellant blunt, right?

[00:21:36] Speaker 02:
Because to accept appellant's request for retroactive application of the 2022 amendment to the Atwell Employment Agreement would be to give him a promotion and a raise and deprive the town of its bargain for right.

[00:21:49] Speaker 02:
And so there's no reason, there's no consideration that's been exchanged at that point.

[00:21:55] Speaker 03:
Don't we take into account the public policy interests that drove the Arizona legislator to enact this law?

[00:22:05] Speaker 02:
Your Honor, under the contract clause analysis, yes.

[00:22:08] Speaker 02:
Part of the analysis is the first prong is impairment of vested rights, which we've already discussed.

[00:22:14] Speaker 02:
And the second component, as Your Honor is suggesting, is whether it advances, quote, a significant and legitimate public purpose.

[00:22:22] Speaker 02:
The town suggests, and its position is, that in those cases where courts have believed that a public interest has overridden the freedom to contract, or given the ability of the legislature to impair a contract,

[00:22:36] Speaker 02:
have all been in cases where the public interest broadly was served by the contract impairment.

[00:22:43] Speaker 02:
So in the energy reserves case, it was a U.S.

[00:22:47] Speaker 02:
Supreme Court case that was from 1983, a law protecting consumers from escalating energy prices.

[00:22:54] Speaker 02:
Apartment Association of Los Angeles County, a law was passed prohibiting evictions during the COVID-19 pandemic, and so on and so forth.

[00:23:03] Speaker 02:
The other aspect of that, Your Honor, that's important to recognize, I think, is that even if a significant and legitimate public purpose that spoke to the public at large was at issue here, Apartment Association of Los Angeles County says that a heightened level, quote, a heightened level of judicial scrutiny is appropriate when the government is a contracting party.

[00:23:28] Speaker 02:
And so even if that's in question here and the town does not believe that it is, it's rather a

[00:23:33] Speaker 02:
relatively narrow class of people, we are automatically starting with a higher bar.

[00:23:39] Speaker 04:
I ask, so appellant, back to the certification question, appellant poses a question in which to certify to the Arizona Supreme Court and I wanted to get your sense of whether you thought that was the right way to frame the question to the Supreme Court assuming we went down that road.

[00:23:59] Speaker 04:
It's on page three.

[00:24:00] Speaker 04:
Does the POBR require discipline to be supported by just cause from non-probationary peace officers not withstanding terms of employment agreed to prior to the legislative amendment in 2022, stating that the peace officer is employed at will?

[00:24:14] Speaker 02:
If I may, Your Honor, I'll read it right here.

[00:24:29] Speaker 02:
I think, Your Honor, although I can't necessarily say I disagree with that formulation of the question, I think that if the court decides to certify the question to the Arizona Supreme Court, a more appropriate narrow focus on retroactivity does the presumption against retroactivity under common law and ARS 1-244 prohibit retroactive application of the contract to the appellant in this case.

[00:24:52] Speaker 01:
Would you also want us to certify the impairment to contractual rights

[00:24:58] Speaker 01:
claim as well or issue as well?

[00:25:01] Speaker 02:
Yes, Your Honor.

[00:25:01] Speaker 02:
I think they're part and parcel of the same argument.

[00:25:06] Speaker 02:
Thank you, Your Honors.

[00:25:07] Speaker 01:
Thank you.

[00:25:19] Speaker 00:
Echo the last comment that my friend to my left just said, I think that when I wrote the question to be certified or the proposed question to be certified, I believe that the contract issue would automatically be analyzed through that, which was kind of the purpose of the wording.

[00:25:32] Speaker 00:
So I didn't see the need to have that broken out into a second part, but if the panel finds that helpful, I wouldn't oppose that.

[00:25:38] Speaker 01:
I think it's always better to be more specific than less specific when we're getting certification.

[00:25:43] Speaker 01:
That's been my experience.

[00:25:44] Speaker 00:
And I'll obviously defer to the panel's judgment on that.

[00:25:47] Speaker 00:
And obviously the more questions, the more we can be able to use to do what we need to do.

[00:25:52] Speaker 00:
With that said, it kind of makes part of what I was going to say in the rebuttal a little less interesting because I was going to talk about Arizona's law and the presumptions that actually exist in Arizona statute.

[00:26:04] Speaker 00:
Because remember, we're dealing with two amendments here.

[00:26:06] Speaker 00:
So there's a lot of focus on the idea of what it preempts or doesn't and supplement or enhance.

[00:26:12] Speaker 00:
But I'd like to talk about the other sentence that was changed.

[00:26:15] Speaker 00:
The addition of this article outlines the minimum rights given to peace officers in this state.

[00:26:22] Speaker 00:
So when you read this in totality, you have the legislature saying these are the minimum rights that we want to have in this state.

[00:26:28] Speaker 00:
And then we can reference back to Arizona's rules of statutory construction, where it's 1-211A, the rules and the definitions set forth in this chapter shall be observed in the construction of the laws of the state, unless such construction would be inconsistent with the manifest intent of the legislature.

[00:26:45] Speaker 00:
Then you also have B, which is statutes that we've liberally construed to affect our objects and to promote justice.

[00:26:51] Speaker 00:
So reading this together, you have, in 2022, the legislature saying, we want to establish the minimum rights going forward.

[00:26:59] Speaker 00:
Now, we're not in a cruel situation where we're affecting ongoing proceedings.

[00:27:02] Speaker 00:
We're fortunately, in this case, not in a factual situation where we're wondering, what do we do with the pending internal affairs investigation?

[00:27:09] Speaker 00:
That would be a really sticky issue that would, I believe,

[00:27:13] Speaker 00:
appropriately characterized as a retroactive application.

[00:27:16] Speaker 00:
But here all we're asking for is going forward, should we actually do what the legislature said, which is enforce the minimum rights given to peace officers in this state?

[00:27:28] Speaker 00:
And the other interpretation of this kind of gets bizarre, because I don't think that there's supposed to be, there's nothing in the legislative history of two separate standards for police officers and investigations.

[00:27:38] Speaker 00:
Did you sign a handbook in 2022?

[00:27:41] Speaker 00:
that said something different, now you're subject to a different rule?

[00:27:45] Speaker 00:
Did you renegotiate your contract at some point?

[00:27:48] Speaker 00:
How do we actually determine that?

[00:27:50] Speaker 04:
So for that, that was the lay of the land before 2022, right?

[00:27:54] Speaker 04:
I mean, you know, you could have some people have certain contracts, other people subject to POPR rights.

[00:27:59] Speaker 04:
And so I take it the legislature did some cleanup work in order to make it a little more uniform.

[00:28:04] Speaker 00:
And you certainly could have that where Tucson had different rights than Phoenix, but what should never happen and would happen with my friend's argument on the other side is you might have two different Gilbert police officers, two different members of a police agency with two different appeals rights.

[00:28:19] Speaker 00:
And we don't even know how that works, versus what we suggest is the POBR is the minimum rights, which is what the legislator said, from the date of taking effect going forward.

[00:28:30] Speaker 01:
Well, the Arizona Supreme Court will let us know which theory is more viable in their view.

[00:28:36] Speaker 00:
Thank you, Your Honors.

[00:28:37] Speaker 01:
Thank you to both counsels.

[00:28:38] Speaker 01:
The case just argued is submitted for a decision by the court.

[00:28:40] Speaker 01:
Your arguments were really helpful, by the way.

[00:28:43] Speaker 01:
This completes our calendar for the day, and we are on recess until 9.30 AM tomorrow morning.

[00:28:54] Speaker 01:
Actually, we are on recess until 9.30 a.m.

[00:28:57] Speaker 01:
Wednesday morning.