AZAPP Blog

State Farm Fire & Casualty Ins. Co. v. Grabowski (1/30/07): Division One Finds Jury Instructions on Doctrine of Reasonable Expectations Must Include Requirement That Insurer Have Reason to Believe Insured Would Not Have Agreed to Challenged Policy Provision

A husband and wife were killed in a single-vehicle automobile crash. Plaintiff, the mother of the deceased wife, sued the estate of the deceased husband, asserting a claim for wrongful death. The husband’s automobile insurer denied coverage and sought a declaration of non-coverage under its umbrella policy exclusion for claims arising out of bodily injury to a named insured. Plaintiff claimed that the exclusion was unenforceable under the doctrine of reasonable expectations. On remand from a prior appeal, the issue of reasonable expectations was tried to a jury, which found that the doctrine prevented enforcement of the exclusion under the circumstances. The insurer appealed, claiming that the jury had been improperly instructed regarding the elements of the reasonable expectations doctrine.

On appeal, the Court of Appeals reversed the jury verdict, agreeing with Plaintiff that the jury instructions were flawed. The doctrine of reasonable expectations renders unenforceable certain provisions of standard form agreements when a party to the contract has reason to know that the other party would not have signed the contract had he known that it contained the particular provision. Because the jury instructions given by the trial court failed to require the jury to find that the insurer had reason to know that the insured would not have agreed to the exclusion in question, it was not certain whether the jury would have made that requisite finding. The court remanded for a new trial.

Presiding Judge Timmer wrote the opinion for the unanimous panel; Judges Norris and Johnsen concurred.

NEWS COVERAGE: A recent article in the Arizona Capitol Times discusses the Arizona Court of Appeals decision involving pregnant inmates seeking abortions.

NEWS COVERAGE: A recent article in the Arizona Republic discusses the Arizona Court of Appeals decision that holds a city can't condemn land for park purposes outside the city limits.

Doe v. Arpaio (1/23/07): County Sheriff's Refusal to Transport Inmate Seeking Abortion Without a Court Order Is Not Reasonably Related to County's Stated Penological Interests

Jane Doe was pregnant when she was taken into custody by the County. During her four month stay in the County Jail, she repeated requested that she be permitted to terminate her pregnancy. Consistent with the County's unwritten policy that prohibits transportation of inmates off-site for elective medical procedures, Doe's request was refused until she could secure a court order directing the County to transport her off-site for the procedure. It took Doe seven weeks to obtain the required court order. In conjunction with her request for an order, Doe filed a complaint seeking to have the county policy declared unconstitutional as violating her Fourteenth Amendment right to privacy and Eight Amendment right to adequate medical care.

On cross motions for summary judgment, the superior court ruled that the policy was unconstitutional because it constituted an "undue burden" on Doe's right to have an abortion and because it found the policy served no legitimate penological purpose. On appeal, the appellate court first wrestled with which test to apply, concluding first that the undue burden test was inapplicable under the many cases in which appropriate prison restrictions on constitutionally protected rights are upheld. The appellate court next evaluated the policy under the four-part test developed in Turner v. Safley, 482 U.S. 78 (1987), concluding that the policy served no reasonable penological interest that might justify the burden on an inmate's constitutional right. The court was troubled that (i) the policy did not further the County's security concerns, given the numerous transports the County provides to inmates and its failure to object on security grounds to Doe's request for transport; (ii) the policy did not conserve County resources, given that the County requires that inmates reimburse it for transportation and security costs incurred when an inmate seeks an elective medical procedure; (iii) County could identify no more than potential threats of vague or unknown liability that might justify its professed concern in avoiding liability; and (iv) the policy was not related to County's objective of avoiding a violation of the Arizona law that prohibits the expenditure of state funds for an abortion because the County requires the inmate to pay for the procedure. In short, the Court found the policy represented an "exaggerated response" to the County's proffered penological concerns.

Presiding Judge Irvine authored the opinion in which Judges Ehrlich and Downie concurred.

George Winn v. Plaza Healthcare (1/23/07):Supreme Court Holds That A Late-Appointed Personal Representative May Bring an Elder Abuse Claim On Behalf of A Deceased Victim’s Estate

Mary Winn died on February 6, 1998, after residing at a nursing facility operated by Plaza Healthcare. More than four and one-half years later, but still within the applicable limitations period, Mary’s husband, George Winn, brought an Adult Protective Services Act (“APSA”) claim against Plaza on behalf of himself and Mary’s estate. On May 7, 2005, more than five years after Mary’s death, George was appointed personal representative of her estate, and moved to substitute himself, in his capacity as the estate’s personal representative, as the Plaintiff in the case against Plaza.

Plaza moved for summary judgment, arguing that A.R.S. § 14-3108(4), a probate code provision, precludes a personal representative appointed more than two years after the death of the decedent from prosecuting claims on behalf of the estate. The superior court granted the motion and the court of appeals affirmed.

On de novo review, the Supreme Court reversed, holding that “a late-appointed personal representative may bring an APSA claim pursuant to § 46-455(B) on behalf of a deceased victim’s estate provided that the limitations period on the claim has not run.” In so holding, the Court compared two Arizona statutes to determine if they “are inconsistent, and if so, which controls.” Section 46-455 of APSA “is clear” that APSA claims “shall not be limited or affected by the death of the incapacitated or vulnerable adult,” A.R.S. § 46-455(P), or “by any other civil remedy . . . or any other provision of law.” A.R.S. § 46-455(O). However, a provision of the probate code, § 14-3108(4), arguably limits the power of a late-appointed personal representative to pursue an APSA claim on behalf of the deceased victim’s estate. That statute provides that a personal representative appointed to represent an estate more than two years after the decedent’s death “has no right to possess estate assets . . . beyond that necessary to confirm title thereto in the rightful successors of the estate.”

The Court noted that its primary task in interpreting statutes is to give effect to the intent of the legislature, by examining first the words of the statutes at issue, as well as the policies behind them and the evils that they were designed to remedy. The Court determined that the “plain wording” of the APSA made clear the legislature’s intent to increase the remedies available to elder abuse victims “by providing that APSA claims proceed unimpeded by either the death of the elder abuse victim or limitations imposed by other laws.” The policy underlying APSA likewise “is apparent: to protect some of society’s most vulnerable persons from abuse, neglect and exploitation.” And the evils sought to be remedied the Court also found “unmistakable.”

The Court relied heavily on a previous case in which it interpreted conflicting APSA and probate code provisions, In re Guardianship/Conservatorship of Denton, 190 Ariz. 152, 945 P.3d 1283 (1997). In Denton, the Court held that APSA pain and suffering damages may be recovered after the death of an elder abuse victim, contrary to a probate code provision finding that pain and suffering damages do not “survive the death of the person entitled thereto.” The Court in Denton relied on the same provisions of the APSA that the estate of Mary Winn relied on – A.R.S. § 46-455(O) and (P).

Justice Berch authored the opinion for a unanimous court.

Gipson v. Kasey (1/23/07): Supreme Court Holds Duty of Care Between Co-workers Created by Statutes Prohibiting Acts that Harmed One of Them

The Supreme Court today issued what seems poised to become an oft-cited ruling in Arizona tort law. Defendant Kasey and Plaintiff Gipson's son Followill were co-workers attending their company holiday party. Beer was served at the party, in addition to which Kasey brought his own whiskey and oxycodone (which was properly prescribed to him). On occasion before this party, Kasey had given out his prescribed oxycodone to colleagues for their recreational use. At the party, Watters, another co-worker, asked Kasey for one of his pills, and he gave her 8 of them, noting that the pills were of different strengths. On prior occasions, Kasey had refused, however, to give pills to Followill citing his stupidity and immaturity. Watters, whom Kasey knew to be dating Followill, subsequently gave her pills to Followill. He then took the pills, continued drinking, and died that night in his sleep of alcohol and drug-induced toxicity. Gipson, filed a wrongful death action action against Kasey for her son's death. The Superior Court granted summary judgment for Kasey but Division One reversed, holding that Kasey owed Followill a duty of care.

The Supreme Court granted review as to the duty of care issue and, in today's opinion by Justice Bales, agreed with Division One's conclusion but vacated its reasoning. The Supreme Court began by noting that the existence of a duty of care is a matter of law, while the satisfaction of that duty is a question of fact. The Court continued by stating that the existence of a duty is a threshold issue, and that in the absence of a duty no claim for negligence will lie.

In its analysis, the Court began by clarifying its admittedly confusing earlier opinions on the subject of foreseeability. The Court unequivocally held that foreseeability is NOT a factor to be considered by courts when determining the presence or absence of a duty. The Court, citing its prior decision in Martinez v. Woodmar IV Condominiums Homeowners Ass'n, 189 Ariz 206, 211 (1997), went on to explain that forseeability more properly applies to the factual issues of breach and causation, and is thus a matter within the province of the jury, not the court.

The Court next addressed the impact of the presence or absence of a special relationship between the parties in determining a duty. The Court noted that Division One erred in focusing on the relationship between Kasey and Followill in determining a duty here. While acknowledging that Arizona's common law recognizes certain relationships that give rise to a duty, the Court held that such a relationship is a sufficient but not a necessary condition for a duty to arise and that no such relationship was present here.

Concluding its analysis, the Court, however, held that public policy alone supports recognition of a duty of care between Kasey and Followill. Relying on Estate of Hernandez v. Ariz. Bd. of Regents, 177 Ariz. 244, 253 (1994), the Court stressed that the existence of a criminal statute outlawing certain conduct establishes a tort law duty where the civil plaintiff falls within the class of people that the statute is designed to protect and where the harm complained of occurred as a result of the statute's violation. Noting that several Arizona criminal statutes criminalize Kasey's distribution of Oxycodone, the Court held that Kasey owed a duty of care to Followill. The Court thus remanded the case to the Superior Court for further proceedings consistent with the opinion.

All four other Justices concurred in the opinion, but Justice Hurwitz wrote separately to urge that Arizona adopt the Rule of the Restatement (Third) of Torts, which asserts that every actor owes a duty of reasonable care whenever his conduct creates a risk of harm. Put another way, rather than focusing on when the law creates or imposes a duty, Justice Hurwitz would begin from the principal that a duty exists and then depart from the finding of a duty "only in those cases where public policy justifies an exception." (Para. 35) He stressed, however, that the outcome on the facts of this case would be the same, but that he believed that the Third Restatement's rule provides a simpler and better rationale.

Arizona Department of Economic Security v. Reinstein (1/18/07): Division One Holds That Repeal of Statute Providing Right to Jury Trial In Parental Rights Severance Proceedings Does Not Apply Retroactively To Deny Jury Trial to Parents Who Had Requested Jury Trial Prior to the Repeal.

Prior to January 1, 2007, Arizona Revised Statutes (“A.R.S.”) § 8-223 provided that “[a] hearing to terminate parental rights . . . shall be tried to a jury if a jury is requested by a parent, guardian or custodian whose rights are sought to be terminated.” However, section 8-223 included a “delayed repeal clause” stating that the statute remained in effect only until January 1, 2007. On September 26, 2006, the Arizona Department of Economic Security (“ADES”) filed a petition to terminate the parental rights of Vanna C. and Gabriel T. (“Parents”). Sometime prior to January 1, 2007, the Parents requested a jury trial pursuant to A.R.S. § 8-223. The trial was then set for January 12, 2007. Noting that the trial was scheduled to occur after the automatic repeal of section 8-223, ADES argued that the Parents were no longer entitled to a jury. The trial court rejected this argument, concluding that because the motion to terminate parental rights and the request for a jury trial were both filed prior to January 1, 2007, the Parents retained their right to a jury trial, despite the fact that the hearing was scheduled to occur after the jury trial statute had been repealed. ADES then filed a special action petition with the Court of Appeals. The Court of Appeals accepted jurisdiction and denied relief.

On appeal, ADES argued that the plain language of A.R.S. § 8-223 clearly indicates the Legislature’s intent to grant jury trials only for those termination hearings that occur prior to January 1, 2007. The Court rejected this argument, holding that although the statutory language unambiguously establishes the Legislature’s intent to repeal the jury trial provision for termination proceedings filed after January 1, 2007, nothing in the statutory language indicates what the legislature intended with respect to pending cases. The Court further noted that, under Arizona law, statutes may not apply retroactively unless such application is expressly declared within the statute itself. See A.R.S. § 1-244. The court found that A.R.S. § 8-223 contained no such provision. ADES argued, however, that even in the absence of such express language, “statutory changes in procedures or remedies may be applied to proceedings already pending except where the statute affects or impairs vested rights.” Opinion at ¶ 11 (quoting Wilco Aviation v. Garfield, 123 Ariz. 360, 362, 599 P.2d 813, 815 (App. 1979)). While acknowledging this exception, the Court rejected ADES’ contentions that the repeal of section 8-223 effected a mere procedural change, and that the rights implicated had not yet vested in the Parents. Rather, the Court concluded that in passing section 8-223 the Legislature intended to provide a substantive right to a jury trial where none had existed before. Moreover, citing Brunet v. Murphy, 212 Ariz. 534, 539, 135 P.3d 714, 719 (App. 2006), the Court held that a right vests the moment the holder chooses to assert it. Thus, in the present case, the right to jury trial provided by A.R.S. § 8-223 vested in the Parents upon the Parents’ assertion of that right through their request for a jury trial. Because the Parents in this case had requested a jury trial prior to January 1, 2007, their right to such a proceeding had both accrued and vested prior to the statute’s repeal and could not be abrogated by a subsequent act.

Finally, the Court noted that the general savings statute, A.R.S. § 1-249 provides that “[n]o action or proceeding commenced before a repealing act takes effect, and no right accrued, is affected by the repealing act.” Although, the Court declined to determine exactly when the right to jury trial had accrued in this case, it had clearly accrued at the time it vested in the parents and prior to the January 1, 2007 repeal of section 8-223. Thus, the repeal could not retroactively deprive the parents of their right to a jury trial.

Judge Ehrlich authored the unanimous opinion joined by Presiding Judge Winthrop and Judge Weisberg.

Lennar Corp. v. Auto-Owners Insurance Co. (1/23/07): Division One Finds Claims of Damage to Home Caused by Allegedly Faulty Workmanship Sufficiently Allege an “Occurrence” Under Homebuilder’s Insurance Policies, Reverses Summary Judgment for Insurers

Homeowners sued their home developer for breach of warranty and other claims stemming from damage to their home allegedly caused by negligent construction. The developer tendered defense of the claims to its insurer, and to its subcontractors’ insurers, and presented to the insurers evidence of its consultant’s findings that the damage had been caused by specific subcontractors’ negligence. None of the insurers provided the developer with a defense; two filed a declaratory relief action to determine the duty of any or all of them to defend. The developer answered and counterclaimed for breach of contract and insurance bad faith. The trial court granted summary judgment for the insurers on all claims. The developer appealed.

The Court of Appeals reversed, finding that accidental property damage that occurs as a natural result of faulty workmanship may constitute an “occurrence” under the applicable liability insurance policies, thus obligating the insurers to provide a defense to the developer. The policies define “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The Court rejected arguments that the deliberate acts of subcontractors could not constitute an “accident” from the relevant perspective—that of the developer insured. It also rejected the subcontractors’ insurers’ argument that the complaint did not sufficiently allege facts regarding the specific subcontractors. Once the insured developer made a factual showing that the suit was one for damages within the policy terms, the insurers had a duty to investigate the facts and to provide a defense if so indicated. Questions of fact precluded sustaining judgment for the insurers on the alternative grounds of the “known loss” rule and relevant policy periods. The Court also reversed summary judgments on the bad faith claim and any awards of attorneys’ fees below.

The Court upheld judgment in favor of one subcontractor’s insurer on the alternative ground that the developer was not an “additional insured” under the insurer’s policy, which obligated the insurer to provide coverage to any corporation to whom the subcontractor had agreed to provide liability insurance. The Court found that the subcontractor had not agreed to provide the developer with liability insurance despite contractual promises to the developer to indemnify it and to obtain insurance. An agreement to obtain insurance is not the same as an agreement to add a general contractor to the policy as an additional insured. The dismissed insurer was awarded attorneys’ fees.

Judge Snow wrote the opinion, which was joined by Presiding Judge Hall and Judge Norris.

Goddard v. Fields(1/16/07): Division One Holds Attorney General is Not Entitled to Absolute Immunity from Claim of Defamation in Connection with Press Release

A real estate developer and his related entities acquired title to property bordering state trust lands with the intention of creating a residential and business development. Attorney General Terry Goddard filed suit against the developer, alleging that he violated numerous laws applicable to developers in his position. The developer counterclaimed, alleging that Goddard had issued a press release containing false and defamatory statements. (The press release alleged “numerous violations of state law and destruction of the State’s natural and archaeological resources.”) Goddard moved to dismiss the counterclaim, asserting that he had “an absolute privilege to publish defamatory matter concerning another in communications made in the performance of his official duties.” The trial court disagreed, holding that in this context Goddard had only “qualified” immunity, which immunizes only official acts “done in good faith,” rather than “absolute” immunity, which immunizes all official acts, “no matter how malicious.” Goddard sought special action relief in Division One. The Court of Appeals accepted special action jurisdiction, noting that interlocutory review in official-immunity cases is commonly permitted because the benefits of immunity are lost if the party claiming it is forced to defend himself. But the Court denied relief. The Court first noted that the Arizona Supreme Court, in Chamberlain v. Mathis, 151 Ariz. 551, 729 P.2d 905 (1986), had adopted “a general rule of qualified immunity, bolstered by an objective malice requirement for executive government officials.” Pursuant to this standard, absolute immunity is unavailable unless the official demonstrates that it is “essential to conducting public business.” The Court found that Goddard had not made this showing. Goddard argued that he should not be required to defend the counterclaim at the same time that he prosecuted the underlying case, but the Court noted that the trial court had addressed this issue by agreeing to separate the trials of the underlying claims and the counterclaim. Goddard claimed that he would be unable to waive the confidentiality of privileged communications that underlay the press release, but the Court stated that it “cannot imagine what type of privileged attorney-client communications and information could support a decision to issue a press release and yet still be undiscoverable.” Goddard warned that if he were denied absolute immunity, defendants would be encouraged to assert counterclaims as a defense strategy, chilling legitimate state lawsuits, but the Court noted that Goddard had not adequately explained why the protections of qualified immunity with an objective malice requirement were insufficient to prevent this from occurring. Goddard argued that “established public policy” entitled him to absolute immunity for issuing press releases about litigation, but the Court noted that no statute required him to issue press releases regarding pending cases. Goddard pointed out that heads of executive departments typically are granted absolute immunity, but the Court concluded that the Arizona Supreme Court implicitly rejected this view in Chamberlain. Finally, Goddard cited cases from other jurisdictions granting absolute immunity in similar circumstances, but the Court refused to follow these cases, noting that they followed a United States Supreme Court precedent that the Arizona Supreme Court rejected in Chamberlain. The Court noted that its holding did not address situations in which “the Attorney General is the policy maker,” such as criminal prosecutions and consumer protection.

Judge Hall dissented, arguing that the case fit within the narrow exception to Chamberlain’s rule of qualified immunity. Judge Hall reasoned that the majority had improperly construed Chamberlain’s standard for governmental immunity as applying to “high-level executive” immunity. He added that “[t]he harm to the public would be substantial if an attorney general hesitated in explaining the activities of his office for fear of otherwise incurring tort liability.”

The majority opinion was authored by Judge Orozco and joined by Judge Irvine.

Arizona Together v. Brewer (1/12/07): Supreme Court Refines “Separate Amendment” Test for Proposed Constitutional Amendments and Finds Proposition 107 (Defining Marriage) Would Constitute a Single Amendment

Proposition 107 (“Prop. 107”), which was rejected by Arizona voters in November, 2006, had proposed to define marriage as a union between one man and one woman, and to prohibit granting legal status similar to marriage to any unmarried persons. Opponents of the measure had sought to keep Prop. 107 off the ballot on the ground that it violated the “separate amendment” rule of Article 21, Section 1 of the Arizona Constitution. The superior court rejected that challenge, and the Arizona Supreme Court on August 31, 2006, affirmed the judgment of the superior court. This opinion by the Supreme Court explained the bases for that decision.

The Court held that the separate components of Prop. 107 did not constitute separate constitutional amendments because, under the “common purpose or principle” test first articulated by Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549 (1934), the separate provisions were topically related and sufficiently interrelated that they logically should “stand or fall as a whole.” The Court abandoned the inquiry from previous cases asking whether a voter supporting part of the proposition would reasonably be expected to support the other parts. That inquiry, the Court concluded, “has shed little light” on whether a common purpose or principle sufficiently unites separate parts of a proposed amendment. The Court rejected as contrary to precedent and constitutional history an argument that the “separate amendment” rule should be viewed, not as substantive, but as merely a procedural rule to guide the preparation of ballots for constitutional amendments.

Chief Justice McGregor wrote the opinion for the unanimous Court; Justice Hurwitz separately concurred.

Stein v. Sonus USA, Inc. (1/9/07): Division Two Affirms Trial Court’s Decision That Hearing Aids Are Not Subject to “Assistive Device” Warranty Statutes

Appellant Walter Stein filed a complaint against Appellee Sonus based on alleged defects in hearing aids he had purchased from Sonus, seeking relief under Arizona’s assistive device warranty statutes. The trial court granted summary judgment to Sonus, finding that a hearing aid is not an “assistive device” as defined in A.R.S. § 44-1351(1). This appeal followed. Acknowledging that the statute’s text allows for more than one rational interpretation and that there is uncertainty about its meaning, the court applied rules of statutory construction and examined “the statute’s history, context, effects and consequences, and spirit and purpose.” Based on legislative history, the court concluded that the legislature purposely deleted hearing aids from the assistive device warranty statutes and did not intend that hearing aids be included.

Judge Howard authored the opinion; Judges Pelander and Vasquez concurred.

Haywood Securities, Inc. v. Hons. Ehrlich/Barker, et al. (1/10/07): Supreme Court Holds That a Typed Signature of a Judge in the “/s/ Name” Format on an Electronically Filed Judgment Complies With the Requirement of Rule 58(A) That Judgments Be “Signed.”

A judgment is appealable under A.R.S. § 12-2101 only if it complies with the requirements of Arizona Rule of Civil Procedure 58(a). Rule 58(a) provides that “all judgments shall be in writing and signed by a judge.” In a case pending in the Complex Civil Division, the Superior Court issued two judgments electronically, with “/s/ Kenneth L. Fields” appearing on the signature line. The Court of Appeals held that a “signed” judgment requires a manual signature. The Supreme Court reversed, holding that a typed signature of a judge in the “/s/ Name” format on an electronically filed judgment satisfies Rule 58(a)’s requirement that judgments be “signed.” The Supreme Court reasoned that such an interpretation is consistent with: (1) the ordinary understanding of the term “signed;” (2) prior cases focusing on the intent of the judge; and (3) the new policies pertaining to the electronic filing of court documents. As long as a judge intends that his or her electronic signature formalizes a written judgment, the document complies with Rule 58(a).
Judge Ryan authored the unanimous opinion.

Contreras v. Walgreens Drug Store #3837 (12/27/06): Arizona Court of Appeals Division Two Affirms Grant of Summary Judgment In Slip And Fall Case Where Defendant Had No Actual or Constructive Notice of Condition And Plaintiff Did Not Present Sufficient Evidence Under “Mode-Of-Operation” Rule

David Contreras, an employee of a liquor distribution company, filed a negligence action against Walgreens for injuries sustained when he fell on Walgreens’ premises after slipping on a liquid spilled on the floor. The trial court granted summary judgment because Contreras presented no evidence that any Walgreens employee knew the spill was present and because Contreras failed to demonstrate the “mode of operation” rule applied to the case.

Division Two affirmed. The mode of operation rule “looks to a business’s choice of a particular mode of operation and not events surrounding the plaintiff’s accident. Under the rule, the plaintiff is not required to prove notice if the proprietor could reasonably anticipate that hazardous conditions would regularly arise.” Here, Walgreens’ store manager testified in his deposition that the store was open twenty-four hours, and that “a couple of spills” a week occurred, but they were not “repetitive in nature.”
Division Two reasoned that it was “insufficient” for purposes of the mode of operation rule “to demonstrate that spills of some kind regularly occur; the business must be able to reasonably anticipate that a condition hazardous to customers will regularly occur.” Contreras’ evidence did not permit that inference because he provided “no evidence the liquid from spills occurring twice a week necessarily reached the floor nor that those spills occurred in the area of the store accessible to customers.”

Judge Brammer wrote the opinion; Judge Eckerstrom, Presiding Judge, and Judge Espinosa concurred.

City of Phoenix v. Harnish (12/28/06): Division One Holds City Cannot Condemn Land for Park Purposes Outside its Territorial Limits

Harnish owned an undeveloped 5-acre parcel of land outside the City of Phoenix, in unincorporated Maricopa County. In 2001 the Phoenix City Council approved an ordinance to acquire 22 parcels of land for a nature preserve, including the 5-acre lot owned by Harnish. After failing to reach agreement an agreement to buy the parcel from Harnish, the City filed an eminent domain complaint in 2003. The Superior Court ruled that under ARS 9-511 the City could condemn the land because it fulfills a "public park purpose." A jury subsequently fixed the amount of Harnish's "just compensation at $590,527" and Harnish appealed.

Division One first held that the words "public park" have their ordinary, dictionary meaning, and that the nature preserve here falls within that definition. The Court then held, however, that Section 9-511 does not grant the City the power to condemn the land exclusively for public park purposes. The Court confirmed that the power of eminent domain is vested in the State, and that cities have only such eminent domain powers that are statutorily delegated to them. Then, parsing the statute's conjunctions, and considering the placement of the statute within Chapter 5 titled "Public Utilities," the Court concluded that Section 9-511 only allows a city to condemn land outside its boundaries for park purposes when that land is also used simultaneously for public utility purposes. Finally, the Court held that the City charter cannot authorize the condemnation of the Harnish land, because state law, as previously described, prohibits such condemnations.

Because the Court held that the City lacked the power to condemn the land, it reversed the Superior Court and remanded for entry of judgment in favor of Harnish, awarding her costs and and fees for both trial and appeal. Judge Gemmill wrote the opinion, in which Judges Kessler and Orozco concurred.

Ninth Circuit (Judges Schroeder, Noonan, and Schiavelli) to Hear Arguments in the Proposition 200 Appeal on Monday, January 8, 2007

Opening Brief

Answering Brief

Reply Brief

Amicus Brief of Brennan Center

State's Response to Amicus Brief of Brennan Center

Counties' Response to Amicus Brief of Brennan Center

Amicus Brief of League of Women Voters