AZAPP Blog

Several articles appearing on azentral deal with matters in the Arizona appellate courts. One article reports that the Arizona Court of Appeals yesterday denied a request by developer Steve Ellman to delay putting the Los Arcos project before voters in Scottsdale (see previous posting). The Los Arcos referendum will therefore appear on the March 9 ballot. The article also reports that the Court is expected to hear arguments in the matter on January 7, and to issue a decision within the following three days. Another article notes that the Mesa eminent domain decision covered in a previous posting has received national media attention, including a profile on the CBS television program 60 Minutes. A portion of the Business Buzz column notes that the Arizona Court of Appeals has ruled that a former Dell Computer executive who joined Tucson's Artisoft in 1994 has been told by the court to pay state taxes on $5.6 million in Dell stock options he exercised after moving to Arizona.

Posted by azapp @ Wed, Dec 31, 2003

An article appearing on azcentral notes that the Arizona Court of Appeals will hear arguments today in a case involving the question of whether Scottsdale voters should be permitted to decide by referendum issues affecting the Los Arcos redevelopment project.

Posted by azapp @ Tue, Dec 30, 2003

An article appearing on azcentral notes that in a recent decision the Arizona Court of Appeals held that an anti-graffiti statute did not apply when the defendant made meaningless marks on a wall in an apartment complex, because the statute refers to a "message" "slogan" "sign" or "symbol."

Posted by azapp @ Mon, Dec 29, 2003

Weatherford v. State of Arizona: Supreme Court Identifies Standard Necessary for a Foster Child to Establish § 1983 Liability Against State Officials

Cheryl Weatherford, acting as guardian ad litem for a twelve-year-old boy who was allegedly sexual assaulted while in a foster placement, sued the State of Arizona and the social workers responsible for the boy’s foster placement. Weatherford sued the Appellees for negligence and depriving the boy of his constitutional rights, in violation of 42 U.S.C. § 1983. The trial court granted summary judgment in favor of the Appellees, in part based upon qualified immunity under § 1983. The court of appeals reversed the order dismissing the § 1983 claims, holding that a social worker’s failure to exercise “professional judgment” in the placement and monitoring of a child in state foster care may subject the social worker to individual liability under § 1983. The Arizona Supreme Court granted review to determine whether and under what circumstances a child placed in a foster care facility may bring a § 1983 action against individual state workers for violating the foster child’s substantive due process rights under the United States Constitution.

Justice McGregor, writing for a unanimous court, reversed that portion of the court of appeals’ opinion addressing qualified immunity and crafted a more stringent test for establishing § 1983 liability. The court held that a foster child must show “that the official, without justification, acted with deliberate indifference by placing a child in foster care or by maintaining a placement when the official knew that the placement exposed the child to danger or would have known of the danger but for the official’s deliberate indifference.” The court noted that under this standard, § 1983 liability is only established if the following elements are satisfied: the executive uses the state’s power in an oppressive manner; the executive’s behavior is at the very least “deliberate indifference”; the state fails to live up to the affirmative duties it assumes once it undertakes to make a person dependent upon the state’s care; and the executive’s actions were without justification under the “totality of the circumstances”—including consideration of the possibility of a safe placement or the existence of financial constraints. The court reversed the grant of summary judgment on § 1983 immunity grounds and remanded for reconsideration under this newly articulated standard.

Posted by azapp @ Sat, Dec 20, 2003

An article on azcentral reports that the American Center for Law and Justice has filed a brief urging the United States Supreme Court not to review a Ninth Circuit decision, discussed in a previous posting, holding that the Scottsdale Unified School District violated free speech rights when it refused to hand out in its schools a flier advertising religious summer camps. For a copy of the brief, click here.

Posted by azapp @ Fri, Dec 19, 2003

Aegis of Arizona v. Town of Marana: Division Two Reverses Judgment In Favor Of Company Denied A Conditional Use Permit To Operate A Medical Waste Treatment Plant.

On December 17, Division Two issued a decision reversing a judgment in favor of a company that had planned to operate a medical waste treatment plant on a property in the Town of Marana, but was unable to do so because the Town determined that this use was not permitted under the existing zoning and denied the company a Conditional Use Permit. The company argued that the Town had violated its substantive due process and equal protection rights because the planning director had early on determined that the use was permissible under the existing zoning (which would render a Conditional Use Permit unnecessary) and because the Town's eventual decision to deny the Conditional Use Permit was made for "political" reasons. (The proposed land use had drawn substantial resistance from adjacent landowners and critical news coverage.) The jury awarded the company $428,199 in damages.

The Court of Appeals, per Judge Pelander, reversed. The Court first addressed the Town's argument that the company lacked standing to challenge its denial of the Conditional Use Permit. The Town noted that the company had never owned the property and that it was the company's founder, rather than the company itself, that had applied for the Conditional Use Permit. The Court rejected this argument, noting that the Town's decision had caused a specific and tangible injury to the company by preventing the company from operating on the site, and that the founder had applied for the permit as an agent of the company. The Court next addressed the company's argument that the Town's planning director had made a final determination that the proposed use was permissible under the existing zoning when he told the company's founder as much during an initial meeting. The Court disagreed, noting that the specific language of the Town's Land Development Code did not give the planning director the authority to render a "final, unreviewable determination" that a particular use not listed in the Code would be permitted. Next, the Court addressed the Town's argument that the company's challenges to its decision to require a Conditional Use Permit (as distinguished from its decision to deny the permit) were barred by its failure to exhaust available administrative remedies (specifically, an appeal to the Town Council). The Court stated that the pertinent issue was not exhaustion, but the closely-related question of whether the decision to require the permit was a "final, conclusive" determination that was ripe for judicial review. The Court held that it was not, because the determination could have been altered through further review by the Planning and Zoning Commission or the Town Council. The Court then turned to the company's substantive due process challenge to the Town's decision to deny the permit. The Court first held that the company had never enjoyed a property interest in the granting of the permit, because it could not have had a "reasonable expectation of entitlement" to have the permit granted based solely on an early statement by the planning director. Once the permit application was submitted, the Court stressed, the company should understand that its application would be subject to the "inherently unpredictable and often politicized process" of review of the application. The Court also held that, assuming that the company did have a property interest, the substantive due process claim would nevertheless fail, because the Town's conduct did not constitute an abuse of governmental power that "shocks the conscience." The Court rejected the company's argument that denying a property use "for political reasons" violates substantive due process, noting that "listening to public opposition to proposed land uses is part of the legislative process of rezoning." Finally, the Court rejected the company's equal protection claim, noting that there was no evidence that the company was treated differently from other applicants for Conditional Use Permits, and that even if they had been, there would be rational grounds for treating them differently. The Court accordingly held that the trial court had erred in denying the Town's motion for judgment as a matter of law with respect to the company's equal protection and due process claims, reversed the judgment for the company, and remanded with instructions to enter judgment for the Town.

Judges Espinosa and Eckerstrom concurred.

Practice Notes: The Court touched on several issues of general relevance to appellate practice. The company's argument that the planning director's statement had constituted a final, irreversible decision that the land use would be permitted was raised at the trial court in a motion for partial summary judgment, and on appeal in the company's answering brief. The Court explained that it would address the issue because it could "affirm on any ground supported by the record," regardless of whether the issue is raised by the appellant. The Court rejected the Town's argument that the company could only raise that issue by filing a cross-appeal, citing Rule of Civil Appellate Procedure 13(b)(3), and explaining that a cross-appeal is required only when a party wishes to "enlarge its rights under the judgment or lessen [another party's]." In reviewing the trial court's denial of the Town's motion for judgment as a matter of law, the Court explained that, on review of the Town's appeal from the final judgment, A.R.S. 12-2102(A) enabled it to review intermediate orders that involved the merits of the action and affected the judgment. The Court denied the City's request for fees incurred on appeal without explanation.

Posted by azapp @ Fri, Dec 19, 2003

Bridgestone/Firestone v. Dionicio Naranjo et. al.: Division Two Holds That The Abolition of Joint Liability Does Not Prevent Application of Satisfaction of Judgment Rules.

Dionicio Naranjo, his wife, and three children rented a van from A.P.S. Rent-A-Car ("A.P.S."). A tire on the van failed causing the van to roll over and crash, injuring four people and killing one. Naranjo and family sued A.P.S., but failed to join Bridgestone/Firestone as parties. Indeed, they opposed A.P.S.’s motion to join the tire company as a third party defendant. While the case was pending against A.P.S., Bridgestone sought a declaratory judgment against the Naranjos and A.P.S. that it was not obligated to indemnify A.P.S. for any damages awarded. The Naranjos responded by filing a counterclaim, alleging negligence and product liability based on a defective tire. Before the trial court ruled on a motion to dismiss, the jury in the A.P.S. action returned a verdict in favor of the Naranjos, awarding over $9 million in compensatory damages and allocating 30% of that amount to the product liability claim. Bridgestone then moved for summary judgment against the Naranjos’ counterclaims, arguing that collateral estoppel and satisfaction of judgment precluded the claims. The trial court granted the judgment, and the Naranjos appealed.

On appeal, Division Two affirmed. With respect to the satisfaction of judgment argument, the court noted that the Naranjos failed to demonstrate how the damages allegedly caused by Bridgestone differed from those caused by A.P.S. The counterclaim alleged the same injuries and damages arising from a single accident. Further recovery against Bridgestone would result in an impermissible double recovery or unjust enrichment. The court further held that the satisfaction of judgment rule continues to apply, notwithstanding Arizona’s abolition of joint liability. In addition, the court affirmed the trial court’s conclusion that collateral estoppel barred the counterclaims. The Naranjos had a full and fair opportunity to litigate their damages resulting from the accident in the A.P.S. accident, and were awarded full damages on their claims. Because the damages in the A.P.S. action were identical to those asserted against Bridgestone, there were no additional damages to be litigated. Third, the court held that public policy considerations, as reflected in A.R.S. § 12-2506, barred the second action against Bridgestone, specifically that a plaintiff ought to join all known and available tortfeasors as defendants in one action. See A.R.S. § 12-2506(C) (requiring the trier of fact to determine and apportion “as a whole at one time” the fault of all possible tortfeasors). Finally, the court held that, because the Naranjos could no longer recover actual damages against Bridgestone, their claim of punitive damages could not proceed.

Presiding Judge Pelander authored the Opinion; Judges Espinosa and Eckerstrom concurred.

Posted by azapp @ Fri, Dec 12, 2003

London v. Broderick: Arizona Supreme Court Rules That Court’s “Open Records” Provision Did Not Permit A Probation Department Employee who Faces Disciplinary Charges To Obtain the Employee’s Investigatory File Before the Pre-Disciplinary Hearing.

On December 11, 2003, the Arizona Supreme Court held that Rule 123 of the Arizona Supreme Court, the Court’s “open records” provision, did not entitle a probation officer facing disciplinary charges access to the investigative file pertaining to the charges before the employee’s pre-disciplinary hearing. The probation officer worked for the Maricopa County Adult Probation Department (“MCAPD”) who placed him on administrative leave for alleged misconduct. The probation officer made a public records request of the investigatory file containing evidence of the charges against him before his pre-disciplinary hearing. MCAPD denied the request on the ground that the file was not public, and would be released only after the hearing. The probation officer filed an administrative review action based on Rule 123, and a special action pursuant to Arizona’s Public Records Act, which was abandoned. Applying the existing public records caselaw to Rule 123, the Court held that the presumption in favor of disclosure is overcome when the records custodian “articulates a valid interest in shielding a document.” MCAPD did that here – noting among other things the importance of being able to fully explore ideas in an investigation – and in response the probation officer articulated only personal reasons for wanting the information: to defend his case. Any public interest in the information, the Court noted, would be as well served by disclosure of the file after the hearing. Balancing these interests, the Court sided with MCAPD.

Justice Berch wrote the opinion for a unanimous court.

Posted by azapp @ Fri, Dec 12, 2003

Story Regarding Alt-Fuels Class Action

The Arizona Republic is reporting that the trial court has refused to certify the class in a putative class action over the State's terminated alt-fuels program. According to the story, the lawyer representing a large group of businesses and sales people has said it is not clear yet whether they will appeal.

Posted by azapp @ Fri, Dec 12, 2003

On Monday, December 8, the unsuccessful petitioners in the gay marriage case summarized in a previous posting filed a Petition for Review by the Arizona Supreme Court. The attorney who represented the petitioners in the Court of Appeals was joined on the Petition by Arizona State University Law School Professors Paul Bender and James Weinstein. A copy of the petition is available here.

Posted by azapp @ Thu, Dec 11, 2003

Wolfinger v. Cheche: Division One Holds That the Fact that a Lawsuit Survived a Summary Judgment Motion Does Necessarily Establish That it Cannot be the Basis for A Wrongful Institution of Civil Proceedings Claim, and That a Claim is Not Wrongfully Instituted if it Has an “Objectively Reasonable” Basis.

On December 9, 2003, Division One of the Arizona Court of Appeals resolved important issues relating to the standards governing Wrongful Institution of Civil Proceedings (WICP) claims. The procedural history of the case spanned thirteen years and involved three separate lawsuits. First, attorney John Wolfinger filed fraud and racketeering claims against attorney Peter Strojnik, which were eventually dismissed for failure to prosecute. Then Strojnik brought a WICP claim against Wolfinger for filing the first lawsuit. Wolfinger filed a motion for summary judgment on the issue of probable cause, which the trial court denied. The court later declared a mistrial, then granted Wolfinger’s motion for judgment as a matter of law, and the parties settled while their appeals were pending. Finally, Wolfinger filed a WICP claim against Strojnik and his attorneys, alleging that Strojnik’s WICP claim in the second lawsuit was itself wrongfully instituted. Wolfinger moved for summary judgment on, among other things, probable cause. The trial court denied Wolfinger’s motions and entered summary judgment for Strojnik’s attorneys, finding that because the court had denied summary judgment in the second lawsuit, there was probable cause as a matter of law for Strojnik’s attorneys to file it. Wolfinger appealed.

In an opinion authored by Judge Barker and joined by Judge Garbarino, the Court of Appeals affirmed, but on grounds that differed from the trial court’s. The Court held that the issue of whether a lawsuit was brought without probable cause is always a question of law for the court unless there are conflicting factual assertions that must be resolved in order to determine whether probable cause exists. The court also held that, although the current test for probable cause requires consideration of both objective and subjective factors, the United States Supreme Court’s decision in Professional Real Estate Investors, Inc. v. Columbia Pictures, 508 U.S. 49 (1993), precludes the court from considering the subjective prong of probable cause unless the court first determines that the action was not objectively reasonable. The court identified the Rule 11 standard as the appropriate standard for determining whether a claim is “objectively reasonable” for purposes of probable cause in a WICP proceeding. Finally, the Court rejected the trial court’s conclusion that a denial of summary judgment mandates a finding that a claim was objectively reasonable in all circumstances, holding that the denial of a motion for summary judgment is merely one factor in the analysis. Applying these standards to the case, the Court found that the WICP claim in the second lawsuit was objectively reasonable.

Judge Timmer dissented. Although she agreed with the majority’s articulation of the probable cause standard, she believed that the uncontested material facts did not establish as a matter of law that Strojnik’s attorneys had probable cause to maintain the WICP claim in the second lawsuit.

Posted by azapp @ Thu, Dec 11, 2003

Cimarron Foothills Community Assn. v. Kippen: Division Two Rules That RV Accommodation Not Necessary For Residential Elder Care Facility Under The Fair Housing Amendments Act.

Division Two affirmed a trial court's injunction preventing a residential elder care facility from parking its RV outside of a garage or other enclosure in violation of the community's conditions, reservations, and restrictions (CR&R's). The facility argued that parking the RV at its lot was a reasonable and necessary accommodation under the federal Fair Housing Amendments Act (42 U.S.C. 3604(f)(3)) because a large vehicle with a bathroom was required to transport the nine residents and their medical equipment. The court disagreed noting that the facility was permitted to park an RV on the premises--so long as the RV was in a garage or other enclosure. The court found that the testimony of the director of the facility that building a garage would be financially possible but "a great burden" was insufficient to "demonstrate that 'but for' the accommodation, the[] residents would be denied the opportunity to enjoy the housing of their choice."

Judge Howard wrote the opinion which Judges Brammer and Florez joined.

NOTE: Former Arizona Supreme Court Justice Stanley Feldman represented the elder care facility.

Posted by azapp @ Thu, Dec 11, 2003

Facilitec v. Hibbs: Arizona Supreme Court Holds that Director of Arizona Department of Administration May Delegate to the Deputy Director Authority to Make the Final Decision on the Appeal of a Procurement Protest.

On December 10, the Arizona Supreme Court, per Vice Chief Justice McGregor, issued its unanimous decision in Facilitec v. Hibbs, in which it resolved a "recurring issue of statewide importance" pertaining to the Department of Administration's handling of bid protests. The bidder protested its non-selection for a contract to provide office furniture to the State to the Department's procurement officer, who denied the protest. The bidder appealed the decision up to the Director, who delegated the matter to the Deputy Director, who affirmed the denial. The bidder then filed a complaint in Superior Court, arguing that the Deputy Director lacked the lawful authority to review the bid protest. The Superior Court agreed, holding that the Legislature had not given the Director the power to delegate the matter to the Deputy Director, but the Court of Appeals reversed.

The Supreme Court agreed with the Court of Appeals that the Director acted within his lawful authority in delegating the matter to the Deputy Director. The Court focused on A.R.S. 38-462, which authorizes deputies of state officers to exercise the officers' duties. The Court rejected the bidder's argument that other statutes limiting the Director's delegations to "administrative" functions invalidated the delegation, noting that these statutes do not limit the scope of section 38-462, and that "administrative" functions in any event would include quasi-judicial functions of the sort at issue. The Court also noted that the Legislature had expressly limited other State officers' powers to delegate functions, but had not imposed any such limitation on the Director of the Department of Administration.

Posted by azapp @ Thu, Dec 11, 2003

The United States Court of Appeals for the Ninth Circuit yesterday issued an opinion in Arizona Libertarian Party v. Bayless affirming in part, vacating in part, and remanding a decision of the United States District Court for the District of Arizona holding that Arizona's primary system violates the First Amendment. Whereas the District Court had struck down the entire primary system, the Ninth Circuit panel affirmed only as to the aspects of the primary system that permit non-Libertarians to vote for Libertarian Party precinct committeemen. The Court remanded for the District Court to consider separately whether non-Libertarians' participation in the selection of Libertarian candidates is unconstitutional and, if not, whether the provisions related to the election of Libertarian precinct committeemen are severable.

Posted by azapp @ Tue, Dec 9, 2003

An editorial by Republic Columnist Roger Robb appearing today on azcentral discusses the line-item veto decision summarized in a recent posting.

Posted by azapp @ Mon, Dec 8, 2003

An article appearing today on azcentral notes that a petition for review is expected to be filed today seeking review by the Arizona Supreme Court of Division One's gay marriage decision, summarized below. The article cites the petitioners' attorney with respect to the arguments that will be made, and projects that the Court will permit the State to file its response to the petition on February 9.

Posted by azapp @ Mon, Dec 8, 2003

Downs v. Scheffler: Division One Holds That A.R.S. § 25-415 Requires Courts To Make Specific Factual Findings When Making Custody Determinations

Mary Ann Scheffler (“grandmother”), the paternal grandmother of Kortnee (“child”), appeals a trial court’s award of sole legal custodianship to the child’s mother. Kortnee was born in 1991 to unmarried parents who briefly resided with grandmother. In December of that year, the child’s mother was awarded sole legal custody and her father was awarded supervised visitation. Grandmother received grandparent visitation. In 1992, mother and child moved back in with grandmother. By August of that year, mother moved out of the home, but child lived with grandmother for the next 8 years. Grandmother supported the child without support payments from mother or father during that time. In 1999, mother resumed regular contact with her child. In 2000, the child’s parents consented to grandmother’s appointment as the child’s legal guardian. In 2001, mother sought to move the child into her new home, and grandmother petitioned the court to grant her legal custody pursuant to A.R.S. § 25-415. After mother rescinded a resulting mediation agreement, the court held an evidentiary hearing on the issue of custody. Grandmother put on evidence from the child’s therapist that remaining with grandmother was in the child’s best interest. The conciliation services evaluator opined that the child’s best interests required that mother receive custody, but refused to disclose her reasons “in order to protect the child.” The trial court refused to permit the grandmother to cross-examine the evaluator. Ultimately, the court concluded that it was in the child’s best interests for mother to receive custody, but did not articulate specific factual findings in support of this conclusion. Grandmother filed a motion for a new trial, a motion to stay the custody order, and an alternative request for grandparent visitation. The trial court denied both motions and failed to address the request for visitation.

On appeal, the Arizona Court of Appeals remanded, holding that A.R.S.§ 25-415 required the trial court to make specific factual findings even though the custody contest was not between legal parents, but between a parent and third party. The court held that, in order to determine whether petitioner has overcome the statutory presumption in favor of a custody award to a legal parent, the court is obliged to consider the best interests of the child. While § 25-415, as opposed to § 25-403(A), does not repeat the mandatory best interest factors of the latter statute, those subsections need not be repeated to be applicable. Nothing about § 25-403 limits their scope to disputes between legal parents. Rather, once a petition under § 25-415 sets forth sufficient facts to justify proceedings beyond the pleading stage, the court is required to make findings as to all factors relevant to its custody decision. Ultimately, a court may not decide a custody petition on the merits without findings, even if a basis for the award is that the petitioner failed to establish an initial statutory pleading element.

In addition, the Court of Appeals agreed with grandmother that the court abused its discretion by refusing to permit her to cross-examine the opinion of the conciliation services evaluator. Mother argued that the lack of cross-examination was harmless error because grandmother needed to establish that mother was an inappropriate custodial parent before grandmother could inquire into the basis of the custody agreement. The court disagreed, holding that nothing in the statute necessarily required grandmother to prove that mother was an inappropriate parent. Rather, she needed only to show by clear and convincing evidence that maternal custody would not be in the child’s best interests. Though that might be done by proving mother’s unfitness, it might also be shown where the child has lived only with the grandmother and that changing that arrangement would be significantly detrimental to the child. The court finally resolved that, given the strong statutory and public policies that make the child’s best interests the pre-eminent consideration in custody determinations and that the application of a fit parent’s constitutional rights is fact-sensitive, it would not interpret § 25-415 in such a way as to limit grandmother’s right to cross-examine a witness about the reasons for her best interests determination.

Finally, the court ordered that on remand the trial court should consider the grandmother’s request for grandparent visitation.

Presiding Judge Snow authored the Opinion; Judges Thompson and Gemmill concurred.

Posted by azapp @ Sun, Dec 7, 2003

An article appearing on azcentral states that the Bennett v. Napolitano decision, summarized below, "protects $31 million worth of programs once targeted for elimination," including programs for "foster children, the mentally ill and adults who need emergency dental care." Another, more extensive article on azcentral discusses the decision in more detail, and contains quotes from the Governor, some of the legislators involved, and others.

Posted by azapp @ Fri, Dec 5, 2003

December Minutes of Arizona Supreme Court

The Arizona Supreme Court has issued its December minutes in two parts (A and B). The minutes contain decisions made by the Arizona Supreme Court on various matters scheduled for a regular agenda, including petitions for review. The court's archive of its minutes can be found here.

Posted by azapp @ Fri, Dec 5, 2003

Bilke v. Arizona: Arizona Supreme Court Rules that Appeals of Interlocutory Judgments Under § 12-2101(G) Are Not Limited To Cases Involving Equitable Proceedings

Overruling the recent Division One decision of Mezey v. Fioramonti, 204 Ariz. 599 (App. 2003), the Arizona Supreme Court ruled today that appeals of interlocutory judgments under A.R.S. § 12-2101(G) are not limited to cases involving equitable proceedings.

The supreme court noted in its opinion that "[s]ince the earliest days of statehood, Arizona has had a provision permitting an appeal from an interlocutory judgment that 'determines the rights of the parties,' leaving only an accounting 'or other proceeding to determine the amount of the recovery.'" In a 1976 case called Cook v. Cook, 26 Ariz. App. 163 (1976), a panel of Division One interpreted that provision, § 12-2101(G), and held that the "other proceeding" to which the statute refers is not limited to equitable proceedings similar to an accounting. As a procedural safeguard, however, the Cook court required finality language from the trial judge before an appeal under § 12-2101(G) would be accepted. The Cook court held that the Rule 54(b) language from the Arizona Rules of Civil Procedure would satisfy that requirement.

Earlier this year the Mezey panel purported to overrule the Cook decision and limited § 12-2101(G) appeals to those involving an accounting or similar equitable proceeding. Mezey cited policy and other considerations for limiting interlocutory appeals such as the finality rule embodied in A.R.S. § 12-2101(B), the potential for a flood of interlocutory appeals, certain disadvantages to successful plaintiffs, and the misapplication of rule 54(b). The supreme court accepted the petition for review in the Bilke case to resolve the conflict between Cook and Mezey.

The court's analysis began with the plain language of the statute, which does not by its terms limit appeals of interlocutory judgments to equitable proceedings. According to the court, the legislature could have easily limited the breadth of § 12-2101(G) by including the words "similar" or "equitable" with the phrase "other proceeding" in the statute. The court doubted that the legislature intended to so limit the provision. For instance, apart from an accounting, the court could only identify one other equitable proceeding for determining the amount of recovery. The court also rejected the notion that the Cook rule would create a flood of interlocutory appeals. The broader interpretation of the statute has been in effect for over 25 years, but the problems identified in Mezey have not materialized. The concept that the Cook rule is unfair to plaintiffs was also rebuffed by the supreme court. Rather than disadvantage plaintiffs, the court held that the Cook rule balances plaintiffs' and defendants' rights. Mezey, on the other hand, "tips the balance almost entirely in favor of plaintiffs." Accordingly, the court endorsed Cook and overruled Mezey.

Justice Ryan wrote the opinion for the unanimous court.

Practice Note: The Supreme Court exercises discretionary review in only a limited number of cases and for limited purposes. Resolving conflicts on the Court of Appeals is one of those purposes. Such conflicts are not limited to disputes between Division One and Division Two. Because there is no en banc procedure for the Court of Appeals, a significant departure from prior precedent from either division potentially creates a conflict. In this case, the Supreme Court accepted review to resolve an intra-divisional conflict between two panels of Division One: one panel writing in 1976 (Cook) and the other in 2003 (Mezey).

Posted by azapp @ Thu, Dec 4, 2003

Bennett v. Napolitano: Arizona Supreme Court Denies Relief In Item Veto Case Because Legislators Lacked Standing To Challenge The Governor's Vetoes.

On December 4, the Arizona Supreme Court, per Chief Justice Jones, issued its unanimous decision in Bennett v. Napolitano, a special action in which four members of the Arizona Legislature challenged a number of Governor Napolitano's vetoes of individual items in various appropriations bills. Article V, Section 7 of the Arizona Constitution authorizes the Governor to veto "one or more" items of appropriation in "any bill" that contains "several items of appropriations." The petitioners claimed, however, that the items vetoed in these instances were not "appropriations." (The items vetoed actually reduced the amount of money appropriated to various agencies, and thus the vetoes served to block cuts in funding, rather than to block funding.)

The Court declined to address the merits of this question, because it concluded that the legislators lacked standing to challenge the Governor's vetoes. (Although the Arizona Constitution does not have the "case or controversy" language present in Article III of the United States Constitution, which has been construed to create a federal constitutional standing requirement, the Arizona Supreme Court nevertheless applies very similar standing principles as a matter of "sound judicial policy.") Resolving an issue of first impression, the Court held that the petitioners could not establish standing based on their role as legislators who participated in the enactment of the bills containing the vetoed provisions. The Court adopted the reasoning of the United States Supreme Court in Raines v. Byrd, 521 U.S. 811 (1997), in which case that Court held that legislators challenging Presidential vetoes in similar circumstances could not show the sort of concrete and particularized loss of a private right required to establish standing, and also could not, in the absence of any institutional authorization to bring suit, claim standing on behalf of the legislative entity of which they were members. The Court also rejected the legislators' claim to standing as taxpayers, stressing that the legislators were not alleging that the vetoes caused their taxes to be spent "for an illegal or unconstitutional purpose." The Court acknowledged that it could waive standing in "exceptional circumstances," but decided not to do so for several reasons: (1) The Court was "reluctant to become the referee of a political dispute," (2) The apparently-unprecedented 'negative appropriation' format of the vetoed provisions might not be repeated, and (3) disapproving the vetoes would compel the Court to "validate" bills that appeared to contravene the "single subject" rule set forth in Article IV, Part 2, Section 13 of the Arizona Constitution. The Court concluded by noting that, while "a measure of accountability for the current dispute can properly be assessed against both sides," "notions of restraint" prompted it to refrain from granting relief.

Posted by azapp @ Thu, Dec 4, 2003

Arizona Supreme Court Denies Special Action Relief to Legislators Over Line-Item Veto

The Arizona Supreme Court has issued its decision in Bennett v. Napolitano -- the line item veto case. The court found it prudent to decline special action relief. More details to follow.

Posted by azapp @ Thu, Dec 4, 2003

In an order list issued December 1, the United States Supreme Court granted certiorari to review the Ninth Circuit's decision in the case now captioned Schriro v. Summerlin, to address two questions pertaining to the retroactive effect of its holding in last year's Ring v. Arizona decision that capital defendants have a constitutional right to have all facts that must be found to expose them to the possibility of a death sentence be found by a jury. The questions are:
1. Did the Ninth Circuit err by holding that the new rule announced in Ring is substantive, rather than procedural, and therefore exempt from the retroactivity analysis of Teague v. Lane, 489 U.S. 288 (1989) (plurality)?
2. Did the Ninth Circuit err by holding that the new rule announced in Ring applies retroactively to cases on collateral review under Teague's exception for watershed rules of criminal procedure that alter bedrock procedural principles and seriously enhance the accuracy of the proceedings?
One of the decisions likely to be affected by the Supreme Court's review of Summerlin is the Arizona Supreme Court's decision in State v. Towery, in which that Court held that the rule of Ring should not be applied retroactively. The Summerlin case is discussed in an article currently appearing on azcentral.com.

Posted by azapp @ Tue, Dec 2, 2003

Eaton v. Arizona Health Care Cost Containment System: Division Two Affirms That Federal Law Prohibits the State From Compromising the Federal Portion of a Medicaid Lien

Appellant Steven Eaton received a settlement against which there was a substantial Medicaid lien. Eaton requested that the director of Arizona Health Care Cost Containment System (“AHCCCS”) compromise the entire lien to zero. The director applied Arizona’s lien compromise statute (A.R.S. § 36-2915) and compromised Arizona’s share of the Medicaid payment in full, but refused to compromise the federal portion of the lien because federal law prohibited him from doing so. An administrative law judge and the superior court affirmed the director’s decision.

On November 26, 2003, Judge Howard of Division Two affirmed the director’s decision, holding that when a personal injury settlement or award provides sufficient funds to the recipient to reimburse a Medicaid lien in full, federal law requires that the state reimburse the federal portion of the lien amount before the recipient can receive any funds from the settlement or award. The court gave substantial deference to federal agency interpretation of 42 U.S.C. § 1396k(b), which required that the federal government be fully reimbursed, even if the remaining funds were inadequate to make the benefit recipient whole. The court found that the agency interpretation was consistent with Congress’s intent that “Medicaid remain the payor of last resort.” Judge Howard also affirmed the director’s findings that Appellant failed to state a proper claim for fraud and that Appellant failed to satisfy the test under Valencia Energy Co. v. Ariz. Dep’t of Revenue, which is required to invoke estoppel against the state. Judges Brammer and M. Jan Florez concurred in the opinion.

Posted by azapp @ Mon, Dec 1, 2003

An article appearing November 26 on azcentral notes that the attorneys who represented the successful party in the widely-publicized eminent domain case Bailey v. Meyers, summarized in a previous posting, are seeking an award of $155,295 in attorney's fees. An attorney for the City of Mesa argued that the fee request is excessive and that the case did not have broad public significance. The case is now before Maricopa County Superior Court Judge Bethany Hicks.

Posted by azapp @ Mon, Dec 1, 2003