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Thursday, June 29, 2006
In re King (06/26/06): Supreme Court Denies Convicted Felon’s Application to Practice Law
Lee Keller King, who was previously convicted of attempted murder, applied to practice law in Arizona in 2003. After initially recommending that the Court deny King’s application, the Committee on Character and Fitness recommended King’s admission following a second hearing in 2005. The Court, on its own motion, continued consideration of King’s application and independently determined that King did not possess the requisite character and fitness to gain admission to practice law in Arizona.
The Court determined that King did not satisfy the burden of proving complete rehabilitation from the character deficits that led to the commission of his crime. Citing In re Hamm, 211 Ariz. 458, 123 P.3d 652 (2005), the Court found that attempted murder was a “case of extremely damning past misconduct,” and found that King’s evidence fell “short of the ‘virtually impossible’ showing needed to erase the stain of his criminal misconduct.” The Court found that King had failed accept responsibility for his past criminal conduct and that he had neither identified nor overcome the weakness that led to his unlawful conduct. The Court emphasized that it had not adopted a bright-line rule to disqualify convicted felons from practicing law in Arizona, but felt that King had failed to present the quantum of evidence required to satisfy his “extraordinary” burden.
Justice Hurwitz dissented, concluding that in practice the Court had adopted the very bright-line rule it purported to abjure. The dissent noted that King had been admitted to the Texas bar in 1994, had been a model citizen for nearly thirty years, and had convinced the Committee on Character and Fitness that he was credible and rehabilitated. The dissent further rejected the application of the “virtually impossible” standard in this case, noting the distinctions between first degree murder (the felony in In re Hamm) and attempted murder. Justice Hurwitz concluded that King had met his difficult burden in establishing rehabilitation and good moral character.
Judge Timmer, sitting for Justice Scott Bales (who recused himself) authored the opinion; Justices McGregor, Berch, and Ryan concurred. Justice Hurwitz dissented.
Lee Keller King, who was previously convicted of attempted murder, applied to practice law in Arizona in 2003. After initially recommending that the Court deny King’s application, the Committee on Character and Fitness recommended King’s admission following a second hearing in 2005. The Court, on its own motion, continued consideration of King’s application and independently determined that King did not possess the requisite character and fitness to gain admission to practice law in Arizona.
The Court determined that King did not satisfy the burden of proving complete rehabilitation from the character deficits that led to the commission of his crime. Citing In re Hamm, 211 Ariz. 458, 123 P.3d 652 (2005), the Court found that attempted murder was a “case of extremely damning past misconduct,” and found that King’s evidence fell “short of the ‘virtually impossible’ showing needed to erase the stain of his criminal misconduct.” The Court found that King had failed accept responsibility for his past criminal conduct and that he had neither identified nor overcome the weakness that led to his unlawful conduct. The Court emphasized that it had not adopted a bright-line rule to disqualify convicted felons from practicing law in Arizona, but felt that King had failed to present the quantum of evidence required to satisfy his “extraordinary” burden.
Justice Hurwitz dissented, concluding that in practice the Court had adopted the very bright-line rule it purported to abjure. The dissent noted that King had been admitted to the Texas bar in 1994, had been a model citizen for nearly thirty years, and had convinced the Committee on Character and Fitness that he was credible and rehabilitated. The dissent further rejected the application of the “virtually impossible” standard in this case, noting the distinctions between first degree murder (the felony in In re Hamm) and attempted murder. Justice Hurwitz concluded that King had met his difficult burden in establishing rehabilitation and good moral character.
Judge Timmer, sitting for Justice Scott Bales (who recused himself) authored the opinion; Justices McGregor, Berch, and Ryan concurred. Justice Hurwitz dissented.
Posted by azapp @ Thu, Jun 29, 2006
Friday, June 23, 2006
Line-Item Veto
A recent story on KVOA.com discusses the past involvement of a Justice with Napolitano and how this involvement affects the current line-item veto case.
A recent story on KVOA.com discusses the past involvement of a Justice with Napolitano and how this involvement affects the current line-item veto case.
Posted by azapp @ Fri, Jun 23, 2006
Monday, June 19, 2006
Butch Randolph v. International Fidelity (06/13/06) Division One Holds That The Subcontractor is Not Disqualified From Recovery of the Value of Material Against a Surety’s Construction Payment Bond Because the Subcontractor Is Not a Licensed Contractor, Where Subcontractor Supplies Materials But Performs No Installation, Regardless of the Cost of the Items to Be Installed.
A general contractor was responsible for a municipal park project in Glendale. The general contractor obtained from the surety a $2.2 million statutory payment bond pursuant to A.R.S. § 34-222 (2000). The subcontractor agreed to supply barbeque grills and armadas for the park project. The subcontractor was not a licensed contractor, but a licensed contractor actually installed the grills and armadas. The general contractor failed to pay the subcontractor for the grills and armadas. When the surety failed to pay the subcontractor’s claim for payment, the subcontractor sued for the price of the grills and armadas.
The surety argued that the subcontractor was barred from recovery for the materials because it was not a licensed contractor. The superior court determined the subcontractor was exempt from the licensing requirement and entered summary judgment in its favor.
The Court of Appeals unanimously affirmed the trial court’s entry of summary judgment based on the exemptions in A.R.S. § 32-1121(A)(4) . The Court found that this statute creates two exemptions: it exempts contractors from the licensing requirement who merely supply materials and perform no installation, and it exempts suppliers of materials who also install them if the value of the transaction does not exceed $750 in value. Although the grills and armadas at issue exceeded $750 in value, the $750 condition only applied to a supplier of materials that also actually installs the materials. To interpret the statute otherwise would render a portion of the statute meaningless, in contravention of well-established statutory interpretation principles. The Court also noted that their interpretation is consistent with the consumer protection purposes of the statute.
Judge Lankford authored the opinion; Judge Timmer and Judge Snow concurred.
A general contractor was responsible for a municipal park project in Glendale. The general contractor obtained from the surety a $2.2 million statutory payment bond pursuant to A.R.S. § 34-222 (2000). The subcontractor agreed to supply barbeque grills and armadas for the park project. The subcontractor was not a licensed contractor, but a licensed contractor actually installed the grills and armadas. The general contractor failed to pay the subcontractor for the grills and armadas. When the surety failed to pay the subcontractor’s claim for payment, the subcontractor sued for the price of the grills and armadas.
The surety argued that the subcontractor was barred from recovery for the materials because it was not a licensed contractor. The superior court determined the subcontractor was exempt from the licensing requirement and entered summary judgment in its favor.
The Court of Appeals unanimously affirmed the trial court’s entry of summary judgment based on the exemptions in A.R.S. § 32-1121(A)(4) . The Court found that this statute creates two exemptions: it exempts contractors from the licensing requirement who merely supply materials and perform no installation, and it exempts suppliers of materials who also install them if the value of the transaction does not exceed $750 in value. Although the grills and armadas at issue exceeded $750 in value, the $750 condition only applied to a supplier of materials that also actually installs the materials. To interpret the statute otherwise would render a portion of the statute meaningless, in contravention of well-established statutory interpretation principles. The Court also noted that their interpretation is consistent with the consumer protection purposes of the statute.
Judge Lankford authored the opinion; Judge Timmer and Judge Snow concurred.
Posted by azapp @ Mon, Jun 19, 2006
Barth v. Cochise County (06/15/06): Division Two Holds That The County Employee Constructive Discharge Statute, A.R.S. § 23-1502, Does Not Displace The Notice Of Claim Requirement In A.R.S. § 12-821.01 For Constructive Discharge Claims.
Keith Barth was a sergeant with the Cochise County Sheriff’s Department. The Department demoted Barth to deputy sheriff on the basis that Barth “lacked the qualities to be a supervisor . . . .” Barth eventually filed a document titled “Notice of Claim” with the county board of supervisors. He claimed that “the county had subjected him to harassment, retaliation, retribution, and interference and that one supervisor had made defamatory remarks of him.” Several months later, he sent a letter to the county attorney “alleging he had been constructively discharged from his position.” Barth resigned over a month later and filed suit against the county. The trial court granted the county’s motion to dismiss Barth’s constructive discharge claim because he “had failed to file a proper notice of claim.”
The Arizona Court of Appeals affirmed. The court first held that, contrary to Barth’s position, the constructive discharge statute, A.R.S. § 23-1502, did not displace the notice of claim requirement in A.R.S. § 12-821.01 for constructive discharge claims. The two statutes did not conflict. The court then concluded that Barth’s notice of claim document failed to meet the statute’s specificity requirements. Finally, the court concluded that the trial court did not abuse its discretion by awarding attorneys’ fees to the county because the county’s affidavit in support of the award set forth a reasonable basis for the hourly cost and listed the requisite billing information. See Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 673 P.2d 927 (Ct. App. 1983).
Judge Espinosa authored the unanimous opinion.
Keith Barth was a sergeant with the Cochise County Sheriff’s Department. The Department demoted Barth to deputy sheriff on the basis that Barth “lacked the qualities to be a supervisor . . . .” Barth eventually filed a document titled “Notice of Claim” with the county board of supervisors. He claimed that “the county had subjected him to harassment, retaliation, retribution, and interference and that one supervisor had made defamatory remarks of him.” Several months later, he sent a letter to the county attorney “alleging he had been constructively discharged from his position.” Barth resigned over a month later and filed suit against the county. The trial court granted the county’s motion to dismiss Barth’s constructive discharge claim because he “had failed to file a proper notice of claim.”
The Arizona Court of Appeals affirmed. The court first held that, contrary to Barth’s position, the constructive discharge statute, A.R.S. § 23-1502, did not displace the notice of claim requirement in A.R.S. § 12-821.01 for constructive discharge claims. The two statutes did not conflict. The court then concluded that Barth’s notice of claim document failed to meet the statute’s specificity requirements. Finally, the court concluded that the trial court did not abuse its discretion by awarding attorneys’ fees to the county because the county’s affidavit in support of the award set forth a reasonable basis for the hourly cost and listed the requisite billing information. See Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 673 P.2d 927 (Ct. App. 1983).
Judge Espinosa authored the unanimous opinion.
Posted by azapp @ Mon, Jun 19, 2006
Friday, June 16, 2006
Hurdles of arguing before Arizona's highest tribunal
An article on azcentral.com gives pointers on arguing before the Arizona Supreme Court.
An article on azcentral.com gives pointers on arguing before the Arizona Supreme Court.
Posted by azapp @ Fri, Jun 16, 2006
Wednesday, June 14, 2006
An article about State v Grell.
An article on Az.com discusses the Supreme Court's decision to reject a convicted murderer's claim of mental retardation to avoid the death penalty. The case has been sent back to Maricopa County Superior Court to have a jury decide whether he should be put to death.
An article on Az.com discusses the Supreme Court's decision to reject a convicted murderer's claim of mental retardation to avoid the death penalty. The case has been sent back to Maricopa County Superior Court to have a jury decide whether he should be put to death.
Posted by azapp @ Wed, Jun 14, 2006
State v. Grell (06/06/06): Supreme Court Upholds Trial Court’s Determination That Capital Defendant Failed To Prove Mental Retardation Pursuant To A.R.S. § 13-703.02, But Remands For Jury Sentencing.
Shawn Grell was convicted of first degree murder in 2000 following a bench trial on stipulated facts. Following a sentencing hearing before the Judge, Grell was sentenced to death. While the case was on direct appeal, the United State Supreme Court decided two cases, Ring v. Arizona (Ring II), 536 U.S. 584 (2002) (holding that juries must find aggravating factors necessary for imposition of the death penalty), and Atkins v. Virginia, 536 U.S. 304 (2002) (holding that mentally retarded defendants may not be executed). As a result, the Arizona Supreme Court remanded to the trial court to re-examine Grell’s claim of mental retardation, and directing the trial court to follow the procedures set forth in A.R.S. § 13-703.02 for determining mental retardation. State v. Grell (Grell I), 205 Ariz. 57 (2003). On remand, the trial court concluded that Grell had failed to prove mental retardation by clear and convincing evidence as required by section 13-703.02.
On appeal, Grell challenged the constitutionality of Arizona’s process for determining mental retardation. Specifically, Grell asserted that 1) the State should bear the burden of proving a lack of mental retardation, 2) if the Defendant bears the burden of proof, that burden should be a preponderance of the evidence, and 3) the process should be bifurcated allowing first a judge to determine whether mental retardation bar’s defendant’s execution, and then a jury to find beyond a reasonable doubt that the defendant does not have mental retardation. The Court in a 4-1 opinion rejected defendant’s arguments. The Majority first noted that the Supreme Court in Atkins left the states free to develop their own procedures for determining mental retardation, so long as those procedures comply with the Constitution by excluding from the death penalty those individuals about whom there is a national consensus as to mental retardation. The Majority held that nothing in Atkins requires that the State bear the burden of proving a negative beyond a reasonable doubt. With respect to the standard of proof required, the Majority found compelling the fact that A.R.S. § 13-703.02 provides for a rebuttable presumption of mental retardation for those defendants whose IQ score falls below 65. Thus, the heavier burden of proof by clear and convincing evidence is only placed of those defendants about whom there is no national consensus as to their mental retardation. Finally, the Majority concluded that the lack of mental retardation is not the functional equivalent of an element of the crime, and therefore under Apprendi and its progeny, the lack of mental retardation need not be found by a jury beyond a reasonable doubt.
Justice Bales, concurring in part and dissenting in part, challenged the majority’s statement of the issue. Justice Bales argued that the question faced by the court was whether the constitution permits states to execute defendants who are more likely than not mentally retarded but cannot prove their retardation by clear and convincing evidence. Thus, Just Bales asserted that the proper standard of proof for a defendant attempting to prove mental retardation should be a preponderance of the evidence. Justice Bales argued that the appropriate analysis is that set forth in Cooper v. Oklahoma, 517 U.S. 348 (1996). There, the Supreme Court held that where an important constitutional right was at issue, the Court would weigh the respective interests of the State and defendant at stake in determining whether fundamental fairness permitted imposition of a particular standard of proof. Applying that balancing analysis here, Justice Bales argued that “[w]hen the relative risks are death and a lesser available punishment, the defendant’s right not to be executed if mentally retarded outweighs the state’s interest as a matter of federal constitutional law.” (internal quotation omitted). Thus, the defendant should only be required to prove mental retardation by a preponderance of the evidence.
Finally, Justice Bales concurred with the Majority’s determination that the case must be remanded for jury sentencing because Grell preserved his right to a jury trial for sentencing within the stipulated agreement he entered into with the State.
Vice Chief Justice Berch authored the majority opinion; Justice Bales wrote separately concurring in part and dissenting in part.
Shawn Grell was convicted of first degree murder in 2000 following a bench trial on stipulated facts. Following a sentencing hearing before the Judge, Grell was sentenced to death. While the case was on direct appeal, the United State Supreme Court decided two cases, Ring v. Arizona (Ring II), 536 U.S. 584 (2002) (holding that juries must find aggravating factors necessary for imposition of the death penalty), and Atkins v. Virginia, 536 U.S. 304 (2002) (holding that mentally retarded defendants may not be executed). As a result, the Arizona Supreme Court remanded to the trial court to re-examine Grell’s claim of mental retardation, and directing the trial court to follow the procedures set forth in A.R.S. § 13-703.02 for determining mental retardation. State v. Grell (Grell I), 205 Ariz. 57 (2003). On remand, the trial court concluded that Grell had failed to prove mental retardation by clear and convincing evidence as required by section 13-703.02.
On appeal, Grell challenged the constitutionality of Arizona’s process for determining mental retardation. Specifically, Grell asserted that 1) the State should bear the burden of proving a lack of mental retardation, 2) if the Defendant bears the burden of proof, that burden should be a preponderance of the evidence, and 3) the process should be bifurcated allowing first a judge to determine whether mental retardation bar’s defendant’s execution, and then a jury to find beyond a reasonable doubt that the defendant does not have mental retardation. The Court in a 4-1 opinion rejected defendant’s arguments. The Majority first noted that the Supreme Court in Atkins left the states free to develop their own procedures for determining mental retardation, so long as those procedures comply with the Constitution by excluding from the death penalty those individuals about whom there is a national consensus as to mental retardation. The Majority held that nothing in Atkins requires that the State bear the burden of proving a negative beyond a reasonable doubt. With respect to the standard of proof required, the Majority found compelling the fact that A.R.S. § 13-703.02 provides for a rebuttable presumption of mental retardation for those defendants whose IQ score falls below 65. Thus, the heavier burden of proof by clear and convincing evidence is only placed of those defendants about whom there is no national consensus as to their mental retardation. Finally, the Majority concluded that the lack of mental retardation is not the functional equivalent of an element of the crime, and therefore under Apprendi and its progeny, the lack of mental retardation need not be found by a jury beyond a reasonable doubt.
Justice Bales, concurring in part and dissenting in part, challenged the majority’s statement of the issue. Justice Bales argued that the question faced by the court was whether the constitution permits states to execute defendants who are more likely than not mentally retarded but cannot prove their retardation by clear and convincing evidence. Thus, Just Bales asserted that the proper standard of proof for a defendant attempting to prove mental retardation should be a preponderance of the evidence. Justice Bales argued that the appropriate analysis is that set forth in Cooper v. Oklahoma, 517 U.S. 348 (1996). There, the Supreme Court held that where an important constitutional right was at issue, the Court would weigh the respective interests of the State and defendant at stake in determining whether fundamental fairness permitted imposition of a particular standard of proof. Applying that balancing analysis here, Justice Bales argued that “[w]hen the relative risks are death and a lesser available punishment, the defendant’s right not to be executed if mentally retarded outweighs the state’s interest as a matter of federal constitutional law.” (internal quotation omitted). Thus, the defendant should only be required to prove mental retardation by a preponderance of the evidence.
Finally, Justice Bales concurred with the Majority’s determination that the case must be remanded for jury sentencing because Grell preserved his right to a jury trial for sentencing within the stipulated agreement he entered into with the State.
Vice Chief Justice Berch authored the majority opinion; Justice Bales wrote separately concurring in part and dissenting in part.
Posted by azapp @ Wed, Jun 14, 2006
Thursday, June 8, 2006
Notice of Oral Argument Hearing in E-mail Case
An article on az.com notes that on June 13, 2006 the Arizona Court of Appeals will hear arguments about the public release of emails from a retired Pinal County manager's office computer.
An article on az.com notes that on June 13, 2006 the Arizona Court of Appeals will hear arguments about the public release of emails from a retired Pinal County manager's office computer.
Posted by azapp @ Thu, Jun 8, 2006
Tuesday, June 6, 2006
An article on Sonoran Desert Investigations, Inc. v. Hernandez
An article on az.com discusses Division Two's recent decision in Sonoran Desert Investigations, Inc. v. Hernandez, in which the court overturned a state law that protects businesses and others from lawsuits brought on behalf of people injured while committing a crime.
An article on az.com discusses Division Two's recent decision in Sonoran Desert Investigations, Inc. v. Hernandez, in which the court overturned a state law that protects businesses and others from lawsuits brought on behalf of people injured while committing a crime.
Posted by azapp @ Tue, Jun 6, 2006
Monday, June 5, 2006
Sonoran Desert Investigations, INC. v. Hernandez (06/02/06): Division Two Panel Finds Statute Providing For Nonliabilty for Damages that Result During Criminal Act Unconstitutional
In a special action, a unanimous panel of division two held that A.R.S. 12-712(B), which absolves a defendant from liability to a plaintiff who is injured while involved in a criminal act, was unconstitutional under article XVIII, Section 5 of the Arizona Constitution.
In the underlying action, Frank Hernandez died of asphyxiation after he was apprehended on suspicion of shoplifting by a private security guard at a Safeway. After Hernandez's widow filed a wrongful death action, the security service filed a motion for summary judgment under 12-712(B), which provides that "a defendant is not liable for damages that the plaintiff incurs if the plaintiff is harmed...while the plaintiff is attempting to commit or committing a misdemeanor criminal act." Article XVIII, Section 5 of the Arizona Constitution relegates all questions of contributory negligence or assumption of risk defenses to the jury, and has been interpreted to prohibit a statute from barring recovery of damages for "the antecedent conduct of a person injured" from "one otherwise liable for the injury." City of Tucson v. Fahringer, 164 Ariz. 599, 795 P.2d 819 (1990). Finding that the statutory defense provided in 712(B) insufficiently indistinguishable from defenses of contributory negligence and assumption of the risk, the absolute bar to recovery provided in that section violates the Arizona constitution.
In a special action, a unanimous panel of division two held that A.R.S. 12-712(B), which absolves a defendant from liability to a plaintiff who is injured while involved in a criminal act, was unconstitutional under article XVIII, Section 5 of the Arizona Constitution.
In the underlying action, Frank Hernandez died of asphyxiation after he was apprehended on suspicion of shoplifting by a private security guard at a Safeway. After Hernandez's widow filed a wrongful death action, the security service filed a motion for summary judgment under 12-712(B), which provides that "a defendant is not liable for damages that the plaintiff incurs if the plaintiff is harmed...while the plaintiff is attempting to commit or committing a misdemeanor criminal act." Article XVIII, Section 5 of the Arizona Constitution relegates all questions of contributory negligence or assumption of risk defenses to the jury, and has been interpreted to prohibit a statute from barring recovery of damages for "the antecedent conduct of a person injured" from "one otherwise liable for the injury." City of Tucson v. Fahringer, 164 Ariz. 599, 795 P.2d 819 (1990). Finding that the statutory defense provided in 712(B) insufficiently indistinguishable from defenses of contributory negligence and assumption of the risk, the absolute bar to recovery provided in that section violates the Arizona constitution.
Posted by azapp @ Mon, Jun 5, 2006
Abuhl v. Honorable Lynda Howell (5/30/06): Division One Holds That False Reporting to a Law Enforcement Agency Is Not a Jury-Eligible Offense
Jeffrey S. Abuhl was charged with false reporting in violation of A.R.S. § 13-2907.01. A Phoenix City Court Judge denied his request for a jury trial. The Court of Appeals held that under the two-pronged test set forth in Derendal v. Griffith, 209 Ariz. 416, 104 P.3d 147 (2005), false reporting in violation of A.R.S. § 13-2907.01 is not a jury-eligible offense. The Court explained that in Derendal the Supreme Court removed the moral quality prong of the prior test set forth in Rothweiler v. Superior Court of Pima County, 100 Ariz. 37, 410 P.2d 479 (1966). Accordingly, whether the right to a jury trial exists with respect to a particular criminal offense is determined by: 1) the relationship of the offense to the common law; and 2) the severity of the penalty inflictable.
Justice Portley authored the decision. Judges Ehrlich and Norris concurred.
Jeffrey S. Abuhl was charged with false reporting in violation of A.R.S. § 13-2907.01. A Phoenix City Court Judge denied his request for a jury trial. The Court of Appeals held that under the two-pronged test set forth in Derendal v. Griffith, 209 Ariz. 416, 104 P.3d 147 (2005), false reporting in violation of A.R.S. § 13-2907.01 is not a jury-eligible offense. The Court explained that in Derendal the Supreme Court removed the moral quality prong of the prior test set forth in Rothweiler v. Superior Court of Pima County, 100 Ariz. 37, 410 P.2d 479 (1966). Accordingly, whether the right to a jury trial exists with respect to a particular criminal offense is determined by: 1) the relationship of the offense to the common law; and 2) the severity of the penalty inflictable.
Justice Portley authored the decision. Judges Ehrlich and Norris concurred.
Posted by azapp @ Mon, Jun 5, 2006
Friday, June 2, 2006
Brunet v. Murphy (May 30, 2006): Division One Holds that “Savings Statute” Preserved Claim Under Adult Protective Services Act Despite Legislative Amendment to Eliminate Claims Against Physicians Such as the Defendant
In 2003, the Legislature amended the Adult Protective Services Act, A.R.S. §§ 46-451 to -457 (APSA) to limit those who could be sued under the act. The estate of a deceased man later filed claims under the APSA for conduct that had occurred before the amendment. Defendants filed a motion for summary judgment, claiming that they could not be held liable because they were added as defendants after the effective date of the amendment and did not fall within the class of health care providers subject to liability under the amended act. The trial court granted the motion, finding “express legislative intent to apply the amended statute to accrued but unfiled causes of action.”
On an appeal by the estate, the Court of Appeals reversed the grant of summary judgment. The court found that applying the amended statute to a claim made after the amendment took effect did not constitute retroactive application of the statute; therefore, A.R.S. § 1-244 (“no statute is retroactive unless expressly declared therein”) did not apply. The court held, however, that the “savings statute,” A.R.S. § 1-249, preserved the claim against abrogation by the 2003 amendment. That statute provides that a “repealing act” will not affect a right already accrued. Although the right to sue defendants was not “vested” prior to the claim being brought, the right to assert the claim had already “accrued” for purposes of A.R.S. § 1-249 before the 2003 amendment. The amendment constituted a “repealing act” because it eliminated the previously existing right to bring APSA claims against health care providers such as the defendants.
In 2003, the Legislature amended the Adult Protective Services Act, A.R.S. §§ 46-451 to -457 (APSA) to limit those who could be sued under the act. The estate of a deceased man later filed claims under the APSA for conduct that had occurred before the amendment. Defendants filed a motion for summary judgment, claiming that they could not be held liable because they were added as defendants after the effective date of the amendment and did not fall within the class of health care providers subject to liability under the amended act. The trial court granted the motion, finding “express legislative intent to apply the amended statute to accrued but unfiled causes of action.”
On an appeal by the estate, the Court of Appeals reversed the grant of summary judgment. The court found that applying the amended statute to a claim made after the amendment took effect did not constitute retroactive application of the statute; therefore, A.R.S. § 1-244 (“no statute is retroactive unless expressly declared therein”) did not apply. The court held, however, that the “savings statute,” A.R.S. § 1-249, preserved the claim against abrogation by the 2003 amendment. That statute provides that a “repealing act” will not affect a right already accrued. Although the right to sue defendants was not “vested” prior to the claim being brought, the right to assert the claim had already “accrued” for purposes of A.R.S. § 1-249 before the 2003 amendment. The amendment constituted a “repealing act” because it eliminated the previously existing right to bring APSA claims against health care providers such as the defendants.
Posted by azapp @ Fri, Jun 2, 2006
Thursday, June 1, 2006
Mejak v. Granville (May 24, 2006): Supreme Court Reverses Conviction for "Luring a Minor for Sexual Exploitation.
A unanimous Supreme Court reversed last week the indictment of Jeremy Mejak for violating ARS 13-3554(a), which prohibits offering or soliciting sexual conduct when the person offering or soliciting the conduct knows or has reason to know that the recipient of the offer is a minor. In this case, Mejak engaged in online chat with and eventually solicitation of, a television reporter posing as a 13 year old during an "expose" on internet sex crimes. When Mejak and his chat partner agreed to meet, he was met not by a 13 year old, but by television cameras.
Indicted based upon tapes of the meeting provided to police, Mejak filed a motion to dismiss in Superior Court and then a Special Action in the Court of Appeals arguing that his target was not, in fact, a minor, and that therefore he could not be convicted of the crime. Though the Court of Appeals declined jurisdiction, the Supreme Court accepted and agreed with Mejak that he had not violated 13-3554(a). The Court reasoned that the statute provides specifically that the victim of solicitation under 13-33554(a) must be a minor or a peace officer posing as a minor. Here, because the reporter satisfied neither category, the indictment had to be dismissed.
A unanimous Supreme Court reversed last week the indictment of Jeremy Mejak for violating ARS 13-3554(a), which prohibits offering or soliciting sexual conduct when the person offering or soliciting the conduct knows or has reason to know that the recipient of the offer is a minor. In this case, Mejak engaged in online chat with and eventually solicitation of, a television reporter posing as a 13 year old during an "expose" on internet sex crimes. When Mejak and his chat partner agreed to meet, he was met not by a 13 year old, but by television cameras.
Indicted based upon tapes of the meeting provided to police, Mejak filed a motion to dismiss in Superior Court and then a Special Action in the Court of Appeals arguing that his target was not, in fact, a minor, and that therefore he could not be convicted of the crime. Though the Court of Appeals declined jurisdiction, the Supreme Court accepted and agreed with Mejak that he had not violated 13-3554(a). The Court reasoned that the statute provides specifically that the victim of solicitation under 13-33554(a) must be a minor or a peace officer posing as a minor. Here, because the reporter satisfied neither category, the indictment had to be dismissed.
Posted by azapp @ Thu, Jun 1, 2006
State v. Arellano (May 24, 2006): Supreme Court Holds That Superior Court Properly Ruled That Capital Defendants Had Established A Rebuttable Presumption Of Mental Retardation By Submission Of Expert Reports On Defendants’ Low IQ Scores, But The Superior Court Abused Its Discretion By Excluding As Irrelevant Lay Witnesses’ Testimony Regarding The Defendants’ Adaptive Behavior After Reaching The Age Of Eighteen.
According to the evidence at trial, Defendants Michael and Rudi Apelt conspired to kill Michael’s wife. For the murder, the jury sentenced them to death.
Following Atkins v. Virginia, 536 U.S. 304 (2002), the Defendants “filed petitions for post-conviction relief claiming that they are mentally retarded.” The appeal arose out of the Superior Court’s interpretation of A.R.S. § 13-703.02, which specifies the procedure to determine whether a capital defendant is mentally retarded. The Superior Court first “found that the Apelts had established a rebuttable presumption of mental retardation. Second, the court . . . preclude[d] testimony by employees of the Arizona Department of Corrections (ADOC) about the Apelts’ present adaptive behavior.”
The Supreme Court held that the Superior Court properly determined, pre-hearing, that the Defendants’ had established a rebuttable presumption of mental retardation by submitting expert reports of IQ scores below sixty-five. A.R.S. § 13-703.02(G). The Superior Court abused its discretion, however, by excluding as irrelevant lay witness testimony of ADOC employees who had observed the Defendants’ adaptive behavior after the Defendants had reached the age of eighteen. The Court concluded that nothing in the statute barred the testimony and the testimony could be relevant to determine the defendants’ adaptive behavior before turning eighteen. See A.R.S. § 13-703.02(K).
Chief Justice McGregor authored the unanimous opinion.
According to the evidence at trial, Defendants Michael and Rudi Apelt conspired to kill Michael’s wife. For the murder, the jury sentenced them to death.
Following Atkins v. Virginia, 536 U.S. 304 (2002), the Defendants “filed petitions for post-conviction relief claiming that they are mentally retarded.” The appeal arose out of the Superior Court’s interpretation of A.R.S. § 13-703.02, which specifies the procedure to determine whether a capital defendant is mentally retarded. The Superior Court first “found that the Apelts had established a rebuttable presumption of mental retardation. Second, the court . . . preclude[d] testimony by employees of the Arizona Department of Corrections (ADOC) about the Apelts’ present adaptive behavior.”
The Supreme Court held that the Superior Court properly determined, pre-hearing, that the Defendants’ had established a rebuttable presumption of mental retardation by submitting expert reports of IQ scores below sixty-five. A.R.S. § 13-703.02(G). The Superior Court abused its discretion, however, by excluding as irrelevant lay witness testimony of ADOC employees who had observed the Defendants’ adaptive behavior after the Defendants had reached the age of eighteen. The Court concluded that nothing in the statute barred the testimony and the testimony could be relevant to determine the defendants’ adaptive behavior before turning eighteen. See A.R.S. § 13-703.02(K).
Chief Justice McGregor authored the unanimous opinion.
Posted by azapp @ Thu, Jun 1, 2006
