AZAPP Blog

Line-Item Veto Article

An article on azcentral.com discusses the Supreme Court's announcement to hear the Legislature's line-item veto suit.

Posted by azapp @ Wed, May 24, 2006

High Court Decides To take Up Line Item Veto Case

The state Supreme Court has decided to accept jurisdiction in the Legislature's special action request filed to challenge Napolitano's line item veto of the provision in H2661 that removes merit system protection from state employees hired or promoted to grade 24 after December 31, 2006. The court also ruled that it will hear oral arguments in the case.

Posted by azapp @ Tue, May 23, 2006

State v. Berger: Supreme Court affirms 200 year sentence for possession of twenty images of child pornography.

In a 4-1 decision, the Supreme Court affirmed the sentence of a man convicted of twenty counts of possession of child pornography. The Court found that the sentence did not violate the Eighth Amendment's prohibition on cruel and unusual punishment because each separate conviction of ten years was not "grossly disproportionate" to the crime under Ewing v. California, 538 U.S. 11 (2003). Under Ewing, the Court rejected Berger's argument that the harshness of the penalty outweighed the gravity of the offense, paying "substantial deference" to the legislature and concluding that a ten year sentence without possibility of probation, early release or pardon for possession of one image of child pornography, served consecutively with convictions on other counts, "advance[d] the goals of Arizona's criminal justice system in a substantial way." Vice Chief Justice Berch dissented and would have included a comparison of Arizona's penological scheme against other states' penalties for the same offense and concluded that Berger's sentence of ten years for possession of each image and his sentence of 200 years for possession of twenty images was "grossly disproportionate." Justice Hurwitz concurred specially.

Posted by azapp @ Mon, May 22, 2006

Freelance v ADES: Division One Affirms Department of Economic Security Appeal Board’s Dismissal of Employer’s Motion for Reconsideration As Untimely Under A.R.S. § 23-724(A) (5/9/06)

Following an unemployment tax audit, Freelance Interpreting Services, Inc. (“Freelance”) requested reconsideration of two determinations by the Arizona Department of Economic Security (“ADES”) issued January 26, 1999. The January 26 letter provided that the determinations would become final within fifteen days of the date of the determination. Freelance’s request for reconsideration bore a postmark of February 12, 1999, seventeen days after the January 26 determinations were issued. ADES ruled that the January 26 determinations were final and binding because Freelance had failed to file its motion within fifteen days as required by A.R.S. § 23-724(A). Freelance appealed, and after a hearing, the Appeals Board affirmed. Freelance then appealed to the Arizona Tax Court, which also affirmed.

Division One affirmed the Tax Court’s decision, finding that the record supported the ruling, that A.R.S. § 23-724(A) is unambiguous, and that no “good cause” exception applies to the statute or the associated regulations. The court rejected Freelance’s argument that Ariz. R. Civ. Pro. 6(e), providing for an additional five days for notice or papers served by mail, applies to A.R.S. § 23-724(A). The statute does not mention Rule 6(e), and ADES’ applicable administrative rule incorporates Ariz. R. Civ. Pro. 6(a), not 6(e). A.A.C. R6-1404(A)(3). Ariz. R. Civ. Pro. 6(a) did not operate to extend Freelance’s deadline. Moreover, the civil rules state that they govern procedure in superior courts of Arizona and that they shall not extend the jurisdiction of superior courts. See Ariz. R. Civ. Pro. 1; Ariz. R. Civ. Pro. 82). Thus the court declined to apply the Rules of Civil Procedure “automatically” to agency procedure.

Judge Barker authored the opinion; Judge Portley and Judge Thompson concurred.

Posted by azapp @ Mon, May 22, 2006

Article on Roubos v. City of Tucson

An article on az.com discusses a recent Division Two decision, Roubos v. City of Tucson, in which it was decided that businesses cited for violating a local ordinance but who win in a civil court do not have to pay their legal costs; the governing body that brought the lawsuit must pay.

Posted by azapp @ Fri, May 19, 2006

State v. Johnson: Arizona Supreme Court Upholds Murder Conviction and Death Penalty for Gang-Related Murder to Eliminate Witness of Massage Parlor Robbery

Ruben Myran Johnson was convicted in 2001 of first-degree murder, assisting a criminal street gang, first-degree burglary and armed robbery. The convictions stemmed from a November, 2000, robbery at Affordable Massage in Phoenix and the subsequent murder of Stephanie Smith, a witness to the robbery. A sentencing jury recommended the death penalty. On direct appeal, the Arizona Supreme Court upheld the convictions and sentences. The court held that the commission of a murder to eliminate a witness to another crime is a sufficient basis to find the murder was especially heinous or depraved. The court also held that the trial court did not err by failing to sever the trial of charges against Johnson; that the aggravating factors applied were given adequate specificity through jury instructions; that evidence of Johnson’s gang affiliation was properly admitted as probative of motive and not unduly prejudicial; that the defendant was not entitled to question prospective jurors about their views on specific mitigating circumstances; that the admission of a video clip excerpt of Johnson’s police interrogation was properly admissible to support testimony of the State’s mental health expert; and that the trial court did not abuse its discretion by refusing to instruct jurors regarding specific items of mitigation evidence.

Chief Justice McGregor wrote the opinion for the unanimous court.

Posted by azapp @ Wed, May 17, 2006

Article on Salib v Mesa


An article on azcentral.com discusses Division One's recent decision in Salib v. Mesa, in which the court held that the city's interest in improving aesthetics outweighs Salib's right to free speech.

Posted by azapp @ Tue, May 16, 2006

Evans Withycombe, Inc. v. Western Innovations, Inc.: Division One Holds That A.R.S. § 12-552, a Statute of Repose, Barred Contract-Based Claims Asserted in a Third-party Complaint Against Subcontractors, but Not a Common-law Indemnity Claim

Evans Withycombe was the general contractor for a home purchased by Ira and Wilma Weiss. The Weisses sued Evans Withycombe for defective construction more than eight years after the certificate of occupancy had issued. More than two years after that, just before settling the Weisses’ claim, Evans Withycombe filed a third-party complaint against various subcontractors that had worked on the Weisses’ home. The Superior Court granted a motion for summary judgment to dismiss Evan Withycombe’s third-party complaint on the basis of A.R.S. § 12-552. That statute provides:

A. Notwithstanding any other statute, no action or arbitration based in contract may be instituted or maintained against a person who develops or develops and sells real property, or performs or furnishes the design, specifications, surveying, planning, supervision, testing, construction or observation of construction of an improvement to real property more than eight years after substantial completion of the improvement to real property.

The Court of Appeals affirmed the summary judgment with respect to the contract claims, noting that the statute applies to actions based in contract. In so doing, the Court rejected Evans Withycombe’s argument that the Court should interpret the statute only to bar claims brought by property owners. The Court of Appeals reversed the summary judgment with respect to the common-law indemnity claim. The Court explained that although the statute of repose bars contract-based indemnity claims, it does not bar common-law indemnity claims. The Court declined to consider whether the statute of repose bars negligence claims explaining that the negligence argument had not been properly raised below.

PRACTICE NOTE: Evans Withycombe first raised the negligence argument in a motion for reconsideration. The Court noted that although it may in its discretion consider matters first raised in a motion for reconsideration, it tends to do so in cases in which the facts or evidence presented were not available at the time the summary judgment was entered. That was not the case here.

Justice Snow authored the opinion. Judges Ehrlich and Gemmill concurred.

Posted by azapp @ Tue, May 16, 2006

Sun Valley Financial Services of Phoenix, LLC v. Guzman: Division One Refuses to Apply Equitable Subrogation to Allow Foreclosure on a Tax Lien

Sun Valley purchased a 2002 tax lien on a piece of property that was also subject to a 1999 tax lien. Sun Valley paid the amounts necessary to redeem the 1999 tax lien and subsequently filed a complaint to foreclose the property owner’s right to redeem the 1999 tax lien. Sun Valley claimed that because it had purchased the 2002 tax lien, it had become “equitably subrogated” to the rights of the original purchaser of the 1999 tax lien and was entitled to foreclose on the property owner’s right to redeem. The trial court agreed and ordered the county treasurer to execute and delivery a deed conveying the property to Sun Valley. This appeal followed.

Judge Norris’ opinion addressed whether, by redeeming a prior tax lien, a subsequent tax lien purchaser will become “equitably subrogated” to the rights of the original holder of the prior tax lien, including the right to foreclose the property owner’s rights to redeem. Applying Arizona’s real property tax lien statutes, A.R.S. §§ 42-17153(A) and 42-18001, et seq., and the Arizona Supreme Court’s decision in Mosher v. Conway, 45 Ariz. 463, 46 P.2d 1110 (1935), the court held that equitable subrogation did not apply because: (1) the two liens were in parity and Sun Valley redeemed the 1999 tax lien obtain an advantage (i.e., speed up the time for foreclosure), not to protect its rights in the 2002 lien; (2) application of equitable subrogation would render superfluous the statutory language allowing for assignment of a tax lien; and (3) there is no unjust enrichment because Sun Valley voluntarily chose to pay the 1999 tax lien to obtain an advantage rather than to protect its interests. The court held that Sun Valley’s redemption of the 1999 tax lien gave it nothing to foreclose on with respect to the 1999 lien and vacated the superior court’s judgment foreclosing on the 1999 tax lien because it had already been redeemed.

Jude Patricia Norris authored the opinion; Judges Sult and Orozco joined.

Posted by azapp @ Mon, May 15, 2006

Smith v. Arizona Citizens Clean Elections Commission: AZ Supreme Court Affirms Decision Removing State Legislator From Office for Campaign Spending Violations

David Burnell Smith was elected to the state House of Representatives in 2004 after running as a publicly funded candidate. An investigation revealed that he had overspent public campaign spending limits by approximately seventeen percent. The Arizona Clean Elections Commission therefore determined that Smith should forfeit his office. Following an administrative review and decisions of the superior court and court of appeals, the Arizona Supreme Court ruled on January 26, 2006 to affirm the superior court decision removing Smith from office. This opinion explained that decision.

First, the court rejected Smith’s claim to constitutional immunity under Article 4, Part 2, Section 6 of the Arizona Constitution, which provides that legislators are not “subject to any civil process” during legislative sessions. Because Smith had invoked the jurisdiction of the courts, he could not claim immunity from the action that he himself had taken to prevent his immediate removal from office under the Commission’s order.

The court also rejected Smith’s claim that, pursuant to Article 8, Part 2, Section 1 of the Arizona Constitution, he could be removed from office only by “impeachment or recall.” Citing State ex rel. DeConcini v. Sullivan, 66 Ariz. 348, 355 (1948), the court held that Article 8, Part 2 does not provide the exclusive means of removal from public office. The public, acting in its legislative capacity, had authorized removal from public office as a sanction for serious violations of campaign finance laws, see A.R.S. § 16-942(C), and Smith’s removal was not precluded by the Arizona Constitution.

Smith’s failure to timely appeal the Commission decision under A.R.S. § 16-957(B) was not excused by the fact that he was afforded an administrative review process beyond the filing deadline, or that he timely filed a motion for administrative rehearing. The failure to timely file was not excused as acceptably “premature” because the case did not fall within the narrow exception to the final judgment rule that allows an early notice of appeal to be filed after a trial court has made its final decision but not yet entered a final order if the court’s remaining task is merely ministerial. Because failure to timely request judicial review meant that no questions of fact remained, Smith was not entitled to a jury trial under Article 2, Section 23 of the Arizona Constitution on the Attorney General’s request for a writ of quo warranto to remove Smith from office. The constitutional guarantee only preserved the right to jury trial that existed at common law, Derendal v. Griffith, 209 Ariz. 416, 419 ¶ 8 (2005), and the right to jury trial has never extended to civil cases that turn on uncontested facts.

Finally, Smith could not bring the action as a stand-alone complaint independent of his challenges to the Commission’s rulings against him. Smith was required to raise all of his challenges to the Commission’s action and related constitutional claims in a timely complaint for judicial review under the Judicial Review of Administrative Decisions Act, A.R.S. §§ 12-901 to -914.

Posted by azapp @ Mon, May 8, 2006

Salib v. City of Mesa: Division One Holds That City Of Mesa’s Commercial Window Sign Code Does Not Violate Business Owner’s Free Speech Rights Under The United States And Arizona Constitutions.

The City of Mesa enacted a sign code limiting sign coverage to thirty percent of store windows. Edward Salib owned a donut store with sign coverage exceeding the limit. Mesa gave Salib several warnings and Salib filed a complaint claiming that the code “violated his free speech rights under the Arizona and United States Constitutions.” After the trial court granted summary judgment in Mesa’s favor, Salib appealed.

The Arizona Court of Appeals affirmed. The court first analyzed the code under the First Amendment. Because the signs expressed “a purely commercial message,” the court scrutinized the code under the Central Hudson test. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980). Salib conceded that the code’s purpose—regulation of aesthetics—furthered a substantial government interest. The court concluded that the code also directly advanced that interest and the regulation had a “reasonable fit” between the means to its end.

The court also rejected Salib’s challenge under the Arizona Constitution. The court concluded that the regulation was a valid time, place, and manner restriction. See Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm’n, 160 Ariz. 350, 357–58, 773 P.2d 455, 462–63 (1989). The parties agreed that the regulation was content neutral, and the court had decided that “improving aesthetics is a substantial government interest and Mesa’s Sign Code directly serves that interest.” Furthermore, Salib failed to argue that the regulation did not leave open ample alternative means of communication. Finally, the court briefly considered whether the regulation was “drawn with narrow specificity to affect as little speech as possible.” Division Two had held that the Arizona Constitution protected more speech from time, place, and manner restrictions than the First Amendment. See Empress Adult Video & Bookstore v. City of Tucson, 204 Ariz. 50, 57, 59 P.3d 814, 821 (Ct. App. 2002). Nevertheless, the court stated that, “[e]ven assuming this con[c]lusion is correct, an issue we need not decide here, Salib has not established that the increased strictness applies to the regulation at issue here.” According to the court, “unlike the regulations struck down in Mountain States and Empress, limiting how much of a window may be covered by signs does not erect a direct barrier to communication.” Lastly, the court reasoned even further that “in the context of regulating window coverage there will always be a direct and proportionate relationship between the regulation and the desired goal: . . . Less coverage means less clutter; more coverage means more.”

Judge Irvine authored the unanimous opinion.

Posted by azapp @ Mon, May 8, 2006

State Farm v. Connolly: Unanimous Division One Panel Holds that Negligent Infliction of Emotional Distress Claim is Separate Injury to a Second Victim Not Subject to "Each Person" Limitation

Trista Connolly witnessed the death of her sister Dana, who was struck by a vehicle driven by a State Farm insured. After State Farm paid Dana's parents for Dana's wrongful death, State Farm filed a declaratory action to resolve whether Trista was entitled to damages for her negligent infliction of emotional distress claim. State Farm did not dispute that Trista properly stated a negligent infliction of emotional distress claim and conceded that her emotional distress could constitute bodily injury covered under the insurance policy.

State Farm claimed that Trista's damages were subsumed in the wrongful death claim and subject to the "Each Person" limitation found in the policy, which limited recovery for "all damages due to bodily injury to one person" including "all injury and damages to other resulting from this injury" to $50,000. The policy contained a "Each Accident" limitation, which capped recovery for the accident at $100,000. State Farm argued that Trista's injury, like claims for consortium and other injuries derivative of the principal victim's injury, negligent infliction of emotional distress was "resulted from" the injury to Dana and subject to the $50,000 cap. The trial court and the appellate court disagreed.

The Court of Appeals discussed similar cases across the country that arrived at different conclusions. The appellate court agreed with decisions from Louisiana, Montana and Alaska that considered identical or nearly identical policy language in similar contexts and concluded that negligent inflict of emotional distress claims of witnesses were separate from bodily injury claims of the accident victims. See Crabtree v. State Farm Ins. Co., 632 So.2d 736 (La. 1994); Treichel v. State Farm Mut. Auto. Ins. Co., 930 P.2d 661 (Mont. 1997); See State Farm Mut. Auto. Ins. Co. v. Lawrence, 26 P.3d 1074 (Alaska 2001). The Court of Appeals rejected the holding of the Connecticut Supreme Court in Galgano v. Metropolitan Property and Casualty Ins. Co., 838 A.2d 993 (Conn. 2004) (holding that emotional distress claim of witness "resulted from" injury to victim, as phrase was used in policy). The appellate court explained because that negligent infliction of emotional distress claims require proof of physical injury that results from the emotional distress, these claims are separate from the injury to the accident victim and "result[] from the accident, not solely from the injury to the other person."

The Court awarded attorneys' fees to Trista Connolly.

Presiding Judge Irvine authored the decision, in which Judge Winthrop and Sult concurred.

Posted by azapp @ Mon, May 8, 2006

Henry v. Flagstaff Medical Center: Division One Panel Holds that Reliance by a Third Party for Apparent Agency Purposes Must be Established by Principal's Conduct, Not Third Party's Beliefs

Loretta Henry sued Flagstaff Medical Center for the negligence of her surgeon in removing her gall bladder. Mrs. Henry claimed that FMC was vicariously liable for the doctor's conduct under an apparent agency relationship between the hospital and the doctor. The trial court determined that this was a question of fact for the jury, and the jury found that the doctor was the apparent agent of the hospital. However, the trial court granted FMC a new trial based on erroneous jury instructions and both parties appealed.

The Court of Appeals held that FMC was entitled to judgment as a matter of law because Mrs. Henry did not satisfy the legal elements of apparent agency. Under Arizona law, apparent agency is established by demonstrating (1) that the principal, through its conduct, represents another to be its agent; (2) the third party relies on these representations; and (3) the third party's reliance is reasonable. In determining whether Mrs. Henry satisfied the legal elements of apparent agency, the Court of Appeals rejected California's less demanding test that requires only that a patient establish that she sought treatment at a hospital to establish apparent agency. Two members of the Court also concluded that apparent agency could not be satisfied by the principal's intentional, inadvertent or negligent acts, relying on Arizona Supreme Court cases that did not include "negligent" language. See, e.g., Miller v. Mason-McDuffie Co. of Southern Calif., 153 Ariz. 585, 739 P.2d 806 (1987). In so concluding, the majority rejected Arizona appellate court decisions suggesting that a principal's negligent offering of the agent may be considered in determining the existence of an apparent agency relationship. See, e.g,, Reed v. Gershweir, 160 Ariz. 203, 772 P.2d 26 (App. 1989).

Though the Court of Appeals found that FMC's conduct presented the doctor as its agent based on the forms Mrs. Henry signed that specifically disclaimed employment relationships with physicians other than her surgeon, the Court of Appeals determined that Mrs. Henry did not rely on FMC's conduct. Instead, Mrs. Henry thought the doctor was the hospital's agent simply because he was a surgeon at the hospital. The Court reversed and remanded to the trial court with instructions to grant FMC judgment as a matter of law.

Judge Ehrlich authored the Court's decision, in which Presiding Judge Portley concurred and Judge Barker concurred specially. Judge Barker found the majority's decision to discuss prong one of the apparent agency test unnecessary in light of the Court's unanimous decision that Mrs. Henry failed to establish reliance and therefore did not satisfy prong two and pointed out that its discussion of prong one was dicta. Judge Barker noted that resolution of prong one was not straight-forward in light of the apparent conflict between the Arizona Supreme Court and Arizona appellate courts.

Posted by azapp @ Mon, May 8, 2006

Martinez v. Green: A Division One Panels Hold that Statutory Claims for Receipt of "Spam Faxes" are not Assignable

Bert Martinez filed a $3.5 million dollar lawsuit against Linda and Mike Green, based on alleged assignments of claims under the Telephone Consumer Protection Act (TCPA) from recipients of the Greens' unsolicited facsimiles. The TCPA provides for statutory damages of $500 per spam fax and treble damages if the sender violated the act willfully or knowingly. The Greens moved to dismiss Martinez's claim, arguing that because TCPA claims are not assignable, Martinez had no claim. The trial court agreed and dismissed Martinez's TCPA claim.

The Court of Appeals affirmed. The court first considered the nature of TCPA claims. The Court concluded, based on the TCPA's legislative history and other opinions construing the Act, that the TCPA prohibits spam faxes because they are a nuisance that invade a recipient's privacy. Finding no right of assignment within the statute's text, the court then considered whether privacy claims are assignable under Arizona common law. Arizona forbids the assignment of personal injury torts, such as invasion of privacy. Arizona courts also look to the survivability of a claim to determine whether it can be assigned. Because Arizona's survival statute specifically precludes the survivability of invasion of privacy claims, A.R.S. 14-3110, TCPA violations cannot be assigned.

Judge Portley authored the unanimous decision in which Presiding Judge Irvine and Judge Gemmill concurred.

Posted by azapp @ Mon, May 8, 2006

In re: The General Adjudication of All Rights to Use Water in the Gila River System and Source: Arizona Supreme Court Declines to Revisit Comity Holding in Gila River System Decision

After the Arizona Supreme Court issued its decision in In re the General Adjudication of All Rights to Use Water in the Gila River System & Source, the San Carlos Apache Tribe filed an untimely motion for reconsideration. (ARCAP 22(b) allows a motion for reconsideration to be filed within fifteen days after the filing of a decision, but unlike a brief, such a motion is deemed timely filed only if it is received by the clerk within that time frame. See ARCAP 4(a). The Tribe had mailed the motion on the deadline, rendering it untimely.) The Court suspended the rules under ARCAP 3, and agreed to consider the motion nevertheless. The motion addressed the Court’s refusal, based on the doctrine of comity, to consider the Tribe’s argument that the Globe Equity Decree should have no preclusive effect because of the United States’ allegedly inadequate representation of the Tribe. The Tribe argued that the doctrine of comity was inapplicable because the Globe Equity court lacked jurisdiction to consider a challenge to the decree, in light of the McCarran Amendment, 43 U.S.C. 666, and the Ninth Circuit decision in Northern Cheyenne Tribe v. Adsit, 721 F.2d 1187 (9th Cir. 1983). The Court rejected the Tribe’s argument that the McCarran Amendment deprived the Globe Equity court of jurisdiction to enforce and interpret the 1935 consent decree, noting that the Supreme Court had construed the law as conferring state court jurisdiction, rather than withdrawing federal court jurisdiction. The Court also rejected the Tribe’s argument that the Northern Cheyenne decision required a different result, noting that the Globe Equity litigation had been underway for almost 60 years before the Ninth Circuit determined to stay the San Carlos federal litigation in 1983. The Court denied the motion for reconsideration.

Justice Bales did not participate; Court of Appeals Chief Judge Pelander sat pursuant to Article 6, Section 3 of the Arizona Constitution.

Posted by azapp @ Fri, May 5, 2006

Waldren v. Waldren: Division One Holds that Rule 60(c)(5) Relief May be Available With Respect to Spousal Maintenance Obligation Designated as Non-Modifiable

Mother filed for divorce from Father in 1999, and a divorce trial was held in 2002. In the course of the trial, the parties announced a settlement agreement, and a decree was entered that included a non-modifiable spousal maintenance obligation. The decree also found Father to be in contempt for his failure to pay pendente lite child support and spousal maintenance, and provided that Father would be immediately incarcerated upon the filing by Mother of an affidavit advising the court that Father had failed to purge the contempt. Father subsequently was determined to be disabled. Father filed a motion under Rule 60(c), asking the court to set aside the portions of the decree allowing him to be found in contempt based solely on Mother’s affidavit, and arguing that under Rule 60(c)(5), because he was permanently disabled, the spousal maintenance obligations should be set aside. Father also sought a further hearing on the issue of allocating the couple’s children’s Social Security benefits to each parent in proportion to their parenting time. The court set aside the provision regarding contempt, but did not set aside the spousal maintenance or grant the further hearing. Father appealed. Division One first noted that in refusing to modify the maintenance obligation, the trial court had relied on A.R.S. 25-319(C), which provides that a divorce decree may be made non-modifiable. The decree in question stated that the spousal maintenance terms “shall not be subject to modification,” and the trial court concluded that Rule 60(c)(5) relief was foreclosed by this language. The Court of Appeals disagreed, noting that the Rule applies to authorize relief from judgments having “prospective application,” such as a spousal maintenance obligation, and is designed to allow relief to be granted in extraordinary circumstances. The Court determined that the case should be remanded to give the trial court the opportunity to determine whether such circumstances were present and justified relief. The Court found no error in the trial court’s refusal to grant a further hearing regarding the children’s Social Security benefits.

The opinion was authored by Judge Gemmill and joined by Judges Norris and Lankford.

Posted by azapp @ Fri, May 5, 2006

Roubos v. Superior Court: Division Two Holds That the Civil Enforcement of a Municipal Ordinance Is a “Civil Action” Under A.R.S. § 12-348 Entitling a Party That Prevails in an Action Against a Municipality to its Reasonable Attorneys Fees

In this special action appeal, the petitioners successfully defended actions filed against them by the City of Tucson for various alleged ordinance violations. After prevailing in the actions, the trial court denied the petitioners’ request for attorneys fees under A.R.S. § 12-348. Noting that petitioners had no other way to appeal that ruling, the Court of Appeals accepted special action jurisdiction over the attorneys fees ruling and reversed the Superior Court. The Court of Appeals held that the civil enforcement of a municipal ordinance is a “civil action” under § 12-348(a)(1), not a criminal proceeding under § 12-348(H)(8). The Court discussed in detail the legislative structure pursuant to which the Legislature has enabled municipalities to enforce their ordinances through criminal or civil proceedings. In this case, the City of Tucson unambiguously exercised its option to enforce a violation of the ordinance at issue here through civil proceedings. Accordingly, the Court concluded that the action brought by the City against the petitioners was a “civil action” within the meaning of § 12-348. The Court rejected the City’s various arguments to avoid the applicability of § 12-348, noting that the Legislature saw fit to adopt various specific exceptions to § 12-348, but none applies here.

Justice Eckerstrom authored the opinion. Judges Brammer and Howard concurred.

Posted by azapp @ Tue, May 2, 2006

State v. Newell: Supreme Court Holds That Superior Court Did Not Commit Reversible Error Despite Capital Defendant’s Claims Of Miranda Violations, Involuntary Confession, Batson Challenge, Improper Vouching, Inadmissible Testimony During Penalty Phase, And Improper Exclusion Of Defendant’s Mental Health Expert.

According to the evidence at trial, Defendant Steven Ray Newell kidnapped an eight-year-old girl on her way to school. He then raped and killed her and left her body in an irrigation ditch.
The jury convicted Newell of first-degree murder, sexual conduct with a minor, and kidnapping.

The jury found three aggravating factors: (1) Newell’s previous conviction for a serious offense, attempted kidnapping; (2) he committed the murder “in an especially heinous, cruel or depraved manner;” and (3) the victim was under the age of fifteen. See A.R.S. § 13-703(F). Newell presented evidence of mitigation involving his “childhood, family life, and opportunities to get help for his substance abuse.” The jury determined that Newell should be sentenced to death for the murder. The death sentence prompted an automatic appeal to the Supreme Court of Arizona.

The Supreme Court affirmed Newell’s convictions and sentences, despite Newell’s numerous claims of error. First, Newell argued that the Superior Court abused its discretion by failing to suppress the statements he made during his interrogation because (1) the detectives violated Miranda v. Arizona, 384 U.S. 436 (1966), by failing to honor Newell’s repeated requests for counsel and (2) the circumstances of Newell’s confession rendered it involuntary. Despite the fact that Newell repeatedly asked for counsel, the Court held that Newell’s requests either were ambiguous or not heard by the officers. See Davis v. United States, 512 U.S. 452 (1994) (holding that requests for counsel must be clear and unambiguous). Furthermore, under the totality of the circumstances, the following conditions did not render Newell’s confession involuntary: fourteen-hour interrogation with small breaks, ambiguous requests for counsel, promises that Newell would feel better after confessing and the detectives would keep him safe in jail, appeals to Newell’s religion, and threats to tell someone whom Newell cared for that Newell was not being honest.

Second, Newell claimed that the prosecution violated Batson v. Kentucky, 476 U.S. 79 (1986), by striking a juror because she was African-American. The Court rejected Newell’s challenge because the prosecution proffered a racially neutral explanation—the juror gave contradictory responses to questions regarding whether she could vote for the death penalty—and Newell countered with no evidence of purposeful racial discrimination.

Third, Newell claimed that the prosecution committed misconduct by “vouch[ing] for the State’s evidence and impugn[ing] the integrity of defense counsel.” During closing arguments, the prosecutor suggested that “‘[n]ot every witness was called,’” and “‘[n]o matter what defense counsel tells you, we all know that DNA is . . . the most powerful investigative tool in law enforcement at this time.’” With respect to the first statement, the Court held that it was not improper because it was not meant to bolster the State’s case; it merely responded to defense counsel’s suggestion that certain witnesses were not called to testify. With respect to the second statement, however, the Court held that it constituted improper vouching. Without testimony in the record, it improperly stated the superiority of the State’s evidence (DNA). Furthermore, the statement improperly suggested that defense counsel was attempting to fool the jury by arguing against the DNA evidence. The Court nevertheless held that the statement did not produce sufficient prejudice to warrant a mistrial. The jury was instructed that closing arguments were not evidence, the trial judge sustained a partial objection to the statement, and there was overwhelming evidence of Newell’s guilt.

Fourth, Newell claimed that the Superior Court allowed inadmissible testimony of his probation officer during his penalty phase. The probation officer testified that Newell had multiple opportunities to get help for his substance abuse. Newell claimed that, because he did not present the fact that he could not get help for his drug problem as a mitigating factor, the State was not allowed to present this evidence in rebuttal. The Court noted, however, that Newell in fact had presented this evidence in both the guilt and penalty phases. Evidence from the guilt phase was deemed admitted for the sentencing proceedings. A.R.S. § 13-703(D). Furthermore, the jury was permitted “to consider any factors that are offered—no matter who offers them—when considering mitigation.” See A.R.S. § 13-703(G).

Fifth, Newell claimed that the Superior Court improperly excluded Newell’s mental health expert as a sanction for his refusal to submit to a “court-ordered examination by the State’s mental health expert.” Contrary to Newell’s argument that the examination would have violated his privilege against self-incrimination, the Court’s precedent had directly resolved the issue against Newell. Phillips v. Araneta, 208 Ariz. 280, 93 P.3d 480 (2004).

Finally, as required by statute, the Court independently reviewed the propriety of the death sentence. See A.R.S. § 13-703.04 (2003). The Court concluded that “in view of the compelling aggravating circumstances, the mitigation evidence simply fails to rise to a level that would call for leniency.”

Justice Ryan authored the unanimous opinion.

Posted by azapp @ Mon, May 1, 2006

Guerra v. Bejarano: Division One Affirms That the Earliest Authorized Effective Date for Modification of a Child Support Order Concerning Multiple Children is the Filing Date of the Petition

The father of two children filed a petition seeking a modification of his child support obligation almost two years after one of his sons emancipated, contending that his support obligation should have been retroactively modified to the date of emancipation. The trial court found that the support obligation could not be retroactively modified earlier than the date of filing the petition for modification when there are remaining unemancipated children subject to the support order. The court of appeals affirmed, applying the plain language of A.R.S. §§ 25-327(A), -503(E), and Guideline § 25 (if “the duty to support one of the children stops, the order is not automatically reduced by that child’s share”). The court distinguished this case from Guzman v. Guzman, 175 Ariz. 183, 184, 854 P.2d 1169, 1170 (App. 1993) on the grounds that only one child was subject to the support order in that case. Thus, the court concluded, while the Father’s obligation to support the son automatically terminated upon the son’s emancipation, the support obligation did not automatically decrease in light of the father’s continuing duty to support his other child.

Posted by azapp @ Mon, May 1, 2006