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Wednesday, November 22, 2006
Kromko v. Arizona Board of Regents (11/14/06): Division One Panel Finds that University Students Can State a Claim Under "Nearly Free Education" Constitutional Provision Against Board of Regents for Tuition Increase
A complaint filed by four University of Arizona students challenging a tuition increase approved by the Board of Regents and the Legislature's failure to increase funding for the university system was dismissed by the trial court. The trial court found that both the Board and the Legislature were absolutely immune from suit. On appeal, the court unanimously affirmed the dismissal of the Legislature. It held that neither Article 11, section 6 of the Arizona Constitution, which provides that university instruction "shall be as nearly free as possible," nor Article 11, section 10, which provides three broad methods to fund the university system, require that the Legislature increase appropriations to the university system. Such funding decisions are quintessentially legislative and subject to absolute immunity from judicial review.
The court was divided, however, on whether dismissing the Board was appropriate. The majority held that the Board should not have been dismissed. According the majority, the Board was not entitled to the immunity under Arizona's absolute immunity statute, A.R.S. 12-820.01, because declaratory or injunctive relief actions against public entities, such as the one filed by the students against the Board, are not protected by the statute. The majority also determined that the students stated a claim against the Board by alleging that the tuition increase approved by the Board was excessive or unreasonable. The dissenter, Judge Irvine, would have upheld the trial court's decision to dismiss the Board because the student's claim mere allegation that the tuition increase was excessive or unreasonable was, even if true, not enough to establish that the Board had plainly abused its "enormous discretion in setting tuition."
Presiding Judge Portley authored the majority opinion in which Judge Snow concurred. Judge Portley authored a separate decision, in which he concurred in part and dissented in part from the majority opinion.
A complaint filed by four University of Arizona students challenging a tuition increase approved by the Board of Regents and the Legislature's failure to increase funding for the university system was dismissed by the trial court. The trial court found that both the Board and the Legislature were absolutely immune from suit. On appeal, the court unanimously affirmed the dismissal of the Legislature. It held that neither Article 11, section 6 of the Arizona Constitution, which provides that university instruction "shall be as nearly free as possible," nor Article 11, section 10, which provides three broad methods to fund the university system, require that the Legislature increase appropriations to the university system. Such funding decisions are quintessentially legislative and subject to absolute immunity from judicial review.
The court was divided, however, on whether dismissing the Board was appropriate. The majority held that the Board should not have been dismissed. According the majority, the Board was not entitled to the immunity under Arizona's absolute immunity statute, A.R.S. 12-820.01, because declaratory or injunctive relief actions against public entities, such as the one filed by the students against the Board, are not protected by the statute. The majority also determined that the students stated a claim against the Board by alleging that the tuition increase approved by the Board was excessive or unreasonable. The dissenter, Judge Irvine, would have upheld the trial court's decision to dismiss the Board because the student's claim mere allegation that the tuition increase was excessive or unreasonable was, even if true, not enough to establish that the Board had plainly abused its "enormous discretion in setting tuition."
Presiding Judge Portley authored the majority opinion in which Judge Snow concurred. Judge Portley authored a separate decision, in which he concurred in part and dissented in part from the majority opinion.
Posted by azapp @ Wed, Nov 22, 2006
In Re Brittany Y (11/16/2006): Division One Affirms Delinquency Based on Unauthorized Removal of Electronic Monitoring Bracelet.
Brittany Y challenged the delinquency adjudication of the juvenile court on the charge of escape, stemming from her unauthorized removal of the electronic monitoring bracelet she had been ordered to wear as a condition of probation on a previous shoplifting charge. The Court of Appeals held that removal of the bracelet did constitute an "escape" from custody, within the meaning of ARS 13-2502(A). The Court further held that even though the ankle bracelet had been imposed on her as the result of a previous probation violation for the shoplifting delinquency, her wearing of the bracelet rendered her "in custody" for shoplifting, the underlying offense and that the probation violation for which the bracelet-wearing was imposed, did not constitute a separate offense.
Judge Gemmill authored the opinion, in which Judges Thompson and Ehrlich concurred.
Brittany Y challenged the delinquency adjudication of the juvenile court on the charge of escape, stemming from her unauthorized removal of the electronic monitoring bracelet she had been ordered to wear as a condition of probation on a previous shoplifting charge. The Court of Appeals held that removal of the bracelet did constitute an "escape" from custody, within the meaning of ARS 13-2502(A). The Court further held that even though the ankle bracelet had been imposed on her as the result of a previous probation violation for the shoplifting delinquency, her wearing of the bracelet rendered her "in custody" for shoplifting, the underlying offense and that the probation violation for which the bracelet-wearing was imposed, did not constitute a separate offense.
Judge Gemmill authored the opinion, in which Judges Thompson and Ehrlich concurred.
Posted by azapp @ Wed, Nov 22, 2006
Friday, November 17, 2006
Morse v. The Industrial Commission of Arizona (11/7/06): Division One Holds That Projected Earnings From a Job a Worker’s Compensation Claimant Has Not Yet Performed May Not Be Considered In Determining Claimant’s Average Monthly Wage.
Claimant was employed part-time with United Parcel Service (“UPS”). On the date she sustained her industrial injury, she was scheduled to begin working at a second job with Forward Air. Pursuant to A.R.S. § 23-1041, the Industrial Commission of Arizona (“ICA”) issued a notice of average monthly wage based on claimant’s average wages from UPS for the thirty days prior to her injury. Claimant requested a hearing and argued that the ICA should have increased her average monthly wage determination to reflect the additional wages she would have received from her work at Forward Air. The Administrative Law Judge (“ALJ”) upheld the ICA’s determination of average monthly wages and summarily affirmed his decision on administrative review. Claimant then brought a special action petition to the Court of Appeals.
The sole issue before the Court of Appeals was whether an ALJ in setting a claimant’s average monthly wage should consider prospective wages from an employer for whom the Claimant had not yet begun to work. Claimant relied on two prior cases to support her position that her prospective wages should have been considered. First, Claimant relied on Swift Transp. v. Indus. Comm’n, 189 Ariz. 10, 938 P.2d 59 (App. 1996), for the proposition that a claimant’s average monthly wage should reflect her “probable future earning capacity.” In Swift, a truck driver who was injured on the job had earned reduced training pay for the first three weeks prior to his injury and a regular salary for the final week. The ALJ calculated the truck driver’s average monthly wage based on the one week of regular salary he had received. On appeal by the employer, the Court of Appeals affirmed. Second, Claimant argued based on Lowry v. Indus. Comm’n, 195 Ariz. 398, 989 P.2d 152 (1999), that a Claimant seeking inclusion of income from more than one job need not have held both jobs on the date of her injury. In Lowry, the Supreme Court held that the average monthly wage of a volunteer firefighter injured on the job should include wages earned during the thirty days prior to his injury from his position as a building inspector, even though he had been terminated from that position shortly before his injury.
The Court of Appeals rejected Claimant’s arguments and affirmed the Award and Decision of the ICA. The Court held that A.R.S. § 23-1041 establishes the presumptive average monthly wage as the amount of wages actually received by the claimant during the thirty days prior to her industrial injury. The Court recognized that an ALJ has broad discretion to use an expanded wage base when the presumptive would not adequately reflect the Claimant’s earning capacity. However, the Court distinguished the two cases relied upon by the Claimant. In both cases, the focus was on wages actually earned during the thirty-day period before the industrial injury. Neither case supported the proposition that average monthly wages could be based upon projected earnings from a job the Claimant had not yet performed. Such a basis would be too speculative.
Judge Winthrop authored the unanimous opinion joined by Judges Thompson and Portley.
Claimant was employed part-time with United Parcel Service (“UPS”). On the date she sustained her industrial injury, she was scheduled to begin working at a second job with Forward Air. Pursuant to A.R.S. § 23-1041, the Industrial Commission of Arizona (“ICA”) issued a notice of average monthly wage based on claimant’s average wages from UPS for the thirty days prior to her injury. Claimant requested a hearing and argued that the ICA should have increased her average monthly wage determination to reflect the additional wages she would have received from her work at Forward Air. The Administrative Law Judge (“ALJ”) upheld the ICA’s determination of average monthly wages and summarily affirmed his decision on administrative review. Claimant then brought a special action petition to the Court of Appeals.
The sole issue before the Court of Appeals was whether an ALJ in setting a claimant’s average monthly wage should consider prospective wages from an employer for whom the Claimant had not yet begun to work. Claimant relied on two prior cases to support her position that her prospective wages should have been considered. First, Claimant relied on Swift Transp. v. Indus. Comm’n, 189 Ariz. 10, 938 P.2d 59 (App. 1996), for the proposition that a claimant’s average monthly wage should reflect her “probable future earning capacity.” In Swift, a truck driver who was injured on the job had earned reduced training pay for the first three weeks prior to his injury and a regular salary for the final week. The ALJ calculated the truck driver’s average monthly wage based on the one week of regular salary he had received. On appeal by the employer, the Court of Appeals affirmed. Second, Claimant argued based on Lowry v. Indus. Comm’n, 195 Ariz. 398, 989 P.2d 152 (1999), that a Claimant seeking inclusion of income from more than one job need not have held both jobs on the date of her injury. In Lowry, the Supreme Court held that the average monthly wage of a volunteer firefighter injured on the job should include wages earned during the thirty days prior to his injury from his position as a building inspector, even though he had been terminated from that position shortly before his injury.
The Court of Appeals rejected Claimant’s arguments and affirmed the Award and Decision of the ICA. The Court held that A.R.S. § 23-1041 establishes the presumptive average monthly wage as the amount of wages actually received by the claimant during the thirty days prior to her industrial injury. The Court recognized that an ALJ has broad discretion to use an expanded wage base when the presumptive would not adequately reflect the Claimant’s earning capacity. However, the Court distinguished the two cases relied upon by the Claimant. In both cases, the focus was on wages actually earned during the thirty-day period before the industrial injury. Neither case supported the proposition that average monthly wages could be based upon projected earnings from a job the Claimant had not yet performed. Such a basis would be too speculative.
Judge Winthrop authored the unanimous opinion joined by Judges Thompson and Portley.
Posted by azapp @ Fri, Nov 17, 2006
Evans Withycombe, Inc. v. Western Innovations, Inc. (11/14/06): Arizona Court of Appeals Division One Holds That Statute of Repose Bars Contractor’s Contract-Based Claims Against Its Subcontractors, But Not Contractor’s Common Law Indemnity Claims Against Its Subcontractors
Homeowners purchased a home, and Evans Withycombe (“Evans”) was the general contractor on the home. Various subcontractors also worked on the home pursuant to subcontracts with Evans, including Western Innovations, Inc. (“Western”) and Construction Inspection & Testing Co. (“CIT”). The homeowners received a certificate of occupancy from the city of Scottsdale in 1992, and more than eight years later, sued Evans for defective construction. More than two years after that, Evans filed a third-party complaint against Western and CIT, its subcontractors.
Western filed a motion for summary judgment to dismiss Evans’ third-party complaint, basing the motion on A.R.S. § 12-552 , which barred all claims arising out of contract filed more than nine years after substantial completion of a home. The trial court granted the motion, and dismissed the third-party claim in its entirety.
The court of appeals affirmed in part, reversed in part, and remanded for further proceedings. The court held that the plain language of the statute bars actions “based in contract” or “based on implied warranty arising out of the contract,” and thus found that the trial court did not err in dismissing Evans’ contract and warranty claims. A.R.S. § 12-552(A),(C). After distinguishing contractual indemnity from common-law indemnity, the court held that the statute of repose bars only the contractual indemnity claim. For various reasons, the court declined to consider whether the statute of repose bars negligence claims.
Judge Snow wrote the opinion; Judge Ehrlich, Presiding Judge, and Judge Gemmill concurred.
Homeowners purchased a home, and Evans Withycombe (“Evans”) was the general contractor on the home. Various subcontractors also worked on the home pursuant to subcontracts with Evans, including Western Innovations, Inc. (“Western”) and Construction Inspection & Testing Co. (“CIT”). The homeowners received a certificate of occupancy from the city of Scottsdale in 1992, and more than eight years later, sued Evans for defective construction. More than two years after that, Evans filed a third-party complaint against Western and CIT, its subcontractors.
Western filed a motion for summary judgment to dismiss Evans’ third-party complaint, basing the motion on A.R.S. § 12-552 , which barred all claims arising out of contract filed more than nine years after substantial completion of a home. The trial court granted the motion, and dismissed the third-party claim in its entirety.
The court of appeals affirmed in part, reversed in part, and remanded for further proceedings. The court held that the plain language of the statute bars actions “based in contract” or “based on implied warranty arising out of the contract,” and thus found that the trial court did not err in dismissing Evans’ contract and warranty claims. A.R.S. § 12-552(A),(C). After distinguishing contractual indemnity from common-law indemnity, the court held that the statute of repose bars only the contractual indemnity claim. For various reasons, the court declined to consider whether the statute of repose bars negligence claims.
Judge Snow wrote the opinion; Judge Ehrlich, Presiding Judge, and Judge Gemmill concurred.
Posted by azapp @ Fri, Nov 17, 2006
Thursday, November 9, 2006
League of Arizona Cities and Towns v. Brewer (11/08/06): Arizona Supreme Court Declines to Extend its Pre-Election Review Authority to Ballot Initiatives Allegedly Violating the “Revenue Source Rule.”
Proposition 207, the Private Property Rights Protection Act (“Prop. 207”), is a ballot initiative designed to limit the use of eminent domain and expand the definition of regulatory takings. Among other things, it would require the State to pay landowners compensation equal to the decline in market value caused by its enactment of land use laws. The League of Arizona Cities and Towns (“League”) challenged Prop. 207 in Superior Court, charging that it violated the Arizona Constitution’s “Revenue Source Rule” by failing to identify the source of revenue to pay the “immediate and future costs of the proposal” (Ariz. Const. art. 9, § 23) and asking that it be removed from the ballot. The Superior Court dismissed, holding that Revenue Source Rule violations cannot be reviewed before a proposition is enacted into law. The League appealed directly to the Supreme Court pursuant to A.R.S. § 19-122(C). On August 31, 2006, the Court issued an order permitting Prop. 207 to remain on the ballot. The Court later issued its decision explaining its reasoning. The Court first noted that separation of powers principles require it to refrain from interfering with the legislative process. The Court observed that A.R.S. § 19-122(C) authorizes it to enjoin the placement of an initiative on the ballot if it is “not legally sufficient,” but added that this phrase has been construed to refer only to defects in form, lack of the requisite number of valid signatures, and failure to follow prescribed procedures. The Court declined to expand its pre-election review authority to include Revenue Source Rule violations, noting that such violations do not bear directly on the integrity of the election process. The Court also cited “prudential” concerns for eschewing pre-election review, including avoidance of advisory opinions, the necessity of constricted briefing, the potential need to invalidate the entire proposition, rather than only a portion, and a reluctance to chill the people’s fundamental right to legislate.
Justice Berch authored the opinion for the unanimous Court.
Proposition 207, the Private Property Rights Protection Act (“Prop. 207”), is a ballot initiative designed to limit the use of eminent domain and expand the definition of regulatory takings. Among other things, it would require the State to pay landowners compensation equal to the decline in market value caused by its enactment of land use laws. The League of Arizona Cities and Towns (“League”) challenged Prop. 207 in Superior Court, charging that it violated the Arizona Constitution’s “Revenue Source Rule” by failing to identify the source of revenue to pay the “immediate and future costs of the proposal” (Ariz. Const. art. 9, § 23) and asking that it be removed from the ballot. The Superior Court dismissed, holding that Revenue Source Rule violations cannot be reviewed before a proposition is enacted into law. The League appealed directly to the Supreme Court pursuant to A.R.S. § 19-122(C). On August 31, 2006, the Court issued an order permitting Prop. 207 to remain on the ballot. The Court later issued its decision explaining its reasoning. The Court first noted that separation of powers principles require it to refrain from interfering with the legislative process. The Court observed that A.R.S. § 19-122(C) authorizes it to enjoin the placement of an initiative on the ballot if it is “not legally sufficient,” but added that this phrase has been construed to refer only to defects in form, lack of the requisite number of valid signatures, and failure to follow prescribed procedures. The Court declined to expand its pre-election review authority to include Revenue Source Rule violations, noting that such violations do not bear directly on the integrity of the election process. The Court also cited “prudential” concerns for eschewing pre-election review, including avoidance of advisory opinions, the necessity of constricted briefing, the potential need to invalidate the entire proposition, rather than only a portion, and a reluctance to chill the people’s fundamental right to legislate.
Justice Berch authored the opinion for the unanimous Court.
Posted by azapp @ Thu, Nov 9, 2006
Wednesday, November 8, 2006
Yarbrough v. Super. Ct. (Roberts Enters., Inc.) (11/6/06): Division Two Grants Special Action Relief to Clarify Statutory Options for Change of Venue for Claims Brought Against a County
Petitioner brought a wrongful death lawsuit against Santa Cruz County and other defendants. The case was initially filed in Santa Cruz County, pursuant to A.R.S. § 12-401 (15) (requiring actions against a county to be brought in the county sued). Petitioner then moved for a change of venue pursuant to A.R.S. § 12-408 (allowing change of venue to “some other county” by party opponent of county sued) and sought to have the case transferred to Pima County. The judge, however, instead ordered a change of venue to Pinal County. Petitioner filed a special action with the Court of Appeals.
The Court of Appeals accepted jurisdiction and remanded for a determination of what alternative venue would be “the most convenient county . . . to which the objections of the parties do not apply or are least applicable” pursuant to A.R.S. § 12-411(B). The court rejected both petitioner’s argument that the venue should be changed “to the most convenient adjoining county” pursuant to A.R.S. § 12-407(A), and respondent’s argument that, whenever possible, the change of venue should be to a new venue that would have been proper initially under § 12-401. Instead, the court held, § 12-411(B) provides the proper guidance for the trial court’s discretion in deciding which alternative venue is proper.
Chief Judge Pelander wrote the opinion; Presiding Judge Joseph W. Howard and Judge Espinosa concurred.
Petitioner brought a wrongful death lawsuit against Santa Cruz County and other defendants. The case was initially filed in Santa Cruz County, pursuant to A.R.S. § 12-401 (15) (requiring actions against a county to be brought in the county sued). Petitioner then moved for a change of venue pursuant to A.R.S. § 12-408 (allowing change of venue to “some other county” by party opponent of county sued) and sought to have the case transferred to Pima County. The judge, however, instead ordered a change of venue to Pinal County. Petitioner filed a special action with the Court of Appeals.
The Court of Appeals accepted jurisdiction and remanded for a determination of what alternative venue would be “the most convenient county . . . to which the objections of the parties do not apply or are least applicable” pursuant to A.R.S. § 12-411(B). The court rejected both petitioner’s argument that the venue should be changed “to the most convenient adjoining county” pursuant to A.R.S. § 12-407(A), and respondent’s argument that, whenever possible, the change of venue should be to a new venue that would have been proper initially under § 12-401. Instead, the court held, § 12-411(B) provides the proper guidance for the trial court’s discretion in deciding which alternative venue is proper.
Chief Judge Pelander wrote the opinion; Presiding Judge Joseph W. Howard and Judge Espinosa concurred.
Posted by azapp @ Wed, Nov 8, 2006
Monday, November 6, 2006
Ulan v. Pima County Bd. of Supervisors (10/31/06): Division Two Affirms 16% Cap on Tax Lien Interest.
Appellants, the Ulans, were the purchasers of tax lien certificates under ARS 42-18118. Under ARS 42-18114 and -18153, a tax lien purchaser may charge a property owner redeeming its tax lien interest on the amount paid by the purchaser. Appellants purchased various liens in February 2003 and asked the Pima County Treasurer to calculate the interest due them starting February 1. Instead, the Treasurer calculated the interest starting March 1 and the Ulans sued. The superior court denied their motion for partial summary judgment and dismissed their complaint. They appealed.
Ruling purely as a matter of statutory construction, Division Two, in an opinion by Judge Espinosa, affirmed. Division Two agreed that ARS 42-18114 is unclear as to when interest begins to accrue on the purchase of a tax lien certificate. The Court noted, however, that 42-18053(A) establishes a maximum rate of simple interest of 16% on all tax delinquencies. The Court also noted that tax liens must be sold to the lowest bidder. Thus, the Court held that because the Ulans' method of calculation would exceed the 16% cap, their interpretation is barred by the statutes and that the Superior Court did not err in dismissing their complaint.
Judge Eckerstrom and Judge Brammer concurred in the decision of Judge Espinosa.
Appellants, the Ulans, were the purchasers of tax lien certificates under ARS 42-18118. Under ARS 42-18114 and -18153, a tax lien purchaser may charge a property owner redeeming its tax lien interest on the amount paid by the purchaser. Appellants purchased various liens in February 2003 and asked the Pima County Treasurer to calculate the interest due them starting February 1. Instead, the Treasurer calculated the interest starting March 1 and the Ulans sued. The superior court denied their motion for partial summary judgment and dismissed their complaint. They appealed.
Ruling purely as a matter of statutory construction, Division Two, in an opinion by Judge Espinosa, affirmed. Division Two agreed that ARS 42-18114 is unclear as to when interest begins to accrue on the purchase of a tax lien certificate. The Court noted, however, that 42-18053(A) establishes a maximum rate of simple interest of 16% on all tax delinquencies. The Court also noted that tax liens must be sold to the lowest bidder. Thus, the Court held that because the Ulans' method of calculation would exceed the 16% cap, their interpretation is barred by the statutes and that the Superior Court did not err in dismissing their complaint.
Judge Eckerstrom and Judge Brammer concurred in the decision of Judge Espinosa.
Posted by azapp @ Mon, Nov 6, 2006
Ledvina v. Cerasani (10/31/06): Division Two Affirms That Report of an Alleged Crime to the Police Is Absolutely Privileged as a Communication Related to a Judicial Proceeding
Ledvina was charged with criminal damage based on a report Cerasani made to the police that Ledvina had slashed Cerasani’s tires. The Ledvinas subsequently sued the Cerasanis for defamation. The court entered summary judgment in favor of the Cerasanis, finding that the police complaint was absolutely privileged as a statement related to a judicial proceeding. This appeal followed.
On appeal, the Ledvinas contended that only a conditional privilege should apply to statements made to the police. Judge Espinosa, writing for a unanimous panel, rejected this position and affirmed the trial court’s ruling. The court relied heavily on Sections 587, 588, and 598 of the Restatement (Second) of Torts, holding that police reports are absolutely privileged – rather than conditionally privileged – because they are communications preliminary to a proposed judicial proceeding. The court further noted that requiring crime victims to rely on the defense of qualified immunity would discourage reporting of criminal activity. Finally, the court noted that Arizona’s Victim’s Bill of Rights entitled putative crime victims to absolute immunity when they complain to the police.
Judge Espinosa authored the opinion; Judges Eckerstrom and Brammer concurred.
Ledvina was charged with criminal damage based on a report Cerasani made to the police that Ledvina had slashed Cerasani’s tires. The Ledvinas subsequently sued the Cerasanis for defamation. The court entered summary judgment in favor of the Cerasanis, finding that the police complaint was absolutely privileged as a statement related to a judicial proceeding. This appeal followed.
On appeal, the Ledvinas contended that only a conditional privilege should apply to statements made to the police. Judge Espinosa, writing for a unanimous panel, rejected this position and affirmed the trial court’s ruling. The court relied heavily on Sections 587, 588, and 598 of the Restatement (Second) of Torts, holding that police reports are absolutely privileged – rather than conditionally privileged – because they are communications preliminary to a proposed judicial proceeding. The court further noted that requiring crime victims to rely on the defense of qualified immunity would discourage reporting of criminal activity. Finally, the court noted that Arizona’s Victim’s Bill of Rights entitled putative crime victims to absolute immunity when they complain to the police.
Judge Espinosa authored the opinion; Judges Eckerstrom and Brammer concurred.
Posted by azapp @ Mon, Nov 6, 2006
