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Wednesday, August 30, 2006
Moreno v. Jones (8/09/2006): Division of Arizona Supreme Court Holds That False Verification of Nominating Petition Does Not Constitute “Petition Forgery.”
A person seeking to appear on the ballot for a partisan primary election must submit nomination petitions signed by qualified electors who either belong to the candidate’s party or are not members of another party represented on the ballot. Republican Russell Jones, a candidate for the State Senate representing Legislative District 24, filed 29 nomination petitions containing 315 signatures, more than the 207 required, with the Arizona Secretary of State. Paul Moreno challenged the petitions in Superior Court, charging that the petitions omitted required information, contained invalid signatures, and contained false verifications by Jones attesting that he had circulated the petitions and obtained the signatures personally. At trial, Jones testified that some petitions he verified as having personally circulated actually were handled by others at an event at which he was present. The judge held that the signatures on these petitions were invalid. Other signatures were invalidated for other reasons, but not enough to bring the number of valid signatures below 207. The judge accordingly qualified Jones for the ballot. Moreno, however, filed a motion to reopen the judgment for a new trial, citing new evidence suggesting that Jones falsely claimed to have circulated other petitions as well. The judge granted the motion and held a new trial, which culminated in a finding that Jones had committed petition forgery, as a result of which he was barred from seeking elected office for five years pursuant to A.R.S. § 16-351(F), which provides: “all petitions that have been submitted by a candidate who is found guilty of petition forgery shall be disqualified and that candidate shall not be eligible to seek election to a public office for a period of not less than five years.”
Jones appealed directly to the Arizona Supreme Court, which heard the case in division, with Chief Justice McGregor, Justice Hurwitz, and Justice Bales participating. Jones’ chief arguments on appeal were that there was insufficient evidence to support the finding that he did not circulate the petitions in question, and that even if he did not, he would not be guilty of petition forgery. The Court quickly rejected the first contention, noting that Jones’ own testimony confirmed that he had not personally circulated the petitions. Turning to the statutory argument, the Court first noted that the statute did not contain a definition of “petition forgery.” Examining the plain language and legislative history, the Court concluded that the term is intended to describe conduct in the nature of falsely signing another’s name or otherwise fabricating signatures on a petition – i.e., conduct violating A.R.S. § 16-1020. Jones could not properly have been found guilty of petition forgery, the Court reasoned, because the evidence indicated only that he had improperly verified petitions that others circulated. Because Jones had collected sufficient valid signatures to be placed on the ballot, the Court remanded the case with instructions that judgment be entered in Jones’ favor.
The opinion was authored by Justice Bales and joined by the Chief Justice and Justice Hurwitz.
A person seeking to appear on the ballot for a partisan primary election must submit nomination petitions signed by qualified electors who either belong to the candidate’s party or are not members of another party represented on the ballot. Republican Russell Jones, a candidate for the State Senate representing Legislative District 24, filed 29 nomination petitions containing 315 signatures, more than the 207 required, with the Arizona Secretary of State. Paul Moreno challenged the petitions in Superior Court, charging that the petitions omitted required information, contained invalid signatures, and contained false verifications by Jones attesting that he had circulated the petitions and obtained the signatures personally. At trial, Jones testified that some petitions he verified as having personally circulated actually were handled by others at an event at which he was present. The judge held that the signatures on these petitions were invalid. Other signatures were invalidated for other reasons, but not enough to bring the number of valid signatures below 207. The judge accordingly qualified Jones for the ballot. Moreno, however, filed a motion to reopen the judgment for a new trial, citing new evidence suggesting that Jones falsely claimed to have circulated other petitions as well. The judge granted the motion and held a new trial, which culminated in a finding that Jones had committed petition forgery, as a result of which he was barred from seeking elected office for five years pursuant to A.R.S. § 16-351(F), which provides: “all petitions that have been submitted by a candidate who is found guilty of petition forgery shall be disqualified and that candidate shall not be eligible to seek election to a public office for a period of not less than five years.”
Jones appealed directly to the Arizona Supreme Court, which heard the case in division, with Chief Justice McGregor, Justice Hurwitz, and Justice Bales participating. Jones’ chief arguments on appeal were that there was insufficient evidence to support the finding that he did not circulate the petitions in question, and that even if he did not, he would not be guilty of petition forgery. The Court quickly rejected the first contention, noting that Jones’ own testimony confirmed that he had not personally circulated the petitions. Turning to the statutory argument, the Court first noted that the statute did not contain a definition of “petition forgery.” Examining the plain language and legislative history, the Court concluded that the term is intended to describe conduct in the nature of falsely signing another’s name or otherwise fabricating signatures on a petition – i.e., conduct violating A.R.S. § 16-1020. Jones could not properly have been found guilty of petition forgery, the Court reasoned, because the evidence indicated only that he had improperly verified petitions that others circulated. Because Jones had collected sufficient valid signatures to be placed on the ballot, the Court remanded the case with instructions that judgment be entered in Jones’ favor.
The opinion was authored by Justice Bales and joined by the Chief Justice and Justice Hurwitz.
Posted by azapp @ Wed, Aug 30, 2006
Tuesday, August 29, 2006
Friedman v. Microsoft (8/26/2006): Arizona Court of Appeals Division One, Upholds, In Large Part, Trial Court’s Grant of Attorneys’ Fees to Class Counsel In Antitrust Action Against Microsoft
In consolidated class actions, the Arizona class members alleged that Microsoft had violated Arizona law by asserting wrongful monopoly power and engaging in anti-competitive conduct. The Arizona class action was initiated after a federal judge made extensive findings of fact supporting the conclusion that Microsoft had engaged in improper use of monopoly power and violated federal antitrust laws. 84 F.Supp.2d 9 (D.D.C. 1999) For that reason, Microsoft referred to the Arizona class action as a “tag-along action.” However, Microsoft and the class members litigated for over four years before settlement ensued, and during that time, class counsel certified the class and defended against dismissal based on federal precedent that indirect purchasers could not recover under federal antitrust law.
The settlement agreement provided that Microsoft agreed to pay reasonable attorneys’ fees “calculated on a common fund basis” for work performed by all counsel for plaintiffs. The trial court applied a 3.42 multiplier to the lodestar figure (calculated by “reasonable hours times a reasonable fee”), awarding class counsel $19,132,728 in attorneys’ fees. Microsoft appealed that award, arguing that the superior court erred both in its calculation of the lodestar figure and in applying a 3.42 multiplier.
While expressing “concerns” with the amount of fees awarded, the Court of Appeals affirmed most of the attorney’s fees awarded. The court affirmed the use of a 3.42 multiplier, but found the trial court erred by applying it to post-settlement work and in calculating the lodestar by including fees for litigation not expressly included in the settlement agreement. In so holding, the Court emphasized that Microsoft agreed in the settlement agreement to determine attorneys’ fees using the common fund doctrine, and the majority view is that the rationales for not using a multiplier in other attorneys’ fees contexts is inapplicable in the common fund context. The Court also noted that in Microsoft’s opposition to the fee application, its experts argued that a multiplier between 1.5 and 2. 3 could be used.
Judge Kessler authored the opinion; Judge Orozco and Gemmill concurred.
In consolidated class actions, the Arizona class members alleged that Microsoft had violated Arizona law by asserting wrongful monopoly power and engaging in anti-competitive conduct. The Arizona class action was initiated after a federal judge made extensive findings of fact supporting the conclusion that Microsoft had engaged in improper use of monopoly power and violated federal antitrust laws. 84 F.Supp.2d 9 (D.D.C. 1999) For that reason, Microsoft referred to the Arizona class action as a “tag-along action.” However, Microsoft and the class members litigated for over four years before settlement ensued, and during that time, class counsel certified the class and defended against dismissal based on federal precedent that indirect purchasers could not recover under federal antitrust law.
The settlement agreement provided that Microsoft agreed to pay reasonable attorneys’ fees “calculated on a common fund basis” for work performed by all counsel for plaintiffs. The trial court applied a 3.42 multiplier to the lodestar figure (calculated by “reasonable hours times a reasonable fee”), awarding class counsel $19,132,728 in attorneys’ fees. Microsoft appealed that award, arguing that the superior court erred both in its calculation of the lodestar figure and in applying a 3.42 multiplier.
While expressing “concerns” with the amount of fees awarded, the Court of Appeals affirmed most of the attorney’s fees awarded. The court affirmed the use of a 3.42 multiplier, but found the trial court erred by applying it to post-settlement work and in calculating the lodestar by including fees for litigation not expressly included in the settlement agreement. In so holding, the Court emphasized that Microsoft agreed in the settlement agreement to determine attorneys’ fees using the common fund doctrine, and the majority view is that the rationales for not using a multiplier in other attorneys’ fees contexts is inapplicable in the common fund context. The Court also noted that in Microsoft’s opposition to the fee application, its experts argued that a multiplier between 1.5 and 2. 3 could be used.
Judge Kessler authored the opinion; Judge Orozco and Gemmill concurred.
Posted by azapp @ Tue, Aug 29, 2006
Monday, August 28, 2006
Committee for Preservation of Established Neighborhoods v. Riffel (08/24/2006): Division One Affirms ruling that CPEN's Referendum Petitions Failed to Comply with Statutory Referendum Requirements
CPEN filed a referendum petition challenging a Wickenburg rezoning ordinance. The Wickenburg town clerk rejected the petition because they did not contain a description of the measure in the petition as required by A.R.S. Sec. 19-101(A). Instead of inserting the required language into the petition, CPEN stapled the description to its petition. CPEN filed a special action seeking to compel the clerk to put the referendum on the election ballot. The superior court ruled that the petition was invalid as a matter of law because it did not comply with 19-101(A). The appellate court agreed, rejecting CPEN's argument that the affixed description satisfied the constitutional and statutory principles required for referendum petition. The appellate court, applying the strict compliance standard required in W. Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 428-29 (1991), held that an attachment of the referendum description did not constitute an insertion of the description as required by section 19-101. Moreover, explained the court, requiring the circulators to include a description of the referred measure in the petition itself ensures that petition signers are informed about the measure referred in a way that attaching the description would not.
Judge Timmer authored the opinion in which Presiding Judge Orozco and Judge Weisberg concurred.
CPEN filed a referendum petition challenging a Wickenburg rezoning ordinance. The Wickenburg town clerk rejected the petition because they did not contain a description of the measure in the petition as required by A.R.S. Sec. 19-101(A). Instead of inserting the required language into the petition, CPEN stapled the description to its petition. CPEN filed a special action seeking to compel the clerk to put the referendum on the election ballot. The superior court ruled that the petition was invalid as a matter of law because it did not comply with 19-101(A). The appellate court agreed, rejecting CPEN's argument that the affixed description satisfied the constitutional and statutory principles required for referendum petition. The appellate court, applying the strict compliance standard required in W. Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 428-29 (1991), held that an attachment of the referendum description did not constitute an insertion of the description as required by section 19-101. Moreover, explained the court, requiring the circulators to include a description of the referred measure in the petition itself ensures that petition signers are informed about the measure referred in a way that attaching the description would not.
Judge Timmer authored the opinion in which Presiding Judge Orozco and Judge Weisberg concurred.
Posted by azapp @ Mon, Aug 28, 2006
Griffis v. Pinal County, et al (08/4/06): Division Two Rules That a Government Employees’ Personal E-mails Are Not Presumptively Open to Public Inspection Under Arizona’s Public Records Law
Pursuant to Arizona’s Public Records Law, A.R.S. § 39-121, Phoenix Newspapers, Inc. requested that Pinal County provide it with all of the County Manager Griffis’ e-mail messages for a specified period. Griffis sought to block release of e-mail records of a personal nature. The trial court found that as a matter of law everything on a county computer was presumed to be a public record and that a party objecting to disclosure must establish some expectation of privacy outweighing the public’s right know. The trial court ruled that Griffis did not overcome the presumption of public access and ordered disclosure of all e-mails. This appeal followed.
The court found that Griffis’ personal e-mails did not fall into any of three alternative definitions of “public records” found in Salt River Pima-Maricopa Indian Community v. Rogers, 168 Ariz. 531, 815 P.2d 900 (1991). The court further found that the public has no right of access to a public officer’s personal e-mails when they are not reasonably necessary to provide knowledge of the activities the officer undertook in furtherance of his duties. The court noted that Griffis acknowledged the government employer’s right to review and determine what e-mails are related to public business and are responsive to a public records request. Thus, the court affirmed the trial court’s order to the extent that it required disclosure of one e-mail addressing public business and reversed the remainder of the opinion.
Judge Pelander authored the opinion; Judges Brammer and Eckerstrom concurred
Pursuant to Arizona’s Public Records Law, A.R.S. § 39-121, Phoenix Newspapers, Inc. requested that Pinal County provide it with all of the County Manager Griffis’ e-mail messages for a specified period. Griffis sought to block release of e-mail records of a personal nature. The trial court found that as a matter of law everything on a county computer was presumed to be a public record and that a party objecting to disclosure must establish some expectation of privacy outweighing the public’s right know. The trial court ruled that Griffis did not overcome the presumption of public access and ordered disclosure of all e-mails. This appeal followed.
The court found that Griffis’ personal e-mails did not fall into any of three alternative definitions of “public records” found in Salt River Pima-Maricopa Indian Community v. Rogers, 168 Ariz. 531, 815 P.2d 900 (1991). The court further found that the public has no right of access to a public officer’s personal e-mails when they are not reasonably necessary to provide knowledge of the activities the officer undertook in furtherance of his duties. The court noted that Griffis acknowledged the government employer’s right to review and determine what e-mails are related to public business and are responsive to a public records request. Thus, the court affirmed the trial court’s order to the extent that it required disclosure of one e-mail addressing public business and reversed the remainder of the opinion.
Judge Pelander authored the opinion; Judges Brammer and Eckerstrom concurred
Posted by azapp @ Mon, Aug 28, 2006
Ritland v. Arizona State Board of Medical Examiners (08/17/06): Division One Holds That an Agency is Not Bound by an ALJ’s Credibility Findings and May Reject Them
The Board of Medical Examiners adopted an ALJ’s findings of fact regarding complaints made about Ritland, despite reservations expressed by some Board members as to the credibility of complaining witnesses. The Board did so after being advised by counsel that the ALJ was the finder of fact and the best course was to adopt the ALJ’s findings of fact. Ritland moved for review or rehearing, arguing that the Board has authority to make findings of fact regarding the credibility of a witness. The Board denied the motion and the superior court affirmed the Board’s decision. This appeal followed.
Judge Kessler, writing for a unanimous panel, held that as the final decision maker in a contested agency proceeding, an agency has the authority to make independent findings of fact, including credibility findings. Although an agency is not bound by an ALJ’s credibility findings, the agency must afford them greater weight than other findings of fact more objectively discernable from the record. An agency’s decision to depart from the ALJ’s credibility findings must cite to substantial evidence supporting such departure. In this case, because the Board’s decision might have been based on an erroneous understanding of the law, the Court of Appeals vacated the Board’s decision and remanded to the Board.
Judge Kessler authored the opinion; Judges Timmer and Winthrop concurred.
The Board of Medical Examiners adopted an ALJ’s findings of fact regarding complaints made about Ritland, despite reservations expressed by some Board members as to the credibility of complaining witnesses. The Board did so after being advised by counsel that the ALJ was the finder of fact and the best course was to adopt the ALJ’s findings of fact. Ritland moved for review or rehearing, arguing that the Board has authority to make findings of fact regarding the credibility of a witness. The Board denied the motion and the superior court affirmed the Board’s decision. This appeal followed.
Judge Kessler, writing for a unanimous panel, held that as the final decision maker in a contested agency proceeding, an agency has the authority to make independent findings of fact, including credibility findings. Although an agency is not bound by an ALJ’s credibility findings, the agency must afford them greater weight than other findings of fact more objectively discernable from the record. An agency’s decision to depart from the ALJ’s credibility findings must cite to substantial evidence supporting such departure. In this case, because the Board’s decision might have been based on an erroneous understanding of the law, the Court of Appeals vacated the Board’s decision and remanded to the Board.
Judge Kessler authored the opinion; Judges Timmer and Winthrop concurred.
Posted by azapp @ Mon, Aug 28, 2006
Thursday, August 17, 2006
Stoudamire v. Hon. Simon (08/01/06): Division Two Upholds Denial of Jury Trial to Former UA Basketball Star Accused of Possessing Marijuana and Paraphernalia
Damon Stoudamire was accused in 2003 of possession of marijuana and drug paraphernalia, both class six felonies. The justice court ruled that he was not entitled to a jury trial. Stoudamire sought special action review by the superior court, which accepted jurisdiction but denied relief. On appeal to Division Two of the Arizona Court of Appeals, Stoudamire argued that he was entitled to a jury trial under the Arizona Constitution. The Court of Appeals rejected the claim. Because the charged offenses had no jury-trial-eligible common law antecedent at the time of statehood, and because they were not designated as sufficiently serious crimes by the legislature, the offenses did not trigger the jury trial guarantee under the rule of Derendal v. Griffith, 209 Ariz. 416 (2005). The court concluded that State ex rel. Dean v. Dolny, 161 Ariz. 297 (1989) (finding jury trial right for defendant charged with possession of marijuana) was no longer controlling precedent in light of Derendal. The court therefore affirmed the superior court’s denial of Stoudamire’s request for a jury trial.
Judge Howard wrote the opinion for the panel; judges Pelander and Vasquez concurred.
Damon Stoudamire was accused in 2003 of possession of marijuana and drug paraphernalia, both class six felonies. The justice court ruled that he was not entitled to a jury trial. Stoudamire sought special action review by the superior court, which accepted jurisdiction but denied relief. On appeal to Division Two of the Arizona Court of Appeals, Stoudamire argued that he was entitled to a jury trial under the Arizona Constitution. The Court of Appeals rejected the claim. Because the charged offenses had no jury-trial-eligible common law antecedent at the time of statehood, and because they were not designated as sufficiently serious crimes by the legislature, the offenses did not trigger the jury trial guarantee under the rule of Derendal v. Griffith, 209 Ariz. 416 (2005). The court concluded that State ex rel. Dean v. Dolny, 161 Ariz. 297 (1989) (finding jury trial right for defendant charged with possession of marijuana) was no longer controlling precedent in light of Derendal. The court therefore affirmed the superior court’s denial of Stoudamire’s request for a jury trial.
Judge Howard wrote the opinion for the panel; judges Pelander and Vasquez concurred.
Posted by azapp @ Thu, Aug 17, 2006
State v. Hampton (08/15/06): Arizona Supreme Court Upholds Convictions and Death Penalty For Phoenix Man Who Murdered a Man, Woman, and Unborn Child
A jury convicted Tracy Allen Hampton in 2002 of two counts of first degree murder and one count of manslaughter for the murders of a man, a pregnant woman, and her unborn child. Following the decision in Ring v. Arizona, 536 U.S. 584 (2002), the State convened a new jury for sentencing purposes. That jury found that the death penalty was warranted for each of the two counts of first degree murder. On direct appeal, the Arizona Supreme Court upheld the convictions and sentences. The Court determined that, despite substantial mitigating evidence regarding Hampton’s “horrendous childhood” and mental health struggles, and despite the Court’s decision that it would not consider the “especially heinous or depraved” aggravating circumstance because the jury was improperly instructed as to that aggravator, the remaining aggravating circumstance—multiple homicides—was entitled to “extraordinary weight” and, therefore, the mitigation evidence was not sufficiently substantial to call for leniency.
Justice Hurwitz wrote the opinion for the unanimous Court.
A jury convicted Tracy Allen Hampton in 2002 of two counts of first degree murder and one count of manslaughter for the murders of a man, a pregnant woman, and her unborn child. Following the decision in Ring v. Arizona, 536 U.S. 584 (2002), the State convened a new jury for sentencing purposes. That jury found that the death penalty was warranted for each of the two counts of first degree murder. On direct appeal, the Arizona Supreme Court upheld the convictions and sentences. The Court determined that, despite substantial mitigating evidence regarding Hampton’s “horrendous childhood” and mental health struggles, and despite the Court’s decision that it would not consider the “especially heinous or depraved” aggravating circumstance because the jury was improperly instructed as to that aggravator, the remaining aggravating circumstance—multiple homicides—was entitled to “extraordinary weight” and, therefore, the mitigation evidence was not sufficiently substantial to call for leniency.
Justice Hurwitz wrote the opinion for the unanimous Court.
Posted by azapp @ Thu, Aug 17, 2006
Wednesday, August 16, 2006
Gamez v. Industrial Commission of Arizona (08/10/06): Division One Upholds Administrative Law Judge’s Award Denying Workers’ Compensation Benefits.
Jose Luis Gonzalez Gamez, an undocumented immigrant, suffered an injury to his lower back while working under a false name and social security number as a finisher for a furniture company. After initially accepting Gamez’ claim for workers’ compensation and providing temporary compensation and medical benefits, the State Compensation Fund (“SCF”) issued a notice of claim status terminating medical benefits and temporary compensation without permanent disability. Gamez requested a hearing to protest that decision, claiming that he was in fact permanently disabled. During the hearing, Gamez and SCF each presented medical experts whose testimony and opinions conflicted. Ultimately, the ALJ accepted the opinions of SCF’s medical expert as being more credible and held that Gamez was not permanently disabled. The Court of Appeals upheld this determination stating that the Court would not disturb an ALJ’s resolution of conflicting medical evidence unless it is “wholly unreasonable.” Because the ALJ’s decision in this case was not unfounded, the Court of Appeals affirmed.
In a lengthy concurring opinion, Judge Barker agreed that the award denying benefits should be affirmed, but argued that the Court of Appeals should have ruled on the issue of whether undocumented immigrants are entitled to worker’s compensation benefits under the Arizona Workers’ Compensation Act (“the Act”). Ariz. Rev. Stat. (“A.R.S.”) § 23-901(6)(b). According to Judge Barker, the underlying issue of whether illegal immigrants qualify for coverage under the Act had been fully briefed by the parties and amicus. Moreover, because the Industrial Commission confirmed in its briefing that it treats illegal aliens as “employees” under the Act, the issue is a matter of significant public importance and likely to recur. Turning to the merits of the question, Judge Barker argued that under the principles of statutory construction, an undocumented immigrant is not an “employee” within the meaning of ARS § 23-901(6)(b), and therefore Gamez is not entitled to benefits under the Act.
Judge Ehrlich wrote the opinion and was joined by Judge Portley; Judge Barker concurred separately.
Jose Luis Gonzalez Gamez, an undocumented immigrant, suffered an injury to his lower back while working under a false name and social security number as a finisher for a furniture company. After initially accepting Gamez’ claim for workers’ compensation and providing temporary compensation and medical benefits, the State Compensation Fund (“SCF”) issued a notice of claim status terminating medical benefits and temporary compensation without permanent disability. Gamez requested a hearing to protest that decision, claiming that he was in fact permanently disabled. During the hearing, Gamez and SCF each presented medical experts whose testimony and opinions conflicted. Ultimately, the ALJ accepted the opinions of SCF’s medical expert as being more credible and held that Gamez was not permanently disabled. The Court of Appeals upheld this determination stating that the Court would not disturb an ALJ’s resolution of conflicting medical evidence unless it is “wholly unreasonable.” Because the ALJ’s decision in this case was not unfounded, the Court of Appeals affirmed.
In a lengthy concurring opinion, Judge Barker agreed that the award denying benefits should be affirmed, but argued that the Court of Appeals should have ruled on the issue of whether undocumented immigrants are entitled to worker’s compensation benefits under the Arizona Workers’ Compensation Act (“the Act”). Ariz. Rev. Stat. (“A.R.S.”) § 23-901(6)(b). According to Judge Barker, the underlying issue of whether illegal immigrants qualify for coverage under the Act had been fully briefed by the parties and amicus. Moreover, because the Industrial Commission confirmed in its briefing that it treats illegal aliens as “employees” under the Act, the issue is a matter of significant public importance and likely to recur. Turning to the merits of the question, Judge Barker argued that under the principles of statutory construction, an undocumented immigrant is not an “employee” within the meaning of ARS § 23-901(6)(b), and therefore Gamez is not entitled to benefits under the Act.
Judge Ehrlich wrote the opinion and was joined by Judge Portley; Judge Barker concurred separately.
Posted by azapp @ Wed, Aug 16, 2006
Governor Appoints Osborn Maledon Attorney Diane Johnsen to Court of Appeals.
http://www.kold.com/Global/story.asp?S=5274562
http://www.kold.com/Global/story.asp?S=5274562
Posted by azapp @ Wed, Aug 16, 2006
Gilbert v. Maricopa County (08/15/06): Division One Panel Upholds Unconstitutionality of House Bill 2145
When Rural Metro, a private provider of fire and emergency response services, advised the county island residents in the Town of Gilbert that it would discontinue its services, the Arizona Legislature enacted HB 2145. The legislation creates a process for county island residents to create a county island fire district to obtain fire and emergency services. In short, a county island with a population of at least 100,000 that is located in a 911 service provider district with a population of between 395,000 and 500,000, can file a petition to create a county island fire district. The creation of this district permits the newly-formed district to hire a private company to fire protection and emergency medical services, but if the newly-formed district is unable to secure those services, the legislation requires that the adjoining municipality provide them.
After the county island residents filed a petition to create a fire district, Gilbert sued for injunctive and declaratory relief, claiming that the legislation violates Arizona's constitutional prohibition against special laws. Arizona Const., Art. 4, Pt. 2, Sec. 19. After first finding that Gilbert had standing to challenge the legislation and that the matter was ripe for adjudication, the trial court agreed that the legislation was an unconstitutional special law. The court of appeals agreed, analyzing the legislation under Long v. Napolitano, 203 Ariz. 247, 53 P.3d 172 (App. 2002). Under Long, a law is general if the classification at issue is rationally related to a legitimate government interest, the classification is legitimate, and the class is elastic. Though the court agreed that the legislation was rationally related to the government's legitimate interest in ensuring that county island residents receive fire and emergency services, the court determined that the legislation failed Long's second and third prong. First, no party disputed that the legislation only applied to county islands within Gilbert. Given the other county island areas within Maricopa county without fire and emergency services, there was no a rational reason for limiting the application of the legislation to Gilbert. Second, though the population criteria was not, on its face, inelastic, practically speaking, only four towns in Arizona with county islands have a real possibility of reaching the requisite population (100,000) within twenty years -- but none of those towns meet the other criteria for the legislation's application. Only the Town of Buckeye could theoretically meet all the criteria -- but not until 2025. With such a remote possibility of only one other entity entering the class within the next twenty years, the legislation failed the third prong. Thus, the legislation was unconstitutional.
Presiding Judge Portley authored the opinion in which Judges Winthrop and Ehrlich concurred.
When Rural Metro, a private provider of fire and emergency response services, advised the county island residents in the Town of Gilbert that it would discontinue its services, the Arizona Legislature enacted HB 2145. The legislation creates a process for county island residents to create a county island fire district to obtain fire and emergency services. In short, a county island with a population of at least 100,000 that is located in a 911 service provider district with a population of between 395,000 and 500,000, can file a petition to create a county island fire district. The creation of this district permits the newly-formed district to hire a private company to fire protection and emergency medical services, but if the newly-formed district is unable to secure those services, the legislation requires that the adjoining municipality provide them.
After the county island residents filed a petition to create a fire district, Gilbert sued for injunctive and declaratory relief, claiming that the legislation violates Arizona's constitutional prohibition against special laws. Arizona Const., Art. 4, Pt. 2, Sec. 19. After first finding that Gilbert had standing to challenge the legislation and that the matter was ripe for adjudication, the trial court agreed that the legislation was an unconstitutional special law. The court of appeals agreed, analyzing the legislation under Long v. Napolitano, 203 Ariz. 247, 53 P.3d 172 (App. 2002). Under Long, a law is general if the classification at issue is rationally related to a legitimate government interest, the classification is legitimate, and the class is elastic. Though the court agreed that the legislation was rationally related to the government's legitimate interest in ensuring that county island residents receive fire and emergency services, the court determined that the legislation failed Long's second and third prong. First, no party disputed that the legislation only applied to county islands within Gilbert. Given the other county island areas within Maricopa county without fire and emergency services, there was no a rational reason for limiting the application of the legislation to Gilbert. Second, though the population criteria was not, on its face, inelastic, practically speaking, only four towns in Arizona with county islands have a real possibility of reaching the requisite population (100,000) within twenty years -- but none of those towns meet the other criteria for the legislation's application. Only the Town of Buckeye could theoretically meet all the criteria -- but not until 2025. With such a remote possibility of only one other entity entering the class within the next twenty years, the legislation failed the third prong. Thus, the legislation was unconstitutional.
Presiding Judge Portley authored the opinion in which Judges Winthrop and Ehrlich concurred.
Posted by azapp @ Wed, Aug 16, 2006
Tuesday, August 15, 2006
Klebba v. Carpenter (08/09/06): Supreme Court Dismisses Election Case for Lack of Jurisdiction Because Party Challenging Petitions Failed to Timely Obtain a Signed Order
Kay Klebba filed an action, alleging that candidate Ted Carpenter had improperly verified a petition. After an evidentiary hearing, the trial court invalidated all signatures on the single petition, but refused to disqualify all other petitions submitted by Carpenter, finding that he had not committed “petition forgery.” The trial judge announced his decision in open court on July 6, 2006; an unsigned minute entry was entered on July 10; and Klebba filed notice of appeal on July 13.
Carpenter argued that the appeal was untimely under A.R.S. § 16-351(A), which requires that a “notice of appeal be filed within five days after the decision of the superior court,” because the appeal was filed more than five days after the court announced the decision. Klebba argued that Rule 58(a) required all judgments be in writing and signed by a judge, and because no signed order had been entered by the trial court, asked that the court entertain the appeal on the merits even though it had been prematurely filed. The court agreed that Rule 58(a) requires that the decision be in writing, signed by the court, and entered before an appeal can be taken. Nevertheless, the court refused to suspend the appeal to allow entry of the requisite signed order because such an approach would be inconsistent with the expedited time frames of elections statutes. The court found that Section 16-351(a) places the burden to obtain a written and signed decision within the statutory period on the party challenging the nominating petitions. The court found that the lack of a signed order made it impossible for the court to exercise appellate review in a timely fashion and therefore dismissed the appeal for lack of jurisdiction.
Justice Hurwitz authored the opinion; Justices McGregor and Bales concurred.
Kay Klebba filed an action, alleging that candidate Ted Carpenter had improperly verified a petition. After an evidentiary hearing, the trial court invalidated all signatures on the single petition, but refused to disqualify all other petitions submitted by Carpenter, finding that he had not committed “petition forgery.” The trial judge announced his decision in open court on July 6, 2006; an unsigned minute entry was entered on July 10; and Klebba filed notice of appeal on July 13.
Carpenter argued that the appeal was untimely under A.R.S. § 16-351(A), which requires that a “notice of appeal be filed within five days after the decision of the superior court,” because the appeal was filed more than five days after the court announced the decision. Klebba argued that Rule 58(a) required all judgments be in writing and signed by a judge, and because no signed order had been entered by the trial court, asked that the court entertain the appeal on the merits even though it had been prematurely filed. The court agreed that Rule 58(a) requires that the decision be in writing, signed by the court, and entered before an appeal can be taken. Nevertheless, the court refused to suspend the appeal to allow entry of the requisite signed order because such an approach would be inconsistent with the expedited time frames of elections statutes. The court found that Section 16-351(a) places the burden to obtain a written and signed decision within the statutory period on the party challenging the nominating petitions. The court found that the lack of a signed order made it impossible for the court to exercise appellate review in a timely fashion and therefore dismissed the appeal for lack of jurisdiction.
Justice Hurwitz authored the opinion; Justices McGregor and Bales concurred.
Posted by azapp @ Tue, Aug 15, 2006
State v. Roque (08/14/06): Upon Independent Review, Supreme Court Reduces Death Sentence to Natural Life Without Possibility of Release
In September 2003, Frank Silva Roque was found guilty of first degree murder, attempted first degree murder, reckless endangerment, and three counts of drive-by shooting, all based on a September 15, 2001 shooting spree in which he targeted people of Arab descent. He was sentenced to death for the murder. Roque raised thirty issues on appeal, for most of which the court found no error.
Justice Berch, writing for a unanimous court, found that the State’s failure to fully and fairly disclose to the defense the results of a State’s expert’s assessment of Roque’s mental health, the critical issue in the case, violated Arizona Rule of Criminal Procedure 15.1(a)(3). The court found that Rule 15.1(a)(3) requires disclosure of an expert opinion even if the expert has not prepared a written report or statement. Nevertheless, because the defense refused to accept the trial court’s sanction (a short continuance), the court could not conclude that the trial court’s failure to preclude the expert testimony constituted reversible error. The court also identified two other instances of prosecutorial misconduct, including injection of the prosecutor’s opinion of the validity of a psychiatric test and harassment of an expert witness. The court found that none of these incidents of misconduct were individually reversible and further found that the cumulative effect of these three incidents of misconduct did not warrant reversal.
Because Roque’s crimes were committed before August 1, 2002, the court independently reviewed the aggravating circumstances and the mitigating evidence to assess the propriety of imposing the death sentence. The court found that the (F)(3) aggravating factor was proven beyond a reasonable doubt, but gave substantial weight to the mitigating evidence showing an impaired mental condition and a low IQ. Taken as a whole, the court found that the mitigating evidence raised a substantial question as to whether death was an appropriate sentence and reduced the sentence to natural life with no chance of release.
Justice Berch authored the opinion; Justices McGregor, Hurwitz and Bales and Judge Barker concurred.
In September 2003, Frank Silva Roque was found guilty of first degree murder, attempted first degree murder, reckless endangerment, and three counts of drive-by shooting, all based on a September 15, 2001 shooting spree in which he targeted people of Arab descent. He was sentenced to death for the murder. Roque raised thirty issues on appeal, for most of which the court found no error.
Justice Berch, writing for a unanimous court, found that the State’s failure to fully and fairly disclose to the defense the results of a State’s expert’s assessment of Roque’s mental health, the critical issue in the case, violated Arizona Rule of Criminal Procedure 15.1(a)(3). The court found that Rule 15.1(a)(3) requires disclosure of an expert opinion even if the expert has not prepared a written report or statement. Nevertheless, because the defense refused to accept the trial court’s sanction (a short continuance), the court could not conclude that the trial court’s failure to preclude the expert testimony constituted reversible error. The court also identified two other instances of prosecutorial misconduct, including injection of the prosecutor’s opinion of the validity of a psychiatric test and harassment of an expert witness. The court found that none of these incidents of misconduct were individually reversible and further found that the cumulative effect of these three incidents of misconduct did not warrant reversal.
Because Roque’s crimes were committed before August 1, 2002, the court independently reviewed the aggravating circumstances and the mitigating evidence to assess the propriety of imposing the death sentence. The court found that the (F)(3) aggravating factor was proven beyond a reasonable doubt, but gave substantial weight to the mitigating evidence showing an impaired mental condition and a low IQ. Taken as a whole, the court found that the mitigating evidence raised a substantial question as to whether death was an appropriate sentence and reduced the sentence to natural life with no chance of release.
Justice Berch authored the opinion; Justices McGregor, Hurwitz and Bales and Judge Barker concurred.
Posted by azapp @ Tue, Aug 15, 2006
Monday, August 14, 2006
Supreme Court Affirms Capital Sentence in State v. McGill (08/14/06):
McGill was convicted in a jury trial of murder, arson, and endangerment stemming from a 2002 fire he set which claimed the life of Charles Perez and seriously injured others in the duplex. In this direct appeal, the Supreme Court first affirmed the trial court's decision to excuse for cause one of the veniremen who indicated during voir dire that she believed she could impose the death sentence if required by law, but that doing so would cause her to fear retribution by God. The Court then affirmed the jury verdict of guilty on endangerment charges, reasoning that because McGill knew of other people in the home when he set it afire, he "knew his actions would create a danger for those inside."
Sustaining the finding of aggravation, the Court held that the jury's finding of the "F.3" aggravator was proper because McGill was aware of the presence of bystanders and knew that his actions would put them at grave risk of death. The Court also upheld the trial court's decision to admit photographs of Perez's charred remains into evidence at trial and during the aggravation phase. The Court reasoned that the probative value of the photos was not outweighed by their prejudicial value when considering that graphic testimony about the condition of the remains both preceded and accompanied the admission of the photos. The Court noted that the pictures did not likely add much to any shock experienced by the jurors.
Chief Justics McGregor's opinion for the Court was unanimous as to each of the above findings.
In perhaps the most significant portion of the opinion, the Court held that the admission, at the penalty phase, of testimony that was not subject to cross examination did not violate McGill's 6th Amendment confrontation clause rights. At the penalty phase, the state introduced deposition testimony of a jailhouse informant who had died before trial. The deposition was taken without defense counsel being present. In the deposition, the informant told the state that while in the Maricopa County Jail, McGill had solicited the informant to kill a potential witness. The testimony was introduced to rebut McGill's mitigation testimony, over the objection of defense counsel. Relying on Williams v. New York, 337 U.S. 241 (1949) the Court held that the Confrontation Clause's protections do not apply to rebuttal testimony at a sentencing hearing because: "1) the penalty phase is not a criminal prosecution, 2) historical practices support the use of out of court statements in sentencing, and 3) the sentencing body requires complete information to make its determination." The Court further noted that so long as proffered tesimony has sufficient indicia of reliablitiy, its admission without cross-examination does not offend Due Process.
As to the 6th amendment holding, Justice Hurwitz dissented. He first noted that many courts have held that Williams does not resolve the issue of the application of the Confrontation Clause at the penalty phase. He then noted that the Court's previous decisions in the area are inconsistent and provide no conclusive guidance. Addressing the merits of the 6th Amendment issue, Justice Hurwitz posited that the question is whether the Constitution's Framers would have expected testimonial hearsay to influence whether a defendant should live or die. Answering in the negative after a review of historical commentary and precedent, Justice Hurwitz would have remanded for a new penalty phase.
McGill was convicted in a jury trial of murder, arson, and endangerment stemming from a 2002 fire he set which claimed the life of Charles Perez and seriously injured others in the duplex. In this direct appeal, the Supreme Court first affirmed the trial court's decision to excuse for cause one of the veniremen who indicated during voir dire that she believed she could impose the death sentence if required by law, but that doing so would cause her to fear retribution by God. The Court then affirmed the jury verdict of guilty on endangerment charges, reasoning that because McGill knew of other people in the home when he set it afire, he "knew his actions would create a danger for those inside."
Sustaining the finding of aggravation, the Court held that the jury's finding of the "F.3" aggravator was proper because McGill was aware of the presence of bystanders and knew that his actions would put them at grave risk of death. The Court also upheld the trial court's decision to admit photographs of Perez's charred remains into evidence at trial and during the aggravation phase. The Court reasoned that the probative value of the photos was not outweighed by their prejudicial value when considering that graphic testimony about the condition of the remains both preceded and accompanied the admission of the photos. The Court noted that the pictures did not likely add much to any shock experienced by the jurors.
Chief Justics McGregor's opinion for the Court was unanimous as to each of the above findings.
In perhaps the most significant portion of the opinion, the Court held that the admission, at the penalty phase, of testimony that was not subject to cross examination did not violate McGill's 6th Amendment confrontation clause rights. At the penalty phase, the state introduced deposition testimony of a jailhouse informant who had died before trial. The deposition was taken without defense counsel being present. In the deposition, the informant told the state that while in the Maricopa County Jail, McGill had solicited the informant to kill a potential witness. The testimony was introduced to rebut McGill's mitigation testimony, over the objection of defense counsel. Relying on Williams v. New York, 337 U.S. 241 (1949) the Court held that the Confrontation Clause's protections do not apply to rebuttal testimony at a sentencing hearing because: "1) the penalty phase is not a criminal prosecution, 2) historical practices support the use of out of court statements in sentencing, and 3) the sentencing body requires complete information to make its determination." The Court further noted that so long as proffered tesimony has sufficient indicia of reliablitiy, its admission without cross-examination does not offend Due Process.
As to the 6th amendment holding, Justice Hurwitz dissented. He first noted that many courts have held that Williams does not resolve the issue of the application of the Confrontation Clause at the penalty phase. He then noted that the Court's previous decisions in the area are inconsistent and provide no conclusive guidance. Addressing the merits of the 6th Amendment issue, Justice Hurwitz posited that the question is whether the Constitution's Framers would have expected testimonial hearsay to influence whether a defendant should live or die. Answering in the negative after a review of historical commentary and precedent, Justice Hurwitz would have remanded for a new penalty phase.
Posted by azapp @ Mon, Aug 14, 2006
State v. Ellison 08/09/06: Arizona Supreme Court Upholds Murder Conviction and Death Penalty
Charles David Ellison was convicted in 2002 of first-degree murder and burglary. The conviction stemmed from the burglary of a home in Kingman and the death by strangulation of the two elderly residents. A sentencing jury recommended the death penalty in 2004. On direct appeal, the Arizona Supreme Court held that the trial court did not err in admitting Ellison’s confession, because it was not made in violation of Miranda and was voluntary; that the defendant failed to show bias or prejudice that would have required the trial judge’s disqualification; that the trial judge did not abuse his discretion in any evidentiary rulings; that the trial judge did not err in his reasonable doubt instruction; that the trial judge did not err in denying Ellison’s motion for acquittal, and in so holding, that duress is not a defense to accomplice liability for murder; that there were no sentencing errors; and that six aggravating factors were proven and that the mitigation evidence was not sufficiently substantial to warrant leniency.
Justice Bales wrote the opinion for a unanimous court.
Charles David Ellison was convicted in 2002 of first-degree murder and burglary. The conviction stemmed from the burglary of a home in Kingman and the death by strangulation of the two elderly residents. A sentencing jury recommended the death penalty in 2004. On direct appeal, the Arizona Supreme Court held that the trial court did not err in admitting Ellison’s confession, because it was not made in violation of Miranda and was voluntary; that the defendant failed to show bias or prejudice that would have required the trial judge’s disqualification; that the trial judge did not abuse his discretion in any evidentiary rulings; that the trial judge did not err in his reasonable doubt instruction; that the trial judge did not err in denying Ellison’s motion for acquittal, and in so holding, that duress is not a defense to accomplice liability for murder; that there were no sentencing errors; and that six aggravating factors were proven and that the mitigation evidence was not sufficiently substantial to warrant leniency.
Justice Bales wrote the opinion for a unanimous court.
Posted by azapp @ Mon, Aug 14, 2006
Thursday, August 10, 2006
State v. Munninger (08/08/06): A Divided Panel of Division One Affirms Aggravated Sentence Imposed Without Jury Finding of Any Aggravating Factors
A jury convicted the defendant of aggravated assault; the trial court imposed an aggravated and enhanced sentence. After appeals attacking the lack of jury findings of the aggravating facts upon which the sentence was imposed, the Arizona Supreme Court remanded to the Court of Appeals for reconsideration in light of State v. Martinez, 210 Ariz. 578 (2005) and State v. Henderson, 210 Ariz. 561 (2005). On remand, the Court of Appeals affirmed the sentence. Because the defendant did not object at trial to the lack of jury findings of aggravating facts, the court reviewed only for fundamental error and held that the defendant could not satisfy his burden to show prejudice. And, because the finding of one aggravator, extraordinary harm to the victim, was “indisputable” there was no fundamental error in imposing an aggravated sentence even though the judge, in sentencing, also found and considered two other aggravating facts. In dissent, Judge Lankford said the proper question should be, not whether one aggravating factor was enough to expose the defendant to the range of sentence imposed, but instead whether the same sentence would have been imposed had the jury found only one aggravator, as compared to the three aggravators considered at sentencing. Given that judges rarely, if ever, pronounce hypothetical sentences regarding what punishment they would have imposed on the basis of a finding of any possible subset of the specific aggravators considered, the majority’s decision renders Blakely error almost never remediable, because the defendant cannot prove that the sentence would have been different had the judge not considered the aggravators that were not found by the jury. “But,” Lankford wrote, “it surely is not harmless for a defendant to be sentenced to a greater sentence than the facts justify.”
Judge Irvine wrote the opinion and was joined by Judge Norris; Judge Lankford dissented.
A jury convicted the defendant of aggravated assault; the trial court imposed an aggravated and enhanced sentence. After appeals attacking the lack of jury findings of the aggravating facts upon which the sentence was imposed, the Arizona Supreme Court remanded to the Court of Appeals for reconsideration in light of State v. Martinez, 210 Ariz. 578 (2005) and State v. Henderson, 210 Ariz. 561 (2005). On remand, the Court of Appeals affirmed the sentence. Because the defendant did not object at trial to the lack of jury findings of aggravating facts, the court reviewed only for fundamental error and held that the defendant could not satisfy his burden to show prejudice. And, because the finding of one aggravator, extraordinary harm to the victim, was “indisputable” there was no fundamental error in imposing an aggravated sentence even though the judge, in sentencing, also found and considered two other aggravating facts. In dissent, Judge Lankford said the proper question should be, not whether one aggravating factor was enough to expose the defendant to the range of sentence imposed, but instead whether the same sentence would have been imposed had the jury found only one aggravator, as compared to the three aggravators considered at sentencing. Given that judges rarely, if ever, pronounce hypothetical sentences regarding what punishment they would have imposed on the basis of a finding of any possible subset of the specific aggravators considered, the majority’s decision renders Blakely error almost never remediable, because the defendant cannot prove that the sentence would have been different had the judge not considered the aggravators that were not found by the jury. “But,” Lankford wrote, “it surely is not harmless for a defendant to be sentenced to a greater sentence than the facts justify.”
Judge Irvine wrote the opinion and was joined by Judge Norris; Judge Lankford dissented.
Posted by azapp @ Thu, Aug 10, 2006
Monday, August 7, 2006
Austin Shea (Ariz.) 7th Street & Van Buren, L.L.C. v. City of Phoenix (08/03/06): Division One Holds That The Superior Court Improperly Concluded That The City Of Phoenix Board Of Adjustment Abused Its Discretion By Rehearing And Reversing Its Decision That Plaintiff’s “Media Sculpture” Proposal Did Not Violate The Zoning Ordinance.
Austin Shea (Arizona) 7th Street and Van Buren, L.L.C. (“Shea”), “proposed building a two-story 900 square foot glass structure that would house a television broadcast station and four video screens, each 16’ x 12’, set back at least 6’1” from the structure’s inside windows.” In Shea’s area, however, “Section 705.2(A)(7)(d) (2005) of the Phoenix Zoning Ordinance prohibits ‘outdoor advertising’ structures . . . .” After Shea revised the proposal several times, the City of Phoenix Board of Adjustment eventually approved the proposal. Phoenix asked the Board to reconsider on the basis of “manifest error” in its conclusion. City of Phoenix Zoning Ordinance § 303(C)(3). The Board voted to rehear the appeal and ultimately disapproved of Shea’s proposal. The Superior Court reversed the Board’s decision because it concluded that the Board could rehear its earlier decision only on the basis of manifest error and no error had occurred. Phoenix appealed.
The Arizona Court of Appeals reversed and remanded the case back to the Superior Court. The Court of Appeals first defined manifest error as an error “evident and clear,” and noted that “[a]n error of law, fact, perception, consideration, reasoning, judgment, as well as procedure, may, depending on the facts and circumstances, constitute a manifest error.” The Court then noted that the Superior Court erred in reviewing for manifest error by looking only to the record of the second hearing (at which the Board decided to rehear Shea’s appeal); it should have looked at the record of both hearings. Had it done so, it would have seen that the Board’s initial conclusion “failed to consider all of the relevant provisions of § 705 of the Zoning Ordinance and other ‘logical factual scenarios’ . . . .” Therefore, credible evidence supported the Board’s decision to rehear the appeal on the basis of manifest error in its conclusion to approve Shea’s proposal. The Board did not need to describe the manifest error explicitly.
Judge Norris authored the unanimous opinion.
Austin Shea (Arizona) 7th Street and Van Buren, L.L.C. (“Shea”), “proposed building a two-story 900 square foot glass structure that would house a television broadcast station and four video screens, each 16’ x 12’, set back at least 6’1” from the structure’s inside windows.” In Shea’s area, however, “Section 705.2(A)(7)(d) (2005) of the Phoenix Zoning Ordinance prohibits ‘outdoor advertising’ structures . . . .” After Shea revised the proposal several times, the City of Phoenix Board of Adjustment eventually approved the proposal. Phoenix asked the Board to reconsider on the basis of “manifest error” in its conclusion. City of Phoenix Zoning Ordinance § 303(C)(3). The Board voted to rehear the appeal and ultimately disapproved of Shea’s proposal. The Superior Court reversed the Board’s decision because it concluded that the Board could rehear its earlier decision only on the basis of manifest error and no error had occurred. Phoenix appealed.
The Arizona Court of Appeals reversed and remanded the case back to the Superior Court. The Court of Appeals first defined manifest error as an error “evident and clear,” and noted that “[a]n error of law, fact, perception, consideration, reasoning, judgment, as well as procedure, may, depending on the facts and circumstances, constitute a manifest error.” The Court then noted that the Superior Court erred in reviewing for manifest error by looking only to the record of the second hearing (at which the Board decided to rehear Shea’s appeal); it should have looked at the record of both hearings. Had it done so, it would have seen that the Board’s initial conclusion “failed to consider all of the relevant provisions of § 705 of the Zoning Ordinance and other ‘logical factual scenarios’ . . . .” Therefore, credible evidence supported the Board’s decision to rehear the appeal on the basis of manifest error in its conclusion to approve Shea’s proposal. The Board did not need to describe the manifest error explicitly.
Judge Norris authored the unanimous opinion.
Posted by azapp @ Mon, Aug 7, 2006
Friday, August 4, 2006
Short v. Petty (07/27/06): Division One Clarifies Apportionment Requirements of Ariz. R. Civ. P. 68
In this suit arising out of an auto accident, Defendant had made a Rule 68 offer of judgment for 100,000. Plaintiffs, husband and wife, rejected it and proceeded to trial on claims for loss of consortium, and injury as well as loss of consortium, respectively. The jury returned a verdict for Plaintiffs covering their "full damages" in the amount of $20,000. Defendants moved for Rule 68 sanctions which the Superior Court denied on the basis that the offer has been defective because it did not apportion damages between claims of the husband and those of the wife.
Reversing and remanding, Division One affirmed that although the general rule set forth in Duke v. Cochise County, 189 Ariz. 35 (App. 1996), requiring apportionment of offers of judgment to trigger Rule 68 sanctions still applies, exceptions exist beyond the one noted in Sheppard v. Crow-Barker-Paul No. 1 Ltd. P'ship, 192 Ariz. 539, 549 (App 1998).
Writing for a unanimous panel, Judge Barker noted that trial judges considering a Rule 68 motion must consider the facts and circumstances of the case to determine "whether a joint, unapportioned offer" when compared with the judgment finally obtained, "provided the offerees with the ability to make a meaningful choice between accepting or rejecting the offer and going forward with the litigation." The Court held that because the judgment obtained by Short was unapportioned, as was the initial offer, and because the plaintiffs shared counsel and a unity of interest, the parties were able to make such a choice and thus the Rule 68 offer was valid.
The Court remanded for further proceedings.
In this suit arising out of an auto accident, Defendant had made a Rule 68 offer of judgment for 100,000. Plaintiffs, husband and wife, rejected it and proceeded to trial on claims for loss of consortium, and injury as well as loss of consortium, respectively. The jury returned a verdict for Plaintiffs covering their "full damages" in the amount of $20,000. Defendants moved for Rule 68 sanctions which the Superior Court denied on the basis that the offer has been defective because it did not apportion damages between claims of the husband and those of the wife.
Reversing and remanding, Division One affirmed that although the general rule set forth in Duke v. Cochise County, 189 Ariz. 35 (App. 1996), requiring apportionment of offers of judgment to trigger Rule 68 sanctions still applies, exceptions exist beyond the one noted in Sheppard v. Crow-Barker-Paul No. 1 Ltd. P'ship, 192 Ariz. 539, 549 (App 1998).
Writing for a unanimous panel, Judge Barker noted that trial judges considering a Rule 68 motion must consider the facts and circumstances of the case to determine "whether a joint, unapportioned offer" when compared with the judgment finally obtained, "provided the offerees with the ability to make a meaningful choice between accepting or rejecting the offer and going forward with the litigation." The Court held that because the judgment obtained by Short was unapportioned, as was the initial offer, and because the plaintiffs shared counsel and a unity of interest, the parties were able to make such a choice and thus the Rule 68 offer was valid.
The Court remanded for further proceedings.
Posted by azapp @ Fri, Aug 4, 2006
Tuesday, August 1, 2006
Bolser Enterprises v. Arizona Registrar of Contractors (07/25/06): Division One Holds That a Contractor May Appeal the Registrar of Contractors’ Disciplinary Notice Revoking the Contractor’s License Even Though the Contractor Had Not Appealed Certain Underlying Orders That Prompted the Loss of License
On June 3 and June 4, 2004, the Registrar of Contractors (“ROC”) issued orders in two cases stating that the contractor, Bolser Enterprises, would lose its license unless it promptly corrected certain errors in a workmanlike manner. Rather than appeal these orders, Bolser attempted to complete the work. After determining that the work had not been completed in a workmanlike manner, the ROC notified the parties on January 27 by form letter of its decision to revoke Bolser’s license effective that day “in compliance with the [prior] Decision and Order[s].” Bolser promptly filed a complaint in Superior Court appealing the ROC’s disciplinary decision in both cases. The Superior Court dismissed the complaint finding that it was defective because Bolser had not appealed from the June 3 and June 4 orders. The Court of Appeals reversed, and held that the January 27 disciplinary notice was a “final administrative decision” subject to judicial review. The Court explained the notice reflects the determination that Bolser did not adequately perform the corrective work described in the June 3 and June 4 orders. The Court noted that although the Superior Court lacked subject matter jurisdiction to review the June 3 and June 4 orders (since they had not been timely appealed), the later determination that license revocation remained in order because Bolser had failed to adequately perform the corrective work could be reviewed. The Court rejected the homeowners’ argument that a hearing was required for the notice to constitute a final order, and further rejected the argument that the decision was not a final administrative decision because the ROC did not post it in the form of an “order.”
Judge Timmer authored the decision. Judges Lankford and Snow concurred.
On June 3 and June 4, 2004, the Registrar of Contractors (“ROC”) issued orders in two cases stating that the contractor, Bolser Enterprises, would lose its license unless it promptly corrected certain errors in a workmanlike manner. Rather than appeal these orders, Bolser attempted to complete the work. After determining that the work had not been completed in a workmanlike manner, the ROC notified the parties on January 27 by form letter of its decision to revoke Bolser’s license effective that day “in compliance with the [prior] Decision and Order[s].” Bolser promptly filed a complaint in Superior Court appealing the ROC’s disciplinary decision in both cases. The Superior Court dismissed the complaint finding that it was defective because Bolser had not appealed from the June 3 and June 4 orders. The Court of Appeals reversed, and held that the January 27 disciplinary notice was a “final administrative decision” subject to judicial review. The Court explained the notice reflects the determination that Bolser did not adequately perform the corrective work described in the June 3 and June 4 orders. The Court noted that although the Superior Court lacked subject matter jurisdiction to review the June 3 and June 4 orders (since they had not been timely appealed), the later determination that license revocation remained in order because Bolser had failed to adequately perform the corrective work could be reviewed. The Court rejected the homeowners’ argument that a hearing was required for the notice to constitute a final order, and further rejected the argument that the decision was not a final administrative decision because the ROC did not post it in the form of an “order.”
Judge Timmer authored the decision. Judges Lankford and Snow concurred.
Posted by azapp @ Tue, Aug 1, 2006
