AZAPP Blog

Avila v. Biedess: Court of Appeals Upholds AHCCCS Alienage Restrictions Against Constitutional Challenge

Plaintiffs brought equal protection challenges against two AHCCCS programs that deny benefits to legal aliens who have been in the United States less than five years. One of the programs is partially federally-funded under Medicaid but the other, known as the Premium Sharing Program, is entirely state-funded. Judge Irvine, writing for the panel, noted that Congress has plenary power under the constitution to regulate immigration matters. Hence, federal standards that discriminate on the basis of alienage are only subject to rational basis review. Likewise, when a state applies a uniform federal standard under congressional mandate it is only subject to rational basis review. The court found that the Medicaid portion of AHCCCS was such a program and that its discrimination based on alienage survived rational basis review.

As for the wholly state-funded Premium Sharing Program, the court announced that it was subject to strict scrutiny review. The court noted that states cannot apply federal discriminatory immigration standards to their own programs and insulate them from strict scrutiny review. Rather, the normal rule applies that state laws that discriminate against legal immigrants in the distribution of economic benefits must be “precisely tailored to serve a compelling governmental interest.” Nonetheless, according to the court, the Premium Sharing Program meets this standard because it is a state-funded extension of the federally-funded program, which covers people who for economic reasons would not qualify for the Medicaid program. Characterizing it as an “impractical and strained application” of equal protection principals to invalidate this extension of the federal program, the court held that uniformity with the federal program was a sufficiently compelling state interest to defeat constitutional challenge.

Judges Garbarino and Patterson (Ret.) joined the opinion.

An article in today's Arizona Republic notes that on Thursday the Arizona Supreme Court issued a decision overturning a 20-year-old man's 52-year prison sentence for having sex with two 14-year-old girls, ruling the punishment was unconstitutionally cruel and unusual. Another recent article notes that the Supreme Court in its Tuesday Minutes rejected the Arizona Corporation Commission's challenge to the Attorney General's refusal to certify the Commission's wireless "slamming" and "cramming" rules. Osborn Maledon attorneys Joan Burke and Dan Kaplan, together with attorneys from other firms, filed a brief supporting the Attorney General's decision.

The Arizona Supreme Court on Tuesday issued a set of Minutes in two parts (A and B) ruling on special action petitions and other matters. Among these were an order declining jurisdiction of the petition challenging the Governor's Executive Order prohibiting sexual-orientation discrimination in executive agencies (see below), and an order declining jurisdiction of the petition challenging the Attorney General's refusal to certify the Arizona Corporation Commission's "slamming" and "cramming" rules as lawful (see below).

An article in Tuesday's Arizona Republic reports that the City of Mesa will not seek review of the Court of Appeals' eminent domain decision in Bailey v. Myers, which is summarized below.

Arizona v. Gant: U.S. Supreme Court Remands Fourth Amendment Case To Division Two For Reconsideration In Light Of AZ Supreme Court Decision In State v. Dean.

On October 20, the United States Supreme Court summarily disposed of a case that it had already set for argument on November 5, in light of an intervening decision of the Arizona Supreme Court dealing with the same issue. The case before the United States Supreme Court was Arizona v. Gant, in which the Court agreed to review Division Two's decision in State v. Gant, 202 Ariz. 240 (App. 2002), in which that Court held that the search of an arrestee's car was not conducted "incident to [his] arrest," such that it was properly conducted without a warrant. Division Two held that the search did not fit in the "search incident to arrest" exception to the Fourth Amendment warrant requirement because the arrestee left his vehicle voluntarily and "not in response to police direction." In such circumstances, Division Two reasoned, the need for a warrantless search to preserve officer safety and evidence are not present, because the vehicle's passenger compartment is not available to the arrestee at the time the police encounter and arrest the person. After the case had been fully briefed in the United States Supreme Court, the Arizona Supreme Court issued its decision in State v. Dean, rejecting the Gant Court's analysis. The Arizona Supreme Court reasoned that "[a] suspect arrested next to a vehicle presents the same threat to officer safety and the same potential for destruction of evidence whether or not he was alerted prior to arrest of the police's interest in him." Rejecting the Gant approach, the Court stressed that the proper inquiry is whether the search was "substantially contemporaneous with the arrest and [] confined to the immediate vicinity of the arrest." In the case before it, the Court held that this exception to the warrant requirement did not apply, because the arrestee's car was searched two and one-half hours after he left the car, and because the arrest did not take place near the car. In its October 20 Order List, the United States Supreme Court vacated Division Two's Gant decision and remanded the case for reconsideration in light of Dean.

Behrens v. O’Melia: Division One Holds That Change of Venue to Permit Consolidation of Actions Arising Out of Same Accident Was Not Abuse of Discretion.

Ted and Laura Behrens filed an action individually and on behalf of their children against the City of Casa Grande alleging liability for an accident that occurred on a public city playground. The action was removed from Maricopa to Pinal County upon the City’s Notice of Improper Venue. The Behrens’ then filed a second complaint individually and on behalf of non-child Harleigh Behrens against a different defendant in Maricopa County. The Behrens’ then moved to change venue to Pinal County in order to consolidate the actions, which the court granted.

Defendants in the second action appealed the change of venue ruling, arguing that, once Plaintiffs’ action was initiate in a proper venue, the court was without authority to change it. Division One disagreed, stating that, pursuant to A.R.S. § 12-406(B)(3) permits such a change of venue upon a showing of “good and sufficient cause.” In this case, the consolidation of cases would serve judicial economy and increase the likelihood of a full damage award. It therefore held that the superior court did not abuse its discretion in granting the Plaintiff’s motion.

Judge Weisberg authored the Opinion; Presiding Judge Garbarino and Judge Timmer concurred.

Johnson v. Mohave County: Division One Holds That Public Auction Requirement Of A.R.S. 11-256(C) Is Not Applicable To Leases For Public Parks Made Pursuant To A.R.S. 11-932.

On October 14, 2003, Division One affirmed the grant of summary judgment against a former member of the Mohave County Board of Supervisors who charged that the County's adoption of an intergovernmental agreement to support a park area pursuant to a non-unanimous vote and without a public auction was unlawful. The appellant former Board member, who had voted against the agreement while on the Board, charged that the agreement was effectively a lease covered by A.R.S. 11-251(9) and A.R.S. 11-256 -- statutes requiring appraisal and public auction or a unanimous Board vote in respect to the leasing of property by a County Board of Supervisors. The agreement, between the City of Lake Havasu and Mohave County, provided that the City would pay for capital improvements and operation of the park, and that the County would maintain its leasehold interest in the property and subsequently give the City a right of first refusal to enter into a new lease for the property. The court rejected the appellant's reliance on these statutes, concluding that the agreement was instead governed by A.R.S. 11-932, which authorizes agreements for the creation of parks and contains no public auction or unanimity requirement. The court stressed that familiar canons of statutory interpretation, including the principles that related statutes should be read in harmony with one another and that a more specific statute should take precedence over a more general one, required it to treat the latter statute as governing the specific area of leases for the purpose of public parks. The court therefore affirmed the trial court's grant of summary judgment against the appellant.

The court reversed the trial court's award of attorney's fees, however. The trial court had awarded fees to the appellees pursuant to A.R.S. 12-349, which authorizes a fee award against a plaintiff who brings a claim that is without substantial justification, constitutes harassment, and is not made in good faith. The court noted that the trial court had not issued any specific findings in support of the fee award, and that the appellant's argument, although rejected, was "fairly debatable."

The opinion was authored by Judge Hall and joined by Presiding Judge Timmer and Judge Garbarino.

Standardt v. Superior Court: Division One Upholds State Ban on Same-Sex Marriage After Lawrence v. Texas

On October 8, 2003, a panel of Division One upheld Arizona's statutory ban on same-sex marriages against challenge under the state and federal constitutions. This special action was brought after the United States Supreme Court issued its decision in Lawrence v. Texas striking down as violative of due process those laws which criminalize sexual activity between persons of the same sex. Petitioners argued that Lawrence implicitly recognized a fundamental right to same-sex marriage and that Arizona's statutory ban on such marriage (see A.R.S. §§ 25-101(C), 25-125(A)) could not withstand stricscrutinyny. The panel, however, refused to extend the holding of Lawrence declaring that there is no fundamental right to enter into same-sex marriage and that limiting state-sanctioned marriage to those of the opposite sex furthered a legitimate governmental purpose of fostering procreation in stable, long-term committed relationships.

In rejecting petitioners' arguments, the court noted that the U.S. Supreme Court in Lawrence expressly declared that its holding did not reach "whether the government must give formal recognition to any relationship that homosexual persons seek to enter." The Court of Appeals also pointed out that the Lawrence decision was decided on rational basis review -- suggesting that the Lawrence Court had not recognized a protected fundamental right to enter in same-gender sexual relations.

In a noteworthy passage, the court declared that fundamental rights protected by the Arizona Constitution's due process clause "are those firmly entrenched in our state's history and tradition and implicit in the concept of ordered liberty that may be, or may not be, shared with the rest of the country." The court found that entry into state sanctioned same-sex relationships did not meet these criteria. After reviewing both national and state precedents and enactments, the court declared that "the history of the law's treatment of marriage as an institution involving one man and one woman, together with recent [legislative] reaffirmations of that view lead invariably to the conclusion that the right to enter a same-sex marriage is not a fundamental liberty interest protected by due process." Likewise, the court rejected petitioners' challenges under the privacy provision of the Arizona Constitution (Art. 2, § 8) and under the equal protection clause of the federconstitutionion and the equal privileges and immunities clause of the state constitution.

As for inequities that might arise for children raised by same-sex couples not entitled to a state-sanctioned marriage relationship, the court declared that such inequity was not sufficient to defeat the state's rational basis of promoting procreation and child-rearing by limiting marriage to those of the opposite sex. According to the panel, "[a]ny inequity must be addressed and remedied by the legislature."

The decision was authored by Judge Timmer with Judges Gemmill and Portley concurring.

Swanson v. The Image Bank: Arizona Supreme Court Enforces An Express Choice-of-Law Provision Assigning Texas Substantive Law to Govern an Employment Contract

On October 6, 2003 the Arizona Supreme Court held that a choice-of-law provision assigning Texas substantive law to govern an employment contract precluded the trial court from awarding treble damages pursuant to an Arizona wage statute (A.R.S. § 23-355). The employment contract provided that it “shall be governed by and construed in accordance with the internal laws of the State of Texas, without regard to the principles of conflicts [sic] of law.” The Court rejected the employer’s argument that the emphasized language by itself required the application of Texas law without regard to a choice-of-law analysis. Rather, the Court held, that the court should conduct a choice-of-law analysis pursuant to Restatement (Second) of Conflict of Laws § 187 (1971) to determine the validity and applicability of the contractual provision. Under § 187, the Court is “to ascertain the appropriate balance between the parties’ circumstances and the states’ interests” by first determining whether the issue is one that parties may resolve by contract.

But in applying the § 187 analysis the Court disagreed with the Court of Appeals and trial court that Arizona law does not permit parties to an employment contract to opt out of Arizona’s treble damages statute. The Court also clarified that once a court concludes that the issue addressed by the choice-of-law provision “is one which the parties could have resolved by an explicit [contractual] provision,” under § 187(1), the court need not consider whether the issue involves a “fundamental” state policy under § 187(2). In reaching its holding, the Court emphasized that the employment contract was negotiated by parties of equal bargaining power represented by counsel.

Justice Jones authored the opinion and Justices McGregor and Ryan concurred.

Lindsay v. Cave Creek Outfitters, LLC:Division One Upholds Equine Owner Immunity Statute, A.R.S. § 12-553, Against Challenge That It Violates the Anti-abrogation and Arizona's Equal Protection Clause, Ariz. Const. art. 2, § 13.

On October 2, 2003 Division One affirmed summary judgment in favor of a riding stable operator on the basis of A.R.S. § 12-553. Section 12-553 immunizes an equine owner from an ordinary negligence claim by a person riding the equine if: “1. The person has taken control of the equine from the owner or agent when the injury or death occurs; 2. The person ... has signed a release before taking control of the equine; 3. The owner or agent has properly installed suitable tack or equipment....; [and] 4. The owner or agent assigns the person to a suitable equine based on a reasonable interpretation of the person's representation of his skills, health and experience with and knowledge of equines.” The plaintiff had suffered injuries when she was thrown from a horse during a desert trail ride guided by the defendant, but had executed a pre-printed release before the ride. The court, per Judge Garbarino, rejected the plaintiff’s contention that issues of fact relating to the release’s execution precluded summary judgment because the statute “only requires that the rider sign a release before taking control of the equine.” The court also rejected an anti-abrogation challenge because § 12-553 did not “deny all injured equine riders the right to sue for ordinary negligence,” but rather only “those who have signed a release” and who otherwise satisfy the statute’s requirements. With respect to the equal protection challenge, the court reasoned that the statute treated all those in the relevant class, i.e., those who had signed releases, equally and thus applied the rational basis test. Finding that the statute furthered a legitimate state interest related to an increase in lawsuits against equine owners, the court held the statute does not violate the equal protection clause.

Judges Barker and Thompson joined the opinion.

Daniel Y. v. Arizona Dept. of Economic Security: Division One Holds That Juvenile Court Erred In Terminating Appellant's Parental Rights Without Providing Appointed Counsel

On October 2, Division One vacated a juvenile court order severing the appellant's parental rights because he had not been provided with appointed counsel at the severance trial. The appellant's son was removed from his custody after Child Protective Services (CPS) received a referral alleging that he and his wife had abused the child. CPS subsequently filed a motion to terminate appellant's parental rights. Appellant initially retained two different attorneys, both of whom removed themselves from the case. The court then appointed two more attorneys, both of whom withdrew on the ground of "irreconcilable differences." The court cautioned appellant that it would be "reluctant" to appoint him a third attorney, and stated that, although it was not appointing a new attorney, it would continue with the severance trial as scheduled. The trial went forward with no appointed counsel. Appellant informed the court that he did not know how to proceed without counsel, presented no witnessess, conducted no cross-examination, and made no closing argument. At the conclusion of the trial, the court terminated appellant's parental rights. On appeal, appellant argued that the juvenile court's refusal to provide him with counsel violated his right to due process, and the Court of Appeals agreed. The court noted that a parent's right to counsel in a severance proceeding, while not co-extensive with a criminal defendant's right to counsel under the Sixth Amendment, is "of constitutional dimension." Waiver of that right therefore could not occur unless the parent is advised of the dangers of self-representation and the difficulties involved in defending oneself without formal legal training. The juvenile court had provided no adequate "advance warning" in this case, the court noted. And although the right to counsel could be "forfeited" by a parent's "extremely dilatory conduct," the record did not support the conclusion that appellant was guilty of such conduct. Accordingly, the court vacated the severance order and remanded the matter for a new severance proceeding.

The opinion was authored by Judge Snow and joined by Judges Sult and Portley.

Decca Design Build v. American Automobile Insurance: Division One Holds That General Contractor's Suit Against Bond Issuer Was Timely

On October 2, a panel of Division One reversed the trial court and held that a housing general contractor's suit against the issuer of a bond securing performance by a subcontractor was timely filed. The court, per Judge Lankford, examined the plain language of the bond, which required suit against the bond issuer to be filed within two years of the time that "final payment" became due under the subcontract. Because the subcontract did not define "final payment," the court referenced the definition of "final" set forth in Webster's New Collegiate Dictionary (9th ed. 1988): "not to be altered or undone . . . being the last in a series, process or progress . . . of or relating to the ultimate purpose or result of a process . . . relating to or occurring at the end or conclusion." Examining the precise terms of the subctontract, the court concluded that the conditions under which "final payment" would become due were not yet present, because the record did not indicate that the architect had submitted a certificate of final completion or that the owner had finally accepted the project, and certain payments were not to be made until these circumstances were present. The court therefore held that the general contractor's suit against the bond issuer had been timely filed, and remanded the case for further proceedings.

Judges Patterson and Hall joined the opinion.

Bailey v. Myers: Court of Appeals Announces New Constitutional Standard for Eminent Domain in Landmark Case

The Arizona Court of Appeals has announced a new constitutional standard for determining public versus private use under the eminent domain power in Bailey v. Myers. This highly publicized case involved Mesa's condemnation of property upon which a family-owned brake shop stood. The City planned to re-convey the land to a private developer to help create a commercial retail center which would stand as a "gateway" to downtown. The City justified its action by asserting that the redevelopment would aesthetically enhance downtown, create jobs, and increase property values, tax revenues, and utility revenues. Reversing the trial court, the appellate panel ruled that Article 2, Section 17 of the Arizona constitution requires an independent review of the intended disposition of the property to determine whether the proposed use is "really public." According to the court, this is a non-deferential review which, under Article 2, Section 17 must be conducted "without regard to any legislative assertion that the use is public." The trial court erred in applying the deferential standard that applies to the statutory question of necessity--a separate question from public versus private use.

Noting that "[n]ot every combination of perceived public benefits and advantages will satisfy the 'public use' requirement of our Constitution," the court held that "that the anticipated public benefits must substantially outweigh the private character of the end use." According to the court, "[t]he constitutional requirement of 'public use' is only satisfied when the public benefits and characteristics of the intended use substantially predominate over the private nature of that use." In this case, the court concluded that the intended use of the property is fundamentally for private development and that private parties would be the primary beneficiaries rather than the public.

The opinion was authored by Judge Gemmill and joined by judges Garbarino and Patterson.

PRACTICE NOTE: This case went to the court of appeals as a special action. The court noted among other reasons for accepting special action review that the Baileys had no other adequate remedy and were likely to suffer irreparable harm. In addition, the court supported its acceptance of special action jurisdiction because this case presented an issue of first impression and of statewide importance.

NEWS COVERAGE: Arizona Republic: Judges Rule in Favor of Mesa Brake Shop; Eminent Domain Gets New Scrutiny East Valley Tribune: Eminent Domain Win Buoys Homeowners

Cert Granted in Tuition Tax Credit Case

AZCentral.com reports today that the U.S. Supreme Court has agreed to take cert of a Ninth Circuit decision in a case brought to challenge the constitutionality of Arizona's tuition tax credit system, which permits Arizona taxpayers to donate a portion of their taxes to private schools (including religiously-affiliated schools) via "school tuition organizations." The narrow issue before the Court will be whether the Ninth Circuit erred in concluding that the Tax Injunction Act, which limits constitutional challenges of state taxation systems in federal court, did not apply to Arizona's tuition tax credit.

If the Court reverses the Ninth Circuit, it would prevent the constitutional challenge to the tuition tax credit from moving forward in federal court. The Arizona Supreme Court previously ruled the tuition tax credit constitutional in Kotterman v. Killian.

Mealey v. Arndt: Division One Holds that "Boundary by Acquiescence" Was Not Established Where Alleged Boundary was Not Clearly Marked

Division One on September 30, 2003 issued a decision reversing the Superior Court's ruling that a "boundary by acquiescence" was established between adjacent Scottsdale properties. The boundary between the adjacent parcels was initially marked by survey pins placed at the corners of the properties. Many years later, the owner of one property built a house which, for unknown reasons, was not square with the surveyed property line. Believing that the property line was parallel to the edge of the house, he added further improvements that, unknown to him or to his neighbor, encroached on his neighbor's property. After the discrepancy was discovered, he and his neighbor filed lawsuits against one another seeking to settle the matter of the property line. At trial, the owner of the encroaching property argued that his right to the encroaching area was established by the doctrine of "boundary by acquiescence," which may be found when (1) the owner occupies property up to a clearly defined line, (2) the owners of the adjoining properties mutually acquiesce in the placement of that line, and (3) the mutual acquiescence continues for ten years. The jury found that a boundary by acquiescence had been established, and the trial court entered judgment on the verdict. Division One, per Judge Thompson, reversed. The court stressed that a boundary by acquiescence may be found only where it is evidenced by a visible line marked clearly by monuments, fences, or the like. There was no such clear and persistent marker here, the court stressed, but rather only a pair of inconspicuous survey pins that the property owners themselves did not notice until long after they moved onto the properties. The court accordingly reversed the judgment and remanded the case for further proceedings.

Judges Snow and Gemmill joined the opinion.