AZAPP is a blog that provides a thorough, up-to-date, and efficient resource to stay abreast of significant developments concerning civil cases in Arizona's appellate courts - the two Divisions of the Arizona Court of Appeals and the Arizona Supreme Court.
AZAPP Update (Subscribe)
Contributors
Archives
AZAPP Blog
Monday, February 28, 2005
Grand Canyon Trust v. Arizona Corporation Commision and Tucson Electric Power Company: Division One Affirms ACC Decision Authorizing Construction of Coal-Powered Electric Generating Unit at TEP’s Springerville Generating Station
In 1986, TEP filed for and received a certificate of environmental compatibility (“CEC”) for the construction of a coal-powered electric generating unit. The CEC was approved by the Commission. In 2001, TEP announced plans to begin construction of the unit. The Grand Canyon Trust filed with the Commission a Motion to Rescind, Alter or Amend its decision regarding the CEC; TEP filed a Motion to Dismiss Grand Canyon’s motion and an Application for Hearing to address the issue of the need for a new power generating unit. Upon stipulation of the parties, the Commission held a single hearing and issued a decision that TEP had made a showing of need for the new unit, but conditioned the construction of the unit on the existence of “firm wholesale contracts for power.” Grand Canyon and The Land and Water Fund of the Rockies (collectively “the Trust”) filed an action in superior court to set aside or modify the Commission’s decision and TEP intervened. The superior court affirmed the Commission’s decision and the Trust appealed.
The court of appeals reviewed the Commission’s legal determinations de novo and reviewed its factual determinations to determine whether they were supported by substantial evidence. Writing for a unanimous panel, Judge Snow affirmed the lower court’s finding that the statutory scheme A.R.S. § 40-360.07(B) did not require the Commission to engage in the balancing test outlined in the statute. Even so, the Commission had incorporated of the provisions of this section as a condition in the CEC and therefore had to balance the need for power against minimizing environmental costs.
The court upheld the Commission’s determination of the need for power and found that it was supported by substantial evidence. First, the court upheld the Commission’s determination that wholesale power customers of TEP are included within its “customers” for purposes of establishing need. Second, the court found that the statute gave the Commission considerable discretion in determining the “need for power” and affirmed the Commission’s right to consider the market for power in making its determination of need. The testimony introduced at the Commission hearing regarding the need for power for in-state retail consumers and wholesale purchasers constituted “substantial evidence” of the need for power.
Lastly, the court reject TEP’s request for attorneys’ fees pursuant to A.R.S. § 12-348(A)(2). Referring to the statute’s legislative findings and title, Judge Snow found the court only was authorized to require a governmental entity to pay a fee award to the prevailing party. The statute makes no provision for a prevailing governmental agency to recover fees against the party challenging its decision.
Judge Snow authored the opinion; Judges Norris and Irvine concurred.
In 1986, TEP filed for and received a certificate of environmental compatibility (“CEC”) for the construction of a coal-powered electric generating unit. The CEC was approved by the Commission. In 2001, TEP announced plans to begin construction of the unit. The Grand Canyon Trust filed with the Commission a Motion to Rescind, Alter or Amend its decision regarding the CEC; TEP filed a Motion to Dismiss Grand Canyon’s motion and an Application for Hearing to address the issue of the need for a new power generating unit. Upon stipulation of the parties, the Commission held a single hearing and issued a decision that TEP had made a showing of need for the new unit, but conditioned the construction of the unit on the existence of “firm wholesale contracts for power.” Grand Canyon and The Land and Water Fund of the Rockies (collectively “the Trust”) filed an action in superior court to set aside or modify the Commission’s decision and TEP intervened. The superior court affirmed the Commission’s decision and the Trust appealed.
The court of appeals reviewed the Commission’s legal determinations de novo and reviewed its factual determinations to determine whether they were supported by substantial evidence. Writing for a unanimous panel, Judge Snow affirmed the lower court’s finding that the statutory scheme A.R.S. § 40-360.07(B) did not require the Commission to engage in the balancing test outlined in the statute. Even so, the Commission had incorporated of the provisions of this section as a condition in the CEC and therefore had to balance the need for power against minimizing environmental costs.
The court upheld the Commission’s determination of the need for power and found that it was supported by substantial evidence. First, the court upheld the Commission’s determination that wholesale power customers of TEP are included within its “customers” for purposes of establishing need. Second, the court found that the statute gave the Commission considerable discretion in determining the “need for power” and affirmed the Commission’s right to consider the market for power in making its determination of need. The testimony introduced at the Commission hearing regarding the need for power for in-state retail consumers and wholesale purchasers constituted “substantial evidence” of the need for power.
Lastly, the court reject TEP’s request for attorneys’ fees pursuant to A.R.S. § 12-348(A)(2). Referring to the statute’s legislative findings and title, Judge Snow found the court only was authorized to require a governmental entity to pay a fee award to the prevailing party. The statute makes no provision for a prevailing governmental agency to recover fees against the party challenging its decision.
Judge Snow authored the opinion; Judges Norris and Irvine concurred.
Posted by azapp @ Mon, Feb 28, 2005
Friday, February 25, 2005
Safeway v. Guerrero: Supreme Court Reverses Court of Appeals and Holds that Lawyer’s Conduct in Negotiating Morris Agreement Does Not Support Tortious Interference Claim.
This complex appeal involving the conduct of a lawyer in negotiating a Morris agreement arises originally out of a car accident in which the plaintiff was severely injured. The defendant was insured and defended by Safeway Insurance, but ultimately entered into a Morris agreement with the plaintiff accepting liability for $12 million (with a covenant not to execute) and assigning his bad faith claim against Safeway to plaintiff.
Safeway then sued plaintiff's counsel, Guerrero, alleging that he had engaged in a scheme to set up the bad faith claim against Safeway so as to allow the attorney to collect a substantially larger fee than would be available under the $15,000 policy at issue. To carry out the scheme, the attorney allegedly made and withdrew a policy-limits settlement offer. Safeway contended that a settlement agreement had been reached before the withdrawal, but a jury ultimately decided that issue against Safeway. After the jury decided that no settlement agreement had been reached, the plaintiff, through her attorney, and the insured entered into the Morris agreement on the theory that Safeway had breached its duty to give equal consideration to the insured's interest by not promptly accepting the policy-limits demand.
The trial court granted summary judgment to Guerrero. The Court of Appeals reversed holding that there was evidence that the Safeway had not breached its equal consideration obligation and that pursuing a Morris agreement on these grounds "is clearly outside the permissible scope of such agreements."
The Supreme Court reversed the Court of Appeals and affirmed summary judgment. The Court held that Guerrero’s alleged conduct was insufficient to satisfy the “improper conduct” element of the tort of tortious interference with contractual relations. Specifically, the Court held that a mere finding that Safeway did not breach its contractual duties to its insureds would not support the tort. According to the Court, a contrary rule would negate the utility of Morris agreements by subjecting lawyers to potential tort liability every time a bad faith claim was ultimately unsuccessful. The Court likewise held that the fact that a lawyer, when negotiating a Morris agreement, knew the insurer had not breached its duty could not qualify as improper conduct. Rather, this only satisfies the requirement that the lawyer act intentionally.
The Supreme Court then addressed the other improper motives and improper means alleged by Safeway to determine if these were sufficient to establish improper conduct under the tort. The Court held that Guerrero’s alleged motive to seek increased fees by maximizing an award for a client is not improper. The court also concluded that Guerrero did not improperly withdraw the $15,000 settlement offer noting that a jury had already concluded that Safeway did not accept the offer, so Guerrero was free to withdraw it. Guerrero’s use of the “threat” of a multi-million dollar verdict to induce the insured to enter the Morris agreement was likewise not improper given the unchallenged evidence of the insured’s liability. Lastly, the allegation that Guerrero misrepresented facts related to settlement positions to the insured’s attorney would not support a finding of improper conduct given that the insured’s attorney has a special relationship with the insurer and had access to the insurer and the insurer to him.
Justice Hurwitz wrote the opinion for the unanimous court. (Vice-Chief Justice McGregor recused herself and Judge Pelander from Division Two sat in her stead.)
This complex appeal involving the conduct of a lawyer in negotiating a Morris agreement arises originally out of a car accident in which the plaintiff was severely injured. The defendant was insured and defended by Safeway Insurance, but ultimately entered into a Morris agreement with the plaintiff accepting liability for $12 million (with a covenant not to execute) and assigning his bad faith claim against Safeway to plaintiff.
Safeway then sued plaintiff's counsel, Guerrero, alleging that he had engaged in a scheme to set up the bad faith claim against Safeway so as to allow the attorney to collect a substantially larger fee than would be available under the $15,000 policy at issue. To carry out the scheme, the attorney allegedly made and withdrew a policy-limits settlement offer. Safeway contended that a settlement agreement had been reached before the withdrawal, but a jury ultimately decided that issue against Safeway. After the jury decided that no settlement agreement had been reached, the plaintiff, through her attorney, and the insured entered into the Morris agreement on the theory that Safeway had breached its duty to give equal consideration to the insured's interest by not promptly accepting the policy-limits demand.
The trial court granted summary judgment to Guerrero. The Court of Appeals reversed holding that there was evidence that the Safeway had not breached its equal consideration obligation and that pursuing a Morris agreement on these grounds "is clearly outside the permissible scope of such agreements."
The Supreme Court reversed the Court of Appeals and affirmed summary judgment. The Court held that Guerrero’s alleged conduct was insufficient to satisfy the “improper conduct” element of the tort of tortious interference with contractual relations. Specifically, the Court held that a mere finding that Safeway did not breach its contractual duties to its insureds would not support the tort. According to the Court, a contrary rule would negate the utility of Morris agreements by subjecting lawyers to potential tort liability every time a bad faith claim was ultimately unsuccessful. The Court likewise held that the fact that a lawyer, when negotiating a Morris agreement, knew the insurer had not breached its duty could not qualify as improper conduct. Rather, this only satisfies the requirement that the lawyer act intentionally.
The Supreme Court then addressed the other improper motives and improper means alleged by Safeway to determine if these were sufficient to establish improper conduct under the tort. The Court held that Guerrero’s alleged motive to seek increased fees by maximizing an award for a client is not improper. The court also concluded that Guerrero did not improperly withdraw the $15,000 settlement offer noting that a jury had already concluded that Safeway did not accept the offer, so Guerrero was free to withdraw it. Guerrero’s use of the “threat” of a multi-million dollar verdict to induce the insured to enter the Morris agreement was likewise not improper given the unchallenged evidence of the insured’s liability. Lastly, the allegation that Guerrero misrepresented facts related to settlement positions to the insured’s attorney would not support a finding of improper conduct given that the insured’s attorney has a special relationship with the insurer and had access to the insurer and the insurer to him.
Justice Hurwitz wrote the opinion for the unanimous court. (Vice-Chief Justice McGregor recused herself and Judge Pelander from Division Two sat in her stead.)
Related postings:
Posted by azapp @ Fri, Feb 25, 2005
Tuesday, February 22, 2005
Articles: Argument in Racial Profiling Case, Chief Justice's Apology to Legislature, Op-Ed Piece on Changes in the Arizona Supreme Court
An article appearing on azcentral.com describes the arguments before the Arizona Supreme Court in Jones v. Sterling. A second article discusses a statement issued by the Attorney General's Office regarding statements made in that argument relating to the constitutionality of race-based traffic stops by the Assistant Attorney General who presented the argument. Another article discusses a letter of apology written to the Legislature by Chief Justice Charles E. Jones regarding comments he had made to the East Valley Tribune. An Op-Ed piece discusses the change in personnel that will occur at the Arizona Supreme Court with Chief Justice Jones' retirement.
An article appearing on azcentral.com describes the arguments before the Arizona Supreme Court in Jones v. Sterling. A second article discusses a statement issued by the Attorney General's Office regarding statements made in that argument relating to the constitutionality of race-based traffic stops by the Assistant Attorney General who presented the argument. Another article discusses a letter of apology written to the Legislature by Chief Justice Charles E. Jones regarding comments he had made to the East Valley Tribune. An Op-Ed piece discusses the change in personnel that will occur at the Arizona Supreme Court with Chief Justice Jones' retirement.
Posted by azapp @ Tue, Feb 22, 2005
Monday, February 21, 2005
State ex rel. Goddard v. Gravano: Division One Panel Rules that Civil Forfeiture Does Not Violate Federal, Arizona Constitutions.
In February 2000, Debra Gravano, former wife of Salvatore “Sammy the Bull” Gravano, was arrested, along with other family members, for her involvement as banker in the family ecstasy enterprise. The State alleged that the drug ring netted almost $1 million from ecstasy sales in Arizona. While criminal charges were pending against Ms. Gravano, the State filed in personam and in rem civil forfeiture actions against the Gravanos under the Arizona Racketeering Act, A.R.S. § 13-2314, seeking approximately $933,750 of proceeds from drug sales. After Ms. Gravano pled guilty in late 2000 to one count of conducting a criminal enterprise, the State moved for summary judgment in the civil forfeiture case, asserting that Ms. Gravano’s guilty plea estopped her from denying the facts of her offense. The trial court agreed and granted the State’s motion for partial summary judgment and imposed attorneys’ fees and costs in the amount of $805,713.41.
Ms. Gravano challenged the forfeiture on the grounds that it violated her double jeopardy rights under the United States and Arizona Constitutions, constituted an unconstitutionally excessive fine, violated her plea agreement and the forfeiture of estate provision in Arizona Constitution Art. 2, §16.
The Court, focusing only on the in personam disgorgement of the criminal enterprise proceeds, first considered Ms. Gravano’s federal and state double jeopardy arguments. The Court held that under United States v. Hudson, 522 U.S. 93 (1997), the forfeiture of more than $900,000 was not criminal punishment because Arizona’s forfeiture statute is a civil action and not “so punitive either in purpose or effect” as to “transform what was clearly intended as a civil remedy into a criminal penalty.” Ms. Gravano argued that the Court should follow New Mexico courts and interpret the state Double Jeopardy Clause more broadly than the federal Double Jeopardy Clause. The Court flatly rejected this invitation, noting that the Arizona provision parallels the federal provision and pointing out that, unlike New Mexico forfeiture statutes, Arizona statutes specifically compensate for societal costs and government expenditures. See A.R.S. §§ 13-2314(D)(5), 13-2318.
The Court next found that the forfeiture did not violate the federal constitutional prohibition against excessive fines, because the forfeiture was remedial, not punitive, and thus, not a “fine”. Even if considered a “fine,” the forfeiture was not excessive because it was not grossly disproportionate to the “weighty” criminal penalties (twenty-five years to life) imposed for criminal conviction (though Gravano only received probation).
The Court quickly dismissed Ms. Gravano’s argument that the civil forfeiture violated her plea agreement, pointing out that the agreement explicitly contemplated a subsequent civil forfeiture action.
The civil forfeiture also did not violate the Arizona constitutional provision against forfeiture of estate – “No conviction shall work corruption of blood, or forfeiture of estate” – because a proceeds-based forfeiture is qualitatively different and statutorily authorized. The civil forfeiture is “designed to remove the financial incentives of the crime and the financial ability to further engage in crime while compensating victims ad reimbursing the State for expenses.”
The Court affirmed the award of attorneys’ fees and costs, holding that the award, though based on very general descriptions of work performed, was not an abuse of discretion. This was particularly true because Ms. Gravano failed to request a hearing to challenge the lack of detail in the State’s affidavit of fees and costs. Finally, the fees and costs award were not Excessive Fines for the same reason the underlying forfeiture was not – the award was not disproportionate because it represented actual expenditures of government resources. Partial summary judgment for the State affirmed; award of attorneys’ fees and costs upheld.
Judge Weisberg authored the opinion. Presiding Judge Winthrop and Judge Pro Tempore Kongable joined.
In February 2000, Debra Gravano, former wife of Salvatore “Sammy the Bull” Gravano, was arrested, along with other family members, for her involvement as banker in the family ecstasy enterprise. The State alleged that the drug ring netted almost $1 million from ecstasy sales in Arizona. While criminal charges were pending against Ms. Gravano, the State filed in personam and in rem civil forfeiture actions against the Gravanos under the Arizona Racketeering Act, A.R.S. § 13-2314, seeking approximately $933,750 of proceeds from drug sales. After Ms. Gravano pled guilty in late 2000 to one count of conducting a criminal enterprise, the State moved for summary judgment in the civil forfeiture case, asserting that Ms. Gravano’s guilty plea estopped her from denying the facts of her offense. The trial court agreed and granted the State’s motion for partial summary judgment and imposed attorneys’ fees and costs in the amount of $805,713.41.
Ms. Gravano challenged the forfeiture on the grounds that it violated her double jeopardy rights under the United States and Arizona Constitutions, constituted an unconstitutionally excessive fine, violated her plea agreement and the forfeiture of estate provision in Arizona Constitution Art. 2, §16.
The Court, focusing only on the in personam disgorgement of the criminal enterprise proceeds, first considered Ms. Gravano’s federal and state double jeopardy arguments. The Court held that under United States v. Hudson, 522 U.S. 93 (1997), the forfeiture of more than $900,000 was not criminal punishment because Arizona’s forfeiture statute is a civil action and not “so punitive either in purpose or effect” as to “transform what was clearly intended as a civil remedy into a criminal penalty.” Ms. Gravano argued that the Court should follow New Mexico courts and interpret the state Double Jeopardy Clause more broadly than the federal Double Jeopardy Clause. The Court flatly rejected this invitation, noting that the Arizona provision parallels the federal provision and pointing out that, unlike New Mexico forfeiture statutes, Arizona statutes specifically compensate for societal costs and government expenditures. See A.R.S. §§ 13-2314(D)(5), 13-2318.
The Court next found that the forfeiture did not violate the federal constitutional prohibition against excessive fines, because the forfeiture was remedial, not punitive, and thus, not a “fine”. Even if considered a “fine,” the forfeiture was not excessive because it was not grossly disproportionate to the “weighty” criminal penalties (twenty-five years to life) imposed for criminal conviction (though Gravano only received probation).
The Court quickly dismissed Ms. Gravano’s argument that the civil forfeiture violated her plea agreement, pointing out that the agreement explicitly contemplated a subsequent civil forfeiture action.
The civil forfeiture also did not violate the Arizona constitutional provision against forfeiture of estate – “No conviction shall work corruption of blood, or forfeiture of estate” – because a proceeds-based forfeiture is qualitatively different and statutorily authorized. The civil forfeiture is “designed to remove the financial incentives of the crime and the financial ability to further engage in crime while compensating victims ad reimbursing the State for expenses.”
The Court affirmed the award of attorneys’ fees and costs, holding that the award, though based on very general descriptions of work performed, was not an abuse of discretion. This was particularly true because Ms. Gravano failed to request a hearing to challenge the lack of detail in the State’s affidavit of fees and costs. Finally, the fees and costs award were not Excessive Fines for the same reason the underlying forfeiture was not – the award was not disproportionate because it represented actual expenditures of government resources. Partial summary judgment for the State affirmed; award of attorneys’ fees and costs upheld.
Judge Weisberg authored the opinion. Presiding Judge Winthrop and Judge Pro Tempore Kongable joined.
Posted by azapp @ Mon, Feb 21, 2005
Tuesday, February 15, 2005
Article on Arizona Supreme Court
An article appearing on azcentral.com reports that Arizona Supreme Court Justice Ruth V. McGregor will become Chief Justice in June, when current Chief Justice Charles E. Jones turns 70 and becomes subject to mandatory retirement. Justice Rebecca White Berch will become Vice Chief Justice.
An article appearing on azcentral.com reports that Arizona Supreme Court Justice Ruth V. McGregor will become Chief Justice in June, when current Chief Justice Charles E. Jones turns 70 and becomes subject to mandatory retirement. Justice Rebecca White Berch will become Vice Chief Justice.
Posted by azapp @ Tue, Feb 15, 2005
City of Tucson v. Clear Channel Outdoor, Inc.: Arizona Supreme Court Clarifies Rules Regarding the Retroactive Application of New Statutes of Limitation.
The City of Tucson has a “sign code,” regulating the size, location, and height of billboards. In 1994, the state legislature enacted A.R.S. § 9-462.02, which effectively “grandfathered” existing billboards that did not conform with such ordinances as Tucson’s sign code by prohibiting municipalities from requiring billboard owners to waive the right to continue their use as a precondition for the issuance of a permit or other similar approvals. In 2000, the legislature enacted A.R.S. § 9-462.02(C), imposing a 2-year statute of limitations on municipalities to cite and file an action against the owner of a non-conforming billboard after discovery of the violation. Just prior to the effective date of § 9-462.02(C), Tucson filed a 122-count complaint against Clear Channel for non-conforming billboards. A year later, Tucson amended its Complaint to add an additional 51 counts. The superior court found that 89 of the 173 counts were outside the 2-year statute of limitations period, and that § 9-462.02(C) therefore barred those claims. The court of appeals affirmed, holding that A.R.S. § 12-505, governing the effect of laws changing the statute of limitations, permitted the statute to be applied retroactively.
On appeal, the Arizona Supreme Court vacated the lower courts’ opinions. As to the counts brought before the effective date of § 9-462.02(C), the Court held that, absent an express legislative statement to the contrary, procedural changes in the law are not retroactive when the procedure at issue was completed in accordance with the law then in effect, and that the law in effect at the time of filing applies. The Court declined to read § 12-505(B) as barring claims filed before the effective date of the new statute of limitations, holding that the provisions of § 12-505 were most reasonably intended to apply to suits filed after the new statute’s effective date. As to the counts brought after the effective date of § 9-462.02(C), the Court applied the framework of § 12-505, which the Court interpreted. It held that, pursuant to § 12-505(C), when a cause of action is not barred by pre-existing law but the application of the new statute of limitations would bar the claim, as here, the plaintiff has one year from the effective date of the new law to file suit. In this case, the claims in Tucson’s Amended Complaint were timely because they were filed within a year of the effective date of § 9-462.02(C).
Opinion By Justice Hurwitz, Chief Justice Jones, Vice Chief Justice McGregor, and Justice Ryan Concurring. Justice Berch Concurred in Part and Dissented in Part.
The City of Tucson has a “sign code,” regulating the size, location, and height of billboards. In 1994, the state legislature enacted A.R.S. § 9-462.02, which effectively “grandfathered” existing billboards that did not conform with such ordinances as Tucson’s sign code by prohibiting municipalities from requiring billboard owners to waive the right to continue their use as a precondition for the issuance of a permit or other similar approvals. In 2000, the legislature enacted A.R.S. § 9-462.02(C), imposing a 2-year statute of limitations on municipalities to cite and file an action against the owner of a non-conforming billboard after discovery of the violation. Just prior to the effective date of § 9-462.02(C), Tucson filed a 122-count complaint against Clear Channel for non-conforming billboards. A year later, Tucson amended its Complaint to add an additional 51 counts. The superior court found that 89 of the 173 counts were outside the 2-year statute of limitations period, and that § 9-462.02(C) therefore barred those claims. The court of appeals affirmed, holding that A.R.S. § 12-505, governing the effect of laws changing the statute of limitations, permitted the statute to be applied retroactively.
On appeal, the Arizona Supreme Court vacated the lower courts’ opinions. As to the counts brought before the effective date of § 9-462.02(C), the Court held that, absent an express legislative statement to the contrary, procedural changes in the law are not retroactive when the procedure at issue was completed in accordance with the law then in effect, and that the law in effect at the time of filing applies. The Court declined to read § 12-505(B) as barring claims filed before the effective date of the new statute of limitations, holding that the provisions of § 12-505 were most reasonably intended to apply to suits filed after the new statute’s effective date. As to the counts brought after the effective date of § 9-462.02(C), the Court applied the framework of § 12-505, which the Court interpreted. It held that, pursuant to § 12-505(C), when a cause of action is not barred by pre-existing law but the application of the new statute of limitations would bar the claim, as here, the plaintiff has one year from the effective date of the new law to file suit. In this case, the claims in Tucson’s Amended Complaint were timely because they were filed within a year of the effective date of § 9-462.02(C).
Opinion By Justice Hurwitz, Chief Justice Jones, Vice Chief Justice McGregor, and Justice Ryan Concurring. Justice Berch Concurred in Part and Dissented in Part.
Posted by azapp @ Tue, Feb 15, 2005
Monday, February 14, 2005
Briefs in Bennett v. Brownlow
AZAPP has received the Supreme Court briefing for Bennett v. Brownlow, the First Amendment case involving a Yavapai County ordinance. The Court of Appeals decision was covered in this previous post. The Supreme Court will hear oral argument on the case tomorrow at 9:30 a.m.
Here are the briefs:
Petition for Review
Response to Petition for Review
Petitioner's Supplemental Brief (merits brief)
Respondent's Supplemental Brief (merits brief)
AZAPP has received the Supreme Court briefing for Bennett v. Brownlow, the First Amendment case involving a Yavapai County ordinance. The Court of Appeals decision was covered in this previous post. The Supreme Court will hear oral argument on the case tomorrow at 9:30 a.m.
Here are the briefs:
Petition for Review
Response to Petition for Review
Petitioner's Supplemental Brief (merits brief)
Respondent's Supplemental Brief (merits brief)
Posted by azapp @ Mon, Feb 14, 2005
Friday, February 11, 2005
Arizona Supreme Court Issues Minutes
The Arizona Supreme Court has issued its February 8 Minutes in two parts, Part A and Part B. The Court reviewed four requests for special action review, granting one. In one case, the Court explained that it was dismissing the petition because the petitioners failed to file a timely Petition for Review, and the Court "will not treat a Petition for Special Action as a substitute for an untimely Petition for Review." The Court ruled on 35 Petitions for Review, granting five. One of the granted cases is Arizona State Democratic Party v. State of Arizona, dealing with the application of A.R.S. § 16-919 to money contributed by a corporation or labor organization to a political party.
The Arizona Supreme Court has issued its February 8 Minutes in two parts, Part A and Part B. The Court reviewed four requests for special action review, granting one. In one case, the Court explained that it was dismissing the petition because the petitioners failed to file a timely Petition for Review, and the Court "will not treat a Petition for Special Action as a substitute for an untimely Petition for Review." The Court ruled on 35 Petitions for Review, granting five. One of the granted cases is Arizona State Democratic Party v. State of Arizona, dealing with the application of A.R.S. § 16-919 to money contributed by a corporation or labor organization to a political party.
Posted by azapp @ Fri, Feb 11, 2005
Wednesday, February 9, 2005
Martin v. Schroeder: Division Two Panel Rules that Giving a Gun to a Drug Addict May Support a Claim of Negligence Per Se, But Not in this Case
Defendant parents gave their adult son a gun so that he could earn more money as a security guard. Before that, when he had been in high-school, he was treated for an addiction to marijuana. After completing treatment, his parents continued to give him random urinalysis tests for marijuana use. The results of these tests were clean. At the age of eighteen he moved out of the house. He then married, had a child, and got the job as a security guard.
Sometime after receiving the gun from his parents, the son accidentally shot the plaintiff in the head while he and plaintiff were smoking marijuana together. Plaintiff sued the parents for his injuries claiming negligent entrustment and negligence per se. The trial court granted the parents' motion for summary judgment on these claims.
The Court of Appeals upheld the trial court’s grant of summary judgment. The court held that knowledge of a previous addiction to marijuana, without something more, is insufficient to impose a duty on the parents for plaintiff’s benefit. The court further found that plaintiff had not raised a genuine issue of material fact concerning whether the parents knew or should have known that the son was using marijuana contemporaneous with them giving him the gun. Thus, the plaintiff could not prevail on his negligent entrustment claim.
Plaintiff also argued that the trial court erred in rejecting his claim of negligence per se. Under 18 U.S.C. § 922, it is unlawful to give a firearm to a person “knowing or having reason to believe that such person . . . is an unlawful user of or addicted to any controlled substance.” The court acknowledged a split of authority about whether the statute imposes a per se tort duty, but concluded that because the statute was at least in part a public safety statute, Arizona should recognize civil liability for its violation.
Having held that 18 U.S.C. § 922 imposed a tort duty, the court nonetheless found that plaintiff had not produced evidence that, at the time the parents gave the son the firearm, they knew or had reason to believe he was addicted to marijuana within the meaning of the statute. Summary judgment was upheld.
Presiding Judge Howard wrote the unanimous opinion. Judges Brammer and Eckerstrom concurred.
Defendant parents gave their adult son a gun so that he could earn more money as a security guard. Before that, when he had been in high-school, he was treated for an addiction to marijuana. After completing treatment, his parents continued to give him random urinalysis tests for marijuana use. The results of these tests were clean. At the age of eighteen he moved out of the house. He then married, had a child, and got the job as a security guard.
Sometime after receiving the gun from his parents, the son accidentally shot the plaintiff in the head while he and plaintiff were smoking marijuana together. Plaintiff sued the parents for his injuries claiming negligent entrustment and negligence per se. The trial court granted the parents' motion for summary judgment on these claims.
The Court of Appeals upheld the trial court’s grant of summary judgment. The court held that knowledge of a previous addiction to marijuana, without something more, is insufficient to impose a duty on the parents for plaintiff’s benefit. The court further found that plaintiff had not raised a genuine issue of material fact concerning whether the parents knew or should have known that the son was using marijuana contemporaneous with them giving him the gun. Thus, the plaintiff could not prevail on his negligent entrustment claim.
Plaintiff also argued that the trial court erred in rejecting his claim of negligence per se. Under 18 U.S.C. § 922, it is unlawful to give a firearm to a person “knowing or having reason to believe that such person . . . is an unlawful user of or addicted to any controlled substance.” The court acknowledged a split of authority about whether the statute imposes a per se tort duty, but concluded that because the statute was at least in part a public safety statute, Arizona should recognize civil liability for its violation.
Having held that 18 U.S.C. § 922 imposed a tort duty, the court nonetheless found that plaintiff had not produced evidence that, at the time the parents gave the son the firearm, they knew or had reason to believe he was addicted to marijuana within the meaning of the statute. Summary judgment was upheld.
Presiding Judge Howard wrote the unanimous opinion. Judges Brammer and Eckerstrom concurred.
Posted by azapp @ Wed, Feb 9, 2005
Friday, February 4, 2005
Chief and Vice Chief Weigh In On Legislative Efforts to Modify the Judicial System.
An article in the East Valley Tribune discusses the reactions of Chief Justice Jones and Vice Chief Justice McGregor to a slate of more than two dozen measures regarding the judicial system that have been introduced in the Legislature. According to the article, Chief Justice Jones characterized these measures as efforts to turn the courts into "political engines of the radical right."
The Arizona State Bar website has a good tool to monitor legislation that the State Bar is tracking. The State Bar's current legislative update describes some of the measures to which the Justices were referring.
An article in the East Valley Tribune discusses the reactions of Chief Justice Jones and Vice Chief Justice McGregor to a slate of more than two dozen measures regarding the judicial system that have been introduced in the Legislature. According to the article, Chief Justice Jones characterized these measures as efforts to turn the courts into "political engines of the radical right."
The Arizona State Bar website has a good tool to monitor legislation that the State Bar is tracking. The State Bar's current legislative update describes some of the measures to which the Justices were referring.
Posted by azapp @ Fri, Feb 4, 2005
Thursday, February 3, 2005
Arizona Supreme Court Cases to be Argued February 15
The Arizona Supreme Court Staff Attorney's Office has issued summaries of the cases to be argued on Tuesday, February 15. The Court will hear argument in three cases: (1) Bennet v. Brownlow, involving the question of whether the First Amendment requires equal access to government property by for-profit and non-profit entities, (2) Jones v. Sterling, involving the question of whether the Court of Appeals erred in declining to accept review of the trial court's refusal to appoint an expert to assit indigent parties in preparing a pretrial motion alleging selective enforcement/racial profiling by state law enforcement officials, and (3) Ry-Tan Construction v. Washington Elementary School District, involving questions relating to a contract dispute between a school district and a contractor engaged in building new classrooms. The summaries are prepared solely for educational purposes and should not be considered official commentary by the Court or any member of the Court.
The Arizona Supreme Court Staff Attorney's Office has issued summaries of the cases to be argued on Tuesday, February 15. The Court will hear argument in three cases: (1) Bennet v. Brownlow, involving the question of whether the First Amendment requires equal access to government property by for-profit and non-profit entities, (2) Jones v. Sterling, involving the question of whether the Court of Appeals erred in declining to accept review of the trial court's refusal to appoint an expert to assit indigent parties in preparing a pretrial motion alleging selective enforcement/racial profiling by state law enforcement officials, and (3) Ry-Tan Construction v. Washington Elementary School District, involving questions relating to a contract dispute between a school district and a contractor engaged in building new classrooms. The summaries are prepared solely for educational purposes and should not be considered official commentary by the Court or any member of the Court.
Posted by azapp @ Thu, Feb 3, 2005
Tuesday, February 1, 2005
Kelley v. Abdo: Division Two Holds That Questioning The Plaintiff Concerning Her Religious Beliefs Constituted Reversible Error In Medical Malpractice Action.
Plaintiff Lona Kelley sued Dr. Joseph Abdo and Cobre Valley Community Hospital after Kelley lost “essentially all of her breast tissue” during breast reduction surgery. In connection with her claim for emotional distress, Kelley testified that her husband began drinking after the surgery, which caused problems taking her children to the Mormon Church. On cross-examination, over Kelley’s objection on Rule 402 and Rule 403 grounds, the defense questioned Kelley concerning her religious beliefs after the surgery, eliciting that she left the Mormon Church and joined the Wicca religion. Kelley argued on appeal that the trial court’s failing to sustain her objections under Rules 402 and 403 constituted an abuse of discretion, and that the questioning constituted fundamental error in violation of Article II § 12 of the Arizona Constitution and Rule 610 of the Arizona Rules of Evidence.
The Court rejected the defendants’ argument that Kelley “opened the door” to the line of questioning, and noted that even if Kelley’s testimony left the impression that she was a practicing Mormon, the cross-examination went well beyond what was necessary to correct any misimpression. The Court further found that the probative value of any rebuttal was clearly outweighed by its prejudicial impact. Although waived as a specific ground for appeal, the Court also considered Article II § 12 of the Arizona Constitution and Rule 610 of the Arizona Rules of Evidence in assessing whether the trial court abused its discretion in overruling a plaintiff’s Rule 403 and relevancy objections. Article II § 12 provides that no person shall “be questioned touching his [or her] religious belief in any court of justice to affect the weight of his testimony.” Rule 610 precludes the admission of “[e]vidence of the beliefs or opinions of a witness on matters of religion . . . for the purpose of showing that by reason of their nature the witness’[s] credibility is impaired or enhanced.” Although not reaching whether allowing the cross-examination constituted fundamental error, the Court noted that such testimony has long been considered highly prejudicial.
But on whether the error required reversal, the panel divided. Judges Florez and Eckerstrom, after discussing the nature of prejudicial error, rejected the defendants’ argument that the admission of the evidence was harmless. Judge Brammer dissented on the ground that the appellant failed to include the complete trial transcript, thereby requiring the Court of Appeals to defer to the trial court’s findings of no prejudice, and to assume that the admitted testimony was not prejudicial based on the omitted portions of the transcript. The majority noted that because the “entire panel has rejected the court’s conclusion under Rule 403,” there was “no additional ‘determination’ to which we must defer.”
Posted by azapp @ Tue, Feb 1, 2005
