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Monday, August 25, 2003
Bergeron v. O'Neil: Division Two Holds That Courts May Not Order Attorney Who Has Filed a Notice of Change of Judge To Divulge Reasons for Doing So
Division Two recently issued a decision on an issue presented in several consolidated special action petitions: When an attorney has filed a notice of change of judge pursuant to Rule 10.2, Ariz. R. Crim. P., and has avowed, as required by recent amendments to the rule, that the notice is not being filed for any improper purpose, may the court compel the attorney to divulge his or her reasons for seeking a change of judge? A divided panel of the court held that it may not.
The cases raising the issue were criminal proceedings in Pinal County Superior Court. A government attorney filed a notice to remove Judges Figueroa from a case. Finding that the Pinal County Attorney's office had filed numerous such notices with respect to Judge Figueroa, Judge O'Neil assigned the matter to Judge Campbell, the Presiding Judge in Maricopa County, for the purpose of "reviewing" the notice. Judge Campbell ordered the attorney to appear before him and give an explanation as to why he sought to remove Judge Figueroa. Several public defenders in Pinal County later filed notices to remove Judge O'Neil, and these proceedings were consolidated with the pending matter involving Judge Figueroa. The attorneys urged Judge Campbell to find that they could not be required to divulge their reasons for removing a judge pursuant to Rule 10.2. Judge Campbell disagreed, finding that the court could use its inherent authority to demand such explanations. The attorneys also filed special action petitions, however, asking the Court of Appeals to prevent the Superior Court from demanding explanations for their motions to strike judges. The Attorney General appeared on behalf of the respondent judges.
Division Two granted the petitions, noting that the issue was important and that the attorneys did not have an equally sufficient remedy by appeal. The majority, in an opinion written by Judge Eckerstrom and joined by Judge Pelander, found that the clear language, purpose, and history of Rule 10.2 reflected a "deliberate intent by the supreme court to retain a litigant's right to an automatic change of judge." Giving the court the power to demand reasons from attorneys using the rule, the majority reasoned, would "constructively amend[]" the rule, removing its automatic character. The majority acknowledged that the Supreme Court amended the rule in 2001, adding provisions barring the use of the rule for such improper purposes as to create delay or to remove judges of a particular race or gender. But the majority did not believe that these amendments undermined the established law providing for automatic strikes upon the filing of a notice. The majority noted that the state bar disciplinary process was the appropriate mechanism for addressing attorneys who falsely avow that they are not using the judge-striking rule for an improper purpose. The majority also noted that the purpose of the rule's automatic character was to prevent attorneys from being required to state reasons for striking a judge that could give rise to "needless embarassment or antagonism." And the majority noted that the trial judges' inherent authority could not authorize them to impose requirements that could "frustrate" the purpose of a rule promulgated by the Supreme Court.
Judge Espinosa dissented. In his opinion, the Supreme Court's 2001 amendments to Rule 10.2 "significantly modifie[d] and narrow[ed] the previously unfettered right to peremptorily remove a judge from a case." He believed that a trial judge could use his or her inherent power to demand reasons for striking a judge under the new version of the rule, in order to "ensure the integrity of [the court's] judicial proceedings and, if necessary, to determine bad faith by a litigant." Judge Espinosa criticized the majority for effectively rendering the 2001 amendments to the rule "an empty and ineffectual enterprise."
Division Two recently issued a decision on an issue presented in several consolidated special action petitions: When an attorney has filed a notice of change of judge pursuant to Rule 10.2, Ariz. R. Crim. P., and has avowed, as required by recent amendments to the rule, that the notice is not being filed for any improper purpose, may the court compel the attorney to divulge his or her reasons for seeking a change of judge? A divided panel of the court held that it may not.
The cases raising the issue were criminal proceedings in Pinal County Superior Court. A government attorney filed a notice to remove Judges Figueroa from a case. Finding that the Pinal County Attorney's office had filed numerous such notices with respect to Judge Figueroa, Judge O'Neil assigned the matter to Judge Campbell, the Presiding Judge in Maricopa County, for the purpose of "reviewing" the notice. Judge Campbell ordered the attorney to appear before him and give an explanation as to why he sought to remove Judge Figueroa. Several public defenders in Pinal County later filed notices to remove Judge O'Neil, and these proceedings were consolidated with the pending matter involving Judge Figueroa. The attorneys urged Judge Campbell to find that they could not be required to divulge their reasons for removing a judge pursuant to Rule 10.2. Judge Campbell disagreed, finding that the court could use its inherent authority to demand such explanations. The attorneys also filed special action petitions, however, asking the Court of Appeals to prevent the Superior Court from demanding explanations for their motions to strike judges. The Attorney General appeared on behalf of the respondent judges.
Division Two granted the petitions, noting that the issue was important and that the attorneys did not have an equally sufficient remedy by appeal. The majority, in an opinion written by Judge Eckerstrom and joined by Judge Pelander, found that the clear language, purpose, and history of Rule 10.2 reflected a "deliberate intent by the supreme court to retain a litigant's right to an automatic change of judge." Giving the court the power to demand reasons from attorneys using the rule, the majority reasoned, would "constructively amend[]" the rule, removing its automatic character. The majority acknowledged that the Supreme Court amended the rule in 2001, adding provisions barring the use of the rule for such improper purposes as to create delay or to remove judges of a particular race or gender. But the majority did not believe that these amendments undermined the established law providing for automatic strikes upon the filing of a notice. The majority noted that the state bar disciplinary process was the appropriate mechanism for addressing attorneys who falsely avow that they are not using the judge-striking rule for an improper purpose. The majority also noted that the purpose of the rule's automatic character was to prevent attorneys from being required to state reasons for striking a judge that could give rise to "needless embarassment or antagonism." And the majority noted that the trial judges' inherent authority could not authorize them to impose requirements that could "frustrate" the purpose of a rule promulgated by the Supreme Court.
Judge Espinosa dissented. In his opinion, the Supreme Court's 2001 amendments to Rule 10.2 "significantly modifie[d] and narrow[ed] the previously unfettered right to peremptorily remove a judge from a case." He believed that a trial judge could use his or her inherent power to demand reasons for striking a judge under the new version of the rule, in order to "ensure the integrity of [the court's] judicial proceedings and, if necessary, to determine bad faith by a litigant." Judge Espinosa criticized the majority for effectively rendering the 2001 amendments to the rule "an empty and ineffectual enterprise."
Posted by azapp @ Mon, Aug 25, 2003
Friday, August 22, 2003
Scottsdale Healthcare, Inc. v. AHCCCS Administration: Supreme Court Rules that AHCCCS Cannot Deny Payment for Hospital Care for Undocumented Aliens Based on the Patients' Transfer to a Sub-Acute Care Ward
The Arizona Supreme Court ruled yesterday that AHCCCS cannot deny hospitals reimbursement for care of undocumented aliens on the type of ward the patient happens to be placed on. The AHCCCS statute provides that undocumented aliens are eligible for AHCCCS coverage "necessary to treat an emergency medical condition" as defined in the Social Security Act. Yesterday, the court set forth the test for determining when an emergency medical condition had ended thus ending AHCCCS's obligation to pay. The supreme court reversed the court of appeals in three consolidated cases, which had relied on a Second Circuit opinion in holding that AHCCCS's obligation to pay ended once the patient was stabilized and moved from an acute ward to a sub-acute ward.
Rejecting the Second Circuit's interpretation of emergency medical condition under the Social Security Act, the supreme court eschewed any bright line rule for determining what is an emergency condition and what is not. Instead the court noted that "the realities of medical treatment and patients' responses to treatment do not lend themselves to such bright line distinctions." Turning to the statutory language, the court noted that the term "acute" in the statute contemplates a "short-lived" medical condition. Moreover, the statute requires that the absence of medical treatment could result in three statutorily defined adverse consequences: jeopardizing a patient's health, impairing bodily functions, or resulting in dysfunction of any bodily organ or part. Accordingly, the court announced that each case involves a fact intensive inquiry to determine whether the medical condition "is a non-chronic condition presently manifesting itself by acute symptoms of sufficient severity that the absence of immediate medical treatment could result in one of the three adverse consequences listed in [the Social Security Act]." The court noted that such determinations should largely be informed by the expertise of health care providers.
Justice Ryan wrote the opinion of the court. He was joined by Chief Justice Jones, Vice Chief Justice McGregor, and Justice Berch.
The Arizona Supreme Court ruled yesterday that AHCCCS cannot deny hospitals reimbursement for care of undocumented aliens on the type of ward the patient happens to be placed on. The AHCCCS statute provides that undocumented aliens are eligible for AHCCCS coverage "necessary to treat an emergency medical condition" as defined in the Social Security Act. Yesterday, the court set forth the test for determining when an emergency medical condition had ended thus ending AHCCCS's obligation to pay. The supreme court reversed the court of appeals in three consolidated cases, which had relied on a Second Circuit opinion in holding that AHCCCS's obligation to pay ended once the patient was stabilized and moved from an acute ward to a sub-acute ward.
Rejecting the Second Circuit's interpretation of emergency medical condition under the Social Security Act, the supreme court eschewed any bright line rule for determining what is an emergency condition and what is not. Instead the court noted that "the realities of medical treatment and patients' responses to treatment do not lend themselves to such bright line distinctions." Turning to the statutory language, the court noted that the term "acute" in the statute contemplates a "short-lived" medical condition. Moreover, the statute requires that the absence of medical treatment could result in three statutorily defined adverse consequences: jeopardizing a patient's health, impairing bodily functions, or resulting in dysfunction of any bodily organ or part. Accordingly, the court announced that each case involves a fact intensive inquiry to determine whether the medical condition "is a non-chronic condition presently manifesting itself by acute symptoms of sufficient severity that the absence of immediate medical treatment could result in one of the three adverse consequences listed in [the Social Security Act]." The court noted that such determinations should largely be informed by the expertise of health care providers.
Justice Ryan wrote the opinion of the court. He was joined by Chief Justice Jones, Vice Chief Justice McGregor, and Justice Berch.
Posted by azapp @ Fri, Aug 22, 2003
Thursday, August 21, 2003
New Times Runs Interview With Couple Pressing Special Action Seeking Approval of Same-Sex Marriage.
The latest issue of the Phoenix New Times includes a cover story interviewing the two men who have filed a special action recently argued before the Court of Appeals seeking approval of their marriage application, as discussed in a recent posting.
The latest issue of the Phoenix New Times includes a cover story interviewing the two men who have filed a special action recently argued before the Court of Appeals seeking approval of their marriage application, as discussed in a recent posting.
Posted by azapp @ Thu, Aug 21, 2003
Wednesday, August 20, 2003
In the Matter of: B.S.: Division One Holds that Parental-Consent Abortion Statute Places On Pregnant Minor the Burden of Proving Appropriateness of Judicial Bypass of Parental Consent Requirement By Clear and Convincing Evidence.
In its first decision addressing the proper construction and operation of A.R.S. 36-2152, which requires parental consent for an unemancipated minor to obtain an abortion but provides for a "judicial bypass" of this requirement when certain showings have been made, Division One clarified some aspects of the statute's operation. The case involved a 16-year old female with the initials B.S., who filed a "judicial bypass" petition in the juvenile court when she was eight and a half weeks pregnant. At the conclusion of a hearing held on the petition, the court announced its decision to deny her petition. B.S. appealed the denial the following day, when the court's written order was filed. Pursuant to the statute's expedited procedures, the Court of Appeals heard argument and issued its order affirming the denial the day after that. The court's opinion, authored by Judge Timmer and issued over five months later, acknowledged that B.S. had subsequently obtained the juvenile court's authorization to proceed with the abortion, but explained that it had decided to issue the opinion anyway to provide guidance to the juvenile court in future proceedings.
The court first noted that the statute fails to specify who bears the burden of proving that the circumstances under which a "judicial bypass" may be issued are present. The court placed the burden on the pregnant minor, determining that the "general rule that the party asserting the affirmative of an issue bears the burden of proving it" should apply. The court next noted that the statute failed to specify the applicable burden of proof, and concluded that the "clear and convincing evidence" standard should apply. The court reasoned that this standard was appropriate in light of the non-adversary nature of the proceeding, the magnitude of the issue involved, and the impact it has on parents' right to make decisions involving their minor children. The court also elaborated on the specific criteria that the statute requires a pregnant minor to establish in order to secure a "judicial bypass." Borrowing from caselaw construing other states' "judicial bypass" statutes, the court held that the minor's "experience" refers to her experiences managing her own life and responsibilities, that her "perspective" comprises the lengths she went to in exploring and considering her options, and that her "judgment" refers to her intellectual ability to understand and choose between these options.
Applying these principles to the case at hand, the court held that the juvenile court's initial denial of the minor's petition had been proper. B.S. had made only a minimal showing, relying on a teacher's note of questionable authenticity, two conclusory forms completed for her by interns at Planned Parenthood, and a one-minute question-and-answer session with the judge. Although it criticized the judge's failure to provide any written explanation of the reasons for the denial, the court held that the denial was appropriate in light of this minimal showing.
Judges Snow and Thompson joined the opinion.
In its first decision addressing the proper construction and operation of A.R.S. 36-2152, which requires parental consent for an unemancipated minor to obtain an abortion but provides for a "judicial bypass" of this requirement when certain showings have been made, Division One clarified some aspects of the statute's operation. The case involved a 16-year old female with the initials B.S., who filed a "judicial bypass" petition in the juvenile court when she was eight and a half weeks pregnant. At the conclusion of a hearing held on the petition, the court announced its decision to deny her petition. B.S. appealed the denial the following day, when the court's written order was filed. Pursuant to the statute's expedited procedures, the Court of Appeals heard argument and issued its order affirming the denial the day after that. The court's opinion, authored by Judge Timmer and issued over five months later, acknowledged that B.S. had subsequently obtained the juvenile court's authorization to proceed with the abortion, but explained that it had decided to issue the opinion anyway to provide guidance to the juvenile court in future proceedings.
The court first noted that the statute fails to specify who bears the burden of proving that the circumstances under which a "judicial bypass" may be issued are present. The court placed the burden on the pregnant minor, determining that the "general rule that the party asserting the affirmative of an issue bears the burden of proving it" should apply. The court next noted that the statute failed to specify the applicable burden of proof, and concluded that the "clear and convincing evidence" standard should apply. The court reasoned that this standard was appropriate in light of the non-adversary nature of the proceeding, the magnitude of the issue involved, and the impact it has on parents' right to make decisions involving their minor children. The court also elaborated on the specific criteria that the statute requires a pregnant minor to establish in order to secure a "judicial bypass." Borrowing from caselaw construing other states' "judicial bypass" statutes, the court held that the minor's "experience" refers to her experiences managing her own life and responsibilities, that her "perspective" comprises the lengths she went to in exploring and considering her options, and that her "judgment" refers to her intellectual ability to understand and choose between these options.
Applying these principles to the case at hand, the court held that the juvenile court's initial denial of the minor's petition had been proper. B.S. had made only a minimal showing, relying on a teacher's note of questionable authenticity, two conclusory forms completed for her by interns at Planned Parenthood, and a one-minute question-and-answer session with the judge. Although it criticized the judge's failure to provide any written explanation of the reasons for the denial, the court held that the denial was appropriate in light of this minimal showing.
Judges Snow and Thompson joined the opinion.
Posted by azapp @ Wed, Aug 20, 2003
Tuesday, August 19, 2003
Moulton v. Napolitano: Division One Affirms Dismissal of Challenge to Repeal of Alternative Fuel Vehicle Benefits for Failure to Exhaust, But Holds That Public Records Claims May Proceed.
The Arizona Legislature enacted laws providing grants, tax credits, and other benefits for people who owned "alternative fuel" vehicles, but later repealed many of these benefits. Many people, however, had in the interim purchased "alt fuel" vehicles with the expectation of receiving these benefits. Several of these people sued a number of state officials and agencies alleging bad faith, breach of contract, and various constitutional violations. The trial court dismissed all of the claims on the ground that the plaintiffs had failed to exhaust their administrative remedies before the Department of Revenue. A unanimous panel of Division One affirmed the dismissal of most of plaintiffs' claims for failure to exhaust. The court, per Judge Erlich, noted that it had "unfailingly held that tax matters must be exhausted within [the Arizona Department of Revenue] before being brought in superior court." The court acknowledged that plaintiffs had pleaded constitutional claims as well as tax claims, but held that the exhaustion requirement applied to these claims as well because they were "inextricably intertwined" with the tax claims. The court also noted that the Legislature had authorized the Department of Revenue to consider whether a taxpayer had received the proper tax credit "under any legal theory, including a constitutional one." The court reversed the dismissal, however, with respect to the plaintiffs' claims brought under the public records law, A.R.S. 39-121 et seq., noting that no administrative agency was involved in the production of public documents, and that the public records claim was not "inextricably intertwined" with the claims to which the exhaustion doctrine applied.
Judges Timmer and Snow joined the opinion.
The Arizona Legislature enacted laws providing grants, tax credits, and other benefits for people who owned "alternative fuel" vehicles, but later repealed many of these benefits. Many people, however, had in the interim purchased "alt fuel" vehicles with the expectation of receiving these benefits. Several of these people sued a number of state officials and agencies alleging bad faith, breach of contract, and various constitutional violations. The trial court dismissed all of the claims on the ground that the plaintiffs had failed to exhaust their administrative remedies before the Department of Revenue. A unanimous panel of Division One affirmed the dismissal of most of plaintiffs' claims for failure to exhaust. The court, per Judge Erlich, noted that it had "unfailingly held that tax matters must be exhausted within [the Arizona Department of Revenue] before being brought in superior court." The court acknowledged that plaintiffs had pleaded constitutional claims as well as tax claims, but held that the exhaustion requirement applied to these claims as well because they were "inextricably intertwined" with the tax claims. The court also noted that the Legislature had authorized the Department of Revenue to consider whether a taxpayer had received the proper tax credit "under any legal theory, including a constitutional one." The court reversed the dismissal, however, with respect to the plaintiffs' claims brought under the public records law, A.R.S. 39-121 et seq., noting that no administrative agency was involved in the production of public documents, and that the public records claim was not "inextricably intertwined" with the claims to which the exhaustion doctrine applied.
Judges Timmer and Snow joined the opinion.
Posted by azapp @ Tue, Aug 19, 2003
Monday, August 18, 2003
Roosevelt Elementary Sch. Dist. No. 66 v. Arizona: Court of Appeals Reverses Trial Court in Latest Public School Funding Case
On Friday, Division One reversed the superior court in several consolidated lawsuits over the legislature's funding of public schools under the Students First legislation. The trial court sided with school districts that sued the state alleging that the legislature had failed over many years to fully fund the statutory Building Renewal Fund thus violating the constitutional guarantee of "a general and uniform public school system" pursuant to Article 11, section 1 of the Arizona Constitution. Specifically, the districts argued that the statutory funding system, which had been implicitly approved by the Supreme Court in the Albrecht II case, was being dramatically underfunded and that funds had been transferred from the BRF to other legislative goals.
Writing for the court, Judge Ehrlich held that the school districts had failed to demonstrate that the funding failures actually affected students' ability to meet required academic standards. The court noted that there was a "likelihood" that the cuts in funding "had a significant impact on the districts' students" but observed that "it is not appropriate that we make an assumption rather than act on evidence." The court cited a number of school districts that apparently were able to adequately function on the reduced funds. The court dismissed as insufficient the testimony of the interim executive director of the SFB that the funding cuts to the BRF would mean that schools "will not be able to . . . adhere to [the guidelines]."
The court reversed and remanded the case for further proceedings. Judges Timmer and Snow concurred.
On Friday, Division One reversed the superior court in several consolidated lawsuits over the legislature's funding of public schools under the Students First legislation. The trial court sided with school districts that sued the state alleging that the legislature had failed over many years to fully fund the statutory Building Renewal Fund thus violating the constitutional guarantee of "a general and uniform public school system" pursuant to Article 11, section 1 of the Arizona Constitution. Specifically, the districts argued that the statutory funding system, which had been implicitly approved by the Supreme Court in the Albrecht II case, was being dramatically underfunded and that funds had been transferred from the BRF to other legislative goals.
Writing for the court, Judge Ehrlich held that the school districts had failed to demonstrate that the funding failures actually affected students' ability to meet required academic standards. The court noted that there was a "likelihood" that the cuts in funding "had a significant impact on the districts' students" but observed that "it is not appropriate that we make an assumption rather than act on evidence." The court cited a number of school districts that apparently were able to adequately function on the reduced funds. The court dismissed as insufficient the testimony of the interim executive director of the SFB that the funding cuts to the BRF would mean that schools "will not be able to . . . adhere to [the guidelines]."
The court reversed and remanded the case for further proceedings. Judges Timmer and Snow concurred.
Posted by azapp @ Mon, Aug 18, 2003
AZCentral.com Carries Story About Gay Marriage Special Action
AZCentral.com is carrying a story about Standhardt v. Superior Court, 1 CA-SA-03-0150, the special action challenging Arizona laws preventing same sex marriages. The article indicates that the Attorney General's office is urging the court to decline jurisdiction. The story reports that the Alliance Defense Fund, a group involved in separate special action against the governor over her executive order preventing discrimination in state agencies based on sexual orentiation, has filed an amicus brief in support of Arizona's ban on gay marriage. The group apparently requested to intervene in the case on behalf of a state legislator and questioned Attorney General Terry Goddard's ability to defend the case because of his involvement with the Arizona Human Rights Fund.
AZCentral.com is carrying a story about Standhardt v. Superior Court, 1 CA-SA-03-0150, the special action challenging Arizona laws preventing same sex marriages. The article indicates that the Attorney General's office is urging the court to decline jurisdiction. The story reports that the Alliance Defense Fund, a group involved in separate special action against the governor over her executive order preventing discrimination in state agencies based on sexual orentiation, has filed an amicus brief in support of Arizona's ban on gay marriage. The group apparently requested to intervene in the case on behalf of a state legislator and questioned Attorney General Terry Goddard's ability to defend the case because of his involvement with the Arizona Human Rights Fund.
Posted by azapp @ Mon, Aug 18, 2003
Friday, August 15, 2003
AP Reports Petition for Review Regarding Workers' Compensation for Injured Undocumented Workers
AZCentral.com is carrying an AP story that indicates a petition for review has been filed in the unpublished Fermin Torres decision--a workers' compensation case involving an injured undocumented worker.
AZCentral.com is carrying an AP story that indicates a petition for review has been filed in the unpublished Fermin Torres decision--a workers' compensation case involving an injured undocumented worker.
Posted by azapp @ Fri, Aug 15, 2003
Data Sales Inc. v. Diamond Z Manufacturing: Division One Hold that Surety Defenses Can Be Expressly or Impliedly Waived Within Guaranty Contract.
Diamond Z executed a guaranty on a contract for equipment financed by Data Sales. The contract contained a provision allowing Data Sales to change the terms of the contract without notice or consent of Diamond Z. A party to the contract assigned its obligations to a third party, who defaulted on the payments. Data Sales brought suit against Diamond Z for recovery of the funds. Diamond Z moved for summary judgment alleging that the assignment of the lease without its knowledge and consent modified the contract and discharged its obligations under guaranty. Data Sales cross moved for partial summary judgment arguing that the language of the contract expressly waived Diamond Z’s right to assert the modification defense. The trial court denied Diamond Z’s motion and granted that of Data Sales.
On appeal, the court of appeals affirmed the district court. The court held that, although § 48 of the Restatement of Suretyship and Guaranty excludes suretyship defenses from its list of waivable defenses, this was not sufficient to overcome the well-settled Arizona law that surety rights can be waived by parties in contract.
Judge Irvine authored the opinion, with Judge Sult and Judge Winthrop concurring.
Diamond Z executed a guaranty on a contract for equipment financed by Data Sales. The contract contained a provision allowing Data Sales to change the terms of the contract without notice or consent of Diamond Z. A party to the contract assigned its obligations to a third party, who defaulted on the payments. Data Sales brought suit against Diamond Z for recovery of the funds. Diamond Z moved for summary judgment alleging that the assignment of the lease without its knowledge and consent modified the contract and discharged its obligations under guaranty. Data Sales cross moved for partial summary judgment arguing that the language of the contract expressly waived Diamond Z’s right to assert the modification defense. The trial court denied Diamond Z’s motion and granted that of Data Sales.
On appeal, the court of appeals affirmed the district court. The court held that, although § 48 of the Restatement of Suretyship and Guaranty excludes suretyship defenses from its list of waivable defenses, this was not sufficient to overcome the well-settled Arizona law that surety rights can be waived by parties in contract.
Judge Irvine authored the opinion, with Judge Sult and Judge Winthrop concurring.
Posted by azapp @ Fri, Aug 15, 2003
Luther Construction Company v. Arizona Department of Revenue: Division One Rules Taxpayer May Be Entitled to Estop ADOR under Valencia.
Luther Construction Company builds facilities on the Navajo Reservation under both Arizona and BIA contracts. In 1997, ADOR assessed over $200,000 in delinquent transaction privilege taxes based on a 1994 BIA contract. In tax court, relying on Valencia Energy Co. v. Arizona Dep’t of Revenue, 191 Ariz. 565 (1998), Luther argued that ADOR should be estopped from assessing the delinquency because previous letters, assessments and refunds indicated that income from contracting activity on the reservation for the use of Indians is not subject to Arizona transaction privilege tax. ADOR argued that it could not be estopped because the letters, assessments and refunds did not constitute sufficiently formal opinions concerning the taxability of proceeds from Luther’s BIA contracts to be considered inconsistent acts under Valencia.
Reversing the tax court's grant of summary judgment to ADOR, Division One held that there was a genuine issue of material fact regarding whether Luther could have reasonably viewed ADOR's statements and actions as "an absolute, unequivocal, and formal statement of its position on the taxability of proceeds from BIA contracts." The court also determined that issues of facts surrounded the other prongs of the Valencia test including reasonable reliance, substantial detriment to the taxpayer, and no undue harm to the public interest. Accordingly, the case was reversed and remanded for further proceedings.
Judge Timmer wrote the Opinion of court. She was joined by Judge Ehrlich and Judge Pro Tempore A. Fred Newton.
Luther Construction Company builds facilities on the Navajo Reservation under both Arizona and BIA contracts. In 1997, ADOR assessed over $200,000 in delinquent transaction privilege taxes based on a 1994 BIA contract. In tax court, relying on Valencia Energy Co. v. Arizona Dep’t of Revenue, 191 Ariz. 565 (1998), Luther argued that ADOR should be estopped from assessing the delinquency because previous letters, assessments and refunds indicated that income from contracting activity on the reservation for the use of Indians is not subject to Arizona transaction privilege tax. ADOR argued that it could not be estopped because the letters, assessments and refunds did not constitute sufficiently formal opinions concerning the taxability of proceeds from Luther’s BIA contracts to be considered inconsistent acts under Valencia.
Reversing the tax court's grant of summary judgment to ADOR, Division One held that there was a genuine issue of material fact regarding whether Luther could have reasonably viewed ADOR's statements and actions as "an absolute, unequivocal, and formal statement of its position on the taxability of proceeds from BIA contracts." The court also determined that issues of facts surrounded the other prongs of the Valencia test including reasonable reliance, substantial detriment to the taxpayer, and no undue harm to the public interest. Accordingly, the case was reversed and remanded for further proceedings.
Judge Timmer wrote the Opinion of court. She was joined by Judge Ehrlich and Judge Pro Tempore A. Fred Newton.
Posted by azapp @ Fri, Aug 15, 2003
Wednesday, August 13, 2003
Arizona Water Company v. Arizona Department of Water Resources: Division One Holds That Groundwater Code Provisions Require the Arizona Department of Water Resources to Include End Users in Its Management Plan Conservation Scheme.
In 1980, the Arizona Legislature determined that Arizona’s water supply was at risk and needed to be conserved. To that end, it enacted Arizona’s Groundwater Code, a statutory scheme establishing a series of management plans with the end goal of achieving a safe yield of water by the year 2025. The Department of Water Resources sets a gallons per capita per day (“GPCD”) limit on water providers during each successive management plan. In this action, the Arizona Water Company alleged that the Department did not properly interpret the Groundwater Code when it excluded end users from the conservation scheme, arguing that the Legislature intended for end users to share the responsibility for achieving water limits. The superior court agreed and required the Department to redo the second management plan to include end users in its conservation scheme.
On appeal, the court of appeals affirmed. Under a common sense reading of the statutes, the court claimed, the Legislature intended for the Department to include in its management plans conservation measures applicable to end users. Among other provisions, A.R.S. § 45-563 explicitly requires “a continuing mandatory conservation program for all persons . . . receiving groundwater,” not simply those providing it. (Emphasis added.) Thus, the trial court correctly found the conservation measures in the Department’s current management plan inadequate.
The court of appeals also addressed the issue of whether Central Arizona Project water should be included as part of the overall water supply in the Department’s calculation of the GPCD limits of the various management plans. Determining that Arizona Municipal Water Users Assoc. v. Arizona Dept. of Water Resources, 181 Ariz. 136 (App. 1994), a decision including surface water and recovered effluent within the management plan’s calculations, was directly on point, the court held that the Department may count Central Arizona Project water in establishing a water provider’s GPCD requirements.
Opinion written by Judge Sult, with Judge Winthrop concurring. Judge Irvine authored a separate dissent.
In 1980, the Arizona Legislature determined that Arizona’s water supply was at risk and needed to be conserved. To that end, it enacted Arizona’s Groundwater Code, a statutory scheme establishing a series of management plans with the end goal of achieving a safe yield of water by the year 2025. The Department of Water Resources sets a gallons per capita per day (“GPCD”) limit on water providers during each successive management plan. In this action, the Arizona Water Company alleged that the Department did not properly interpret the Groundwater Code when it excluded end users from the conservation scheme, arguing that the Legislature intended for end users to share the responsibility for achieving water limits. The superior court agreed and required the Department to redo the second management plan to include end users in its conservation scheme.
On appeal, the court of appeals affirmed. Under a common sense reading of the statutes, the court claimed, the Legislature intended for the Department to include in its management plans conservation measures applicable to end users. Among other provisions, A.R.S. § 45-563 explicitly requires “a continuing mandatory conservation program for all persons . . . receiving groundwater,” not simply those providing it. (Emphasis added.) Thus, the trial court correctly found the conservation measures in the Department’s current management plan inadequate.
The court of appeals also addressed the issue of whether Central Arizona Project water should be included as part of the overall water supply in the Department’s calculation of the GPCD limits of the various management plans. Determining that Arizona Municipal Water Users Assoc. v. Arizona Dept. of Water Resources, 181 Ariz. 136 (App. 1994), a decision including surface water and recovered effluent within the management plan’s calculations, was directly on point, the court held that the Department may count Central Arizona Project water in establishing a water provider’s GPCD requirements.
Opinion written by Judge Sult, with Judge Winthrop concurring. Judge Irvine authored a separate dissent.
Posted by azapp @ Wed, Aug 13, 2003
State v. Hazlett: Division One Upholds Arizona’s Child Pornography Statute
Brian Kelly Hazlett, Sanford Goldstein, Jim Tiegs, and Steve Ross Gunter were separately indicted on multiple counts of sexual exploitation of a minor in violation of A.R.S. § 13-3553. Charges in each case were based on allegations that the defendants possessed computer image files of minors under the age of 15 engaged in exploitative exhibition or other sexual conduct. The defendants moved to dismiss the charges in part on the grounds that § 13-3553 violated their freedom of speech protections in both the Arizona and United States constitutions. The trial courts, relying on the recent U.S. Supreme Court opinion Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), agreed, and held that the statute was unconstitutionally overbroad because it did not require, as an element of the offense, that the depiction be of an actual minor actually involved in the sexual acts. The courts dismissed the charges accordingly.
In a consolidated appeal, the Division One reversed, concluding that A.R.S. §§ 13-3551 and -3553, unlike the statutes involved in Free Speech Coalition, are limited in scope to visual depictions of “actual minors” actually engaged in real or simulated exploitive exhibition or sexual conduct. Citing the maxim that, where possible, statutes are to be construed as constitutional, Arizona’s child pornography statutory scheme did not, as did that in Free Speech Coalition, include any language suggesting that the use of the word “minor” did not mean an individual who is actually under the age of 18, as opposed to someone who simply “appeared to be” a minor. Indeed, the term minor, as used in § 13-3553, is statutorily defined as being a “person under 18 when the visual depiction was created, adapted, or modified.”
The court rejected several additional arguments the trial courts had made in the course of their decisions, including an indication that language from the Arizona Session Laws suggested that the Legislature intended the statute to cover depictions of individuals who were not actually minors.
The court further noted its concern, shared with the United States Supreme Court, that a broad definition of child pornography could permit the prosecution of persons possessing materials that have substantial literary, artistic, scientific, or educational values because a small portion of that material may contain exploitive or otherwise prohibited material. That concern was not dispositive in these cases, however, because, among other reasons, an as-applied challenge such as this does not render a statute facially invalid and because both the statute at issue and prior Arizona caselaw have attempted to deal with this issue.
The court accordingly reversed the decisions of the trial courts and remanded for proceedings consistent with its opinion.
Judge Kessler authored the Opinion for the court, with Judge Sult and Judge Patterson concurring.
Brian Kelly Hazlett, Sanford Goldstein, Jim Tiegs, and Steve Ross Gunter were separately indicted on multiple counts of sexual exploitation of a minor in violation of A.R.S. § 13-3553. Charges in each case were based on allegations that the defendants possessed computer image files of minors under the age of 15 engaged in exploitative exhibition or other sexual conduct. The defendants moved to dismiss the charges in part on the grounds that § 13-3553 violated their freedom of speech protections in both the Arizona and United States constitutions. The trial courts, relying on the recent U.S. Supreme Court opinion Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), agreed, and held that the statute was unconstitutionally overbroad because it did not require, as an element of the offense, that the depiction be of an actual minor actually involved in the sexual acts. The courts dismissed the charges accordingly.
In a consolidated appeal, the Division One reversed, concluding that A.R.S. §§ 13-3551 and -3553, unlike the statutes involved in Free Speech Coalition, are limited in scope to visual depictions of “actual minors” actually engaged in real or simulated exploitive exhibition or sexual conduct. Citing the maxim that, where possible, statutes are to be construed as constitutional, Arizona’s child pornography statutory scheme did not, as did that in Free Speech Coalition, include any language suggesting that the use of the word “minor” did not mean an individual who is actually under the age of 18, as opposed to someone who simply “appeared to be” a minor. Indeed, the term minor, as used in § 13-3553, is statutorily defined as being a “person under 18 when the visual depiction was created, adapted, or modified.”
The court rejected several additional arguments the trial courts had made in the course of their decisions, including an indication that language from the Arizona Session Laws suggested that the Legislature intended the statute to cover depictions of individuals who were not actually minors.
The court further noted its concern, shared with the United States Supreme Court, that a broad definition of child pornography could permit the prosecution of persons possessing materials that have substantial literary, artistic, scientific, or educational values because a small portion of that material may contain exploitive or otherwise prohibited material. That concern was not dispositive in these cases, however, because, among other reasons, an as-applied challenge such as this does not render a statute facially invalid and because both the statute at issue and prior Arizona caselaw have attempted to deal with this issue.
The court accordingly reversed the decisions of the trial courts and remanded for proceedings consistent with its opinion.
Judge Kessler authored the Opinion for the court, with Judge Sult and Judge Patterson concurring.
Posted by azapp @ Wed, Aug 13, 2003
Tuesday, August 12, 2003
Torrez v. Knowlton: Division Two Rules that a False Arrest Claim Cannot Be Maintained When Arrest Made On An Invalid Warrant Fair on Its Face.
Appellant, Torrez, appealed trial courts grant of summary judgment dismissing his false arrest claim against a Pima County deputy sherriff. An arrest warrant for Torrez had been issued and later quashed. Seven months after that, Torrez was arrested during a traffic stop when the computer check erroneously indicated that there was still a valid outstanding warrant. Writing for the panel, Judge Druke noted that, while Arizona courts had addressed false arrest claims based on valid arrest warrants, this case presented an issue of first impression. Accordingly, the court followed the Restatement and held that a false arrest claim cannot be maintained when the arrest was made on an invalid warrant fair on its face. Here, all indications were that the warrant was valid and the officer complied with his duty and acted in good faith. Summary judgment was affirmed.
Judges Espinosa and Pelander concurred.
Appellant, Torrez, appealed trial courts grant of summary judgment dismissing his false arrest claim against a Pima County deputy sherriff. An arrest warrant for Torrez had been issued and later quashed. Seven months after that, Torrez was arrested during a traffic stop when the computer check erroneously indicated that there was still a valid outstanding warrant. Writing for the panel, Judge Druke noted that, while Arizona courts had addressed false arrest claims based on valid arrest warrants, this case presented an issue of first impression. Accordingly, the court followed the Restatement and held that a false arrest claim cannot be maintained when the arrest was made on an invalid warrant fair on its face. Here, all indications were that the warrant was valid and the officer complied with his duty and acted in good faith. Summary judgment was affirmed.
Judges Espinosa and Pelander concurred.
Posted by azapp @ Tue, Aug 12, 2003
Wednesday, August 6, 2003
Simms v. Napolitano: Division One Holds That The Arizona Department Of Gaming Has The Implied Authority To Deny An Applicant’s Request To Withdraw His Application For Certification To Provide Gaming Services.
Jeremy Simms, as part owner of T.P. Racing L.L.P., submitted an application for certification to the Arizona Department of Gaming to provide off-track betting services to several tribal gaming casinos. After months of investigation, the Department advised Simms of its intent to deny the application, expressing concern that Simms had been involved in questionable business practices, illegal activities, and financial dealings with a person purportedly involved in organized crime. Simms appealed the decision and an administrative hearing was scheduled. Before the hearing occurred, Simms filed a special action and motion for preliminary injunction in superior court, seeking to prevent the Department from denying the license and alleging that the Department insisted on denying the application even though Simms offered to withdraw it. In the superior court, the State argued that the Department has inherent power to deny a request to withdraw an application under the State's police power. Simms argued that, because his withdrawal made him a non-applicant, the State had no statutory power to proceed against him. The superior court ruled in favor of Simms, reasoning that the Department's authority derived from the relevant tribal-gaming compact rather than from the State's exercise of police power, and that the Department therefore did not have the power to deny a request to withdraw.
On appeal, the State reasserted its position that the Department's right to deny a request to withdraw an application springs from the State's police power -- specifically, from the statutes that authorize the Department to certify gaming employees. Examining the scope of the Department's authority under the applicable state and federal statutes -- in particular the federal Indian Gaming Regulatory Act -- the court of appeals agreed. The federal statutory scheme, the court held, authorized states to exercise their police power through tribal-state compacts to keep gaming free from criminal elements and to protect the gaming public. Arizona's statutes are founded on the federal scheme, as are the tribal-state compacts to which the State is a party. The court concluded that although the tribal-state compact is the mechanism through which regulation by the state is possible, the regulating activities are an exercise of the State's police power and not merely an exercise of a contractual right. In this instance, the Department did not exceed its authority by denying Simms' request to withdraw his application pursuant to its police power. The court found additional support for its decision in the fact that Simms had been given notice that, once he submitted his application, it could only be withdrawn with the Department's permission, and that Simms attempted to withdraw the application only after months of extensive investigation by the Department. Accordingly, the court reversed the judgment of the trial court and vacated the injunction. The court did not reach the issue of Simms’ failure to exhaust his administrative remedies.
The opinion was written by Judge Gemmill and joined by Judges Hall and Winthrop.
Jeremy Simms, as part owner of T.P. Racing L.L.P., submitted an application for certification to the Arizona Department of Gaming to provide off-track betting services to several tribal gaming casinos. After months of investigation, the Department advised Simms of its intent to deny the application, expressing concern that Simms had been involved in questionable business practices, illegal activities, and financial dealings with a person purportedly involved in organized crime. Simms appealed the decision and an administrative hearing was scheduled. Before the hearing occurred, Simms filed a special action and motion for preliminary injunction in superior court, seeking to prevent the Department from denying the license and alleging that the Department insisted on denying the application even though Simms offered to withdraw it. In the superior court, the State argued that the Department has inherent power to deny a request to withdraw an application under the State's police power. Simms argued that, because his withdrawal made him a non-applicant, the State had no statutory power to proceed against him. The superior court ruled in favor of Simms, reasoning that the Department's authority derived from the relevant tribal-gaming compact rather than from the State's exercise of police power, and that the Department therefore did not have the power to deny a request to withdraw.
On appeal, the State reasserted its position that the Department's right to deny a request to withdraw an application springs from the State's police power -- specifically, from the statutes that authorize the Department to certify gaming employees. Examining the scope of the Department's authority under the applicable state and federal statutes -- in particular the federal Indian Gaming Regulatory Act -- the court of appeals agreed. The federal statutory scheme, the court held, authorized states to exercise their police power through tribal-state compacts to keep gaming free from criminal elements and to protect the gaming public. Arizona's statutes are founded on the federal scheme, as are the tribal-state compacts to which the State is a party. The court concluded that although the tribal-state compact is the mechanism through which regulation by the state is possible, the regulating activities are an exercise of the State's police power and not merely an exercise of a contractual right. In this instance, the Department did not exceed its authority by denying Simms' request to withdraw his application pursuant to its police power. The court found additional support for its decision in the fact that Simms had been given notice that, once he submitted his application, it could only be withdrawn with the Department's permission, and that Simms attempted to withdraw the application only after months of extensive investigation by the Department. Accordingly, the court reversed the judgment of the trial court and vacated the injunction. The court did not reach the issue of Simms’ failure to exhaust his administrative remedies.
The opinion was written by Judge Gemmill and joined by Judges Hall and Winthrop.
Posted by azapp @ Wed, Aug 6, 2003
City of Phoenix v. ADEQ et. al.: Division One Holds That Arizona's Administrative Review Procedures (A.R.S. 41-1092 -- 1092.12) ("Article 10") Are Not Pre-empted By The Federal Resource Conservation And Recovery Act ("RCRA") And Do Not Conflict With The Arizona Administrative Code ("A.A.C.") R18-8271(Q) And -271(N).
On April 12, 2001, ADEQ issued a permit to a waste-utilization company authorizing the treatment and storage of hazardous waste. The City of Phoenix challenged the permit by filing simultaneous parallel proceedings in superior court and for administrative review by an ADEQ hearing board, arguing (1) that Article 10 was preempted by RCRA because it had not yet been approved by the EPA; (2) that Article 10 conflicted with A.A.C. R18-8271(Q) and -271(N), provisions that govern appeals of hazardous waste permit decisions; and (3) that the issuance of the permit was arbitrary and capricious, an abuse of discretion, and in excess of ADEQ's authority. In the administrative hearing, the ALJ upheld the issuance of the permit, which action was adopted by the Director of ADEQ, thereby exhausting the City's administrative remedies. Subsequently, ADEQ moved to dismiss the complaint in superior court for failure to state a claim for which relief could be granted. On April 26, 2002, citing Boyes v. Shell Oil Products Co., 199 F.3d 1260 (11th Cir. 2000), the superior court granted ADEQ's motion to dismiss in an unsigned minute entry. In its denial of the City's subsequent Motion to Transfer and Consolidate Cases, the trial court specifically noted that the dismissal of all three counts of the City's Complaint was with prejudice.
The City appealed to Division One on seven issues, although the Court of Appeals addressed only two: (1) Is Article 10 preempted by RCRA because it had not yet been approved by the EPA?, and (2) Does Article 10 conflict with A.A.C. R18-8-271(N) and -271(Q)? The court answered each question in the negative. As to the first issue, the court held that RCRA did not explicitly, impliedly, or by conflict pre-empt RCRA. In doing so, it distinguished Gade v. National Solid Wastes Mgt. Ass’n, 505 U.S. 88 (1992), on the grounds that in this case the EPA had already explicitly approved Arizona's regulatory scheme to act in lieu of RCRA, and that Article 10 did not affect the Act's already-approved substantive requirements. The court agreed with the superior court that Boyes governed the preemption issue. As to the second issue, the court held that, contrary to the City’s contention, Article 10 does not change the effective date of ADEQ's final permit decision, and that Article 10's replacement of -271(Q) creates no statutory conflict. The court accordingly affirmed the trial court's judgment on these issues.
The opinion was written by Judge Winthrop and joined by Judge Hall and Judge Pro Tempore Michael D. Yarnell.
On April 12, 2001, ADEQ issued a permit to a waste-utilization company authorizing the treatment and storage of hazardous waste. The City of Phoenix challenged the permit by filing simultaneous parallel proceedings in superior court and for administrative review by an ADEQ hearing board, arguing (1) that Article 10 was preempted by RCRA because it had not yet been approved by the EPA; (2) that Article 10 conflicted with A.A.C. R18-8271(Q) and -271(N), provisions that govern appeals of hazardous waste permit decisions; and (3) that the issuance of the permit was arbitrary and capricious, an abuse of discretion, and in excess of ADEQ's authority. In the administrative hearing, the ALJ upheld the issuance of the permit, which action was adopted by the Director of ADEQ, thereby exhausting the City's administrative remedies. Subsequently, ADEQ moved to dismiss the complaint in superior court for failure to state a claim for which relief could be granted. On April 26, 2002, citing Boyes v. Shell Oil Products Co., 199 F.3d 1260 (11th Cir. 2000), the superior court granted ADEQ's motion to dismiss in an unsigned minute entry. In its denial of the City's subsequent Motion to Transfer and Consolidate Cases, the trial court specifically noted that the dismissal of all three counts of the City's Complaint was with prejudice.
The City appealed to Division One on seven issues, although the Court of Appeals addressed only two: (1) Is Article 10 preempted by RCRA because it had not yet been approved by the EPA?, and (2) Does Article 10 conflict with A.A.C. R18-8-271(N) and -271(Q)? The court answered each question in the negative. As to the first issue, the court held that RCRA did not explicitly, impliedly, or by conflict pre-empt RCRA. In doing so, it distinguished Gade v. National Solid Wastes Mgt. Ass’n, 505 U.S. 88 (1992), on the grounds that in this case the EPA had already explicitly approved Arizona's regulatory scheme to act in lieu of RCRA, and that Article 10 did not affect the Act's already-approved substantive requirements. The court agreed with the superior court that Boyes governed the preemption issue. As to the second issue, the court held that, contrary to the City’s contention, Article 10 does not change the effective date of ADEQ's final permit decision, and that Article 10's replacement of -271(Q) creates no statutory conflict. The court accordingly affirmed the trial court's judgment on these issues.
The opinion was written by Judge Winthrop and joined by Judge Hall and Judge Pro Tempore Michael D. Yarnell.
Posted by azapp @ Wed, Aug 6, 2003
Tuesday, August 5, 2003
Arizona v. Box: Division Two Holds That Officer Who Stops Motorist For Speeding Need Not Be Same Officer Who Observed Speeding, And That Dog-Sniff Of Car Trunk Was Not Unreasonable Search Where Conducted Quickly Following Brief Post-Traffic-Stop Consensual Conversation.
Lenny Box was observed speeding by a police officer who, because he had two people in his car, did not stop Box himself. Instead, he summoned another officer who pulled Box over for speeding. After issuing Box a warning for speeding, the officer asked Box where he was coming from, where he had been staying, and whether there were drugs in his car (Box claimed there were not). The officer then used a drug-sniffing dog that was in his patrol car to examine Box's car. The dog quickly detected marijuana in the trunk, and the officer, after removing packages of marijuana from the trunk, arrested Box. Box moved to suppress the marijuana at his trial, but his motion was denied and he was convicted of transporting marijuana for sale and sentenced to five years' imprisonment.
On appeal to Division Two, Box first argued that the officer who pulled him over had no authority to do so, because the statutes authorizing traffic stops require the officer who pulls over a motorist to have personally seen the motorist speeding. The court rejected this argument, examining the pertinent statutes (A.R.S. 28-1594 and A.R.S. 13-3883(B)) and concluding, based on their plain language and context, that they do not require the officer who stops a motorist to have personally witnessed the speeding. Box also argued that the trial court should have suppressed the marijuana found in his trunk, because it was the fruit of an unreasonable search in violation of his Fourth Amendment rights. The court rejected this argument as well. The court noted that the strongest point in Box's favor was that the officer had conducted the dog-sniff after issuing the traffic warning, meaning that the detention of the car was no longer necessary in connection with the traffic stop. The court concluded, however, that the continuing detention of the car in connection with the dog-sniff was a "de minimus" additional intrusion on Box's liberty. The court stressed that the post-traffic-stop conversation between Box and the officer seemed consensual, and that the dog was in the officer's car, meaning that no substantial additional period of time was needed to conduct the dog-sniff. The court accordingly affirmed Box's conviction and sentence.
The opinion was written by Chief Judge Espinosa, and joined by Judges Pelander and Druke.
Lenny Box was observed speeding by a police officer who, because he had two people in his car, did not stop Box himself. Instead, he summoned another officer who pulled Box over for speeding. After issuing Box a warning for speeding, the officer asked Box where he was coming from, where he had been staying, and whether there were drugs in his car (Box claimed there were not). The officer then used a drug-sniffing dog that was in his patrol car to examine Box's car. The dog quickly detected marijuana in the trunk, and the officer, after removing packages of marijuana from the trunk, arrested Box. Box moved to suppress the marijuana at his trial, but his motion was denied and he was convicted of transporting marijuana for sale and sentenced to five years' imprisonment.
On appeal to Division Two, Box first argued that the officer who pulled him over had no authority to do so, because the statutes authorizing traffic stops require the officer who pulls over a motorist to have personally seen the motorist speeding. The court rejected this argument, examining the pertinent statutes (A.R.S. 28-1594 and A.R.S. 13-3883(B)) and concluding, based on their plain language and context, that they do not require the officer who stops a motorist to have personally witnessed the speeding. Box also argued that the trial court should have suppressed the marijuana found in his trunk, because it was the fruit of an unreasonable search in violation of his Fourth Amendment rights. The court rejected this argument as well. The court noted that the strongest point in Box's favor was that the officer had conducted the dog-sniff after issuing the traffic warning, meaning that the detention of the car was no longer necessary in connection with the traffic stop. The court concluded, however, that the continuing detention of the car in connection with the dog-sniff was a "de minimus" additional intrusion on Box's liberty. The court stressed that the post-traffic-stop conversation between Box and the officer seemed consensual, and that the dog was in the officer's car, meaning that no substantial additional period of time was needed to conduct the dog-sniff. The court accordingly affirmed Box's conviction and sentence.
The opinion was written by Chief Judge Espinosa, and joined by Judges Pelander and Druke.
Posted by azapp @ Tue, Aug 5, 2003
