AZAPP Blog

In re MH 2008-002659 (1/21/2010): Arizona Court of Appeal Division One Holds That a Mental Health Patient’s Right to a Hearing to Challenge Involuntary Hospitalization During a Mental Health Evaluation Does Not Include the Right to Challenge the Evaluation Itself

In response to threats of suicide and other troubling behavior by the appellant, the appellant’s son applied for a court order that his mother undergo emergency admission for evaluation under A.R.S. § 36-524 or for mental health evaluation under A.R.S. § 36-524. Pursuant to A.R.S. § 36-529(A), the superior court issued a detention order for evaluation which stated that in conformity with A.R.S. § 36-529(D), the appellant had a right to “a hearing to determine whether [s]he should be hospitalized for the seventy-two hour evaluation period.” Three days after she had already undergone the evaluation, the order was served on the appellant at a psychiatric facility where she was being detained for the evaluation period. Following the evaluation, the superior court found that she was disabled because of a mental disorder, and ordered that she undergo inpatient and outpatient treatment. She appealed this civil commitment treatment order on due process grounds, arguing that because she was not served until after the evaluation, she was deprived of her statutory right to a hearing, and that because the evaluation took place before she was served, she was denied the right to contest the detention order. The appellant argued that if she had been able to request a hearing to contest the detention order, she could have prevented her involuntary hospitalization, and thus prevented the evaluation which led to her civil confinement.

The Arizona Appeals Court agreed that the appellant was entitled to be informed about her right to a hearing to contest her involuntary hospitalization. The Appeals Court held that the appellant was not entitled to have her treatment order dismissed, however, explaining that while A.R.S. § 36-529(D) allows patient to contest their involuntary hospitalization for the evaluation, it does not give them a right to contest the actual evaluation. At such a hearing, patients may contest the hospitalization by showing that they are not likely to deteriorate further, suffer harm to themselves, or cause harm to others if not hospitalized during the evaluation, but the patient may not contest the evaluation itself.

Judge Hall authored the opinion; Judges Kessler and Orozco concurred.

Posted By: James K. Rogers

Special Fund Division v. Industrial Commission of Arizona (1/21/2010):  Division One Holds That When a Worker Suffers Two Injuries in a Single Industrial Accident, His Employer May Be Entitled to Reimbursement from the Industrial Commission Special Fund, Even If Either of the Injuries Alone Would Not Entitle the Employer to Reimbursement

If an employer hires an impaired worker who later suffers a permanent injury on the job the employer is, in certain circumstances, entitled to reimbursement from the Industrial Commission Special Fund for the disability compensation paid to the employee.  In this case, the employer, McCarthy Building Companies, hired Michael Sordia, knowing he had Type II diabetes.  In an accident at work, Sordia broke his left arm and right leg and, as a result, received extensive medical, surgical, and psychological treatment. 

The Industrial Commission found that Sordia was permanently partially disabled.  Both Sordia and McCarthy appealed the decision, Sordia claiming he was entitled to greater disability benefits and McCarthy claiming it was entitled to reimbursement from the Special Fund under A.R.S. § 23-1065(C).  The administrative law judge hearing the appeal found that Sordia was permanently and totally disabled and that McCarthy was entitled to reimbursement.  After an unsuccessful request for administrative review, the Special Fund appealed.

The Court of Appeals affirmed the ALJ’s decision.  The statutory scheme, enacted to encourage employers to hire impaired employees, allows for partial reimbursement of disability benefits if the industrial injury is “not of the type specified in [A.R.S.] § 23-1044, subsection B.”  A.R.S. § 23-1065(C).  Although both of Sordia’s injuries – a broken arm and a broken leg – are specified in A.R.S. § 23-1044(B), the Court of Appeals concluded that, because the two injuries were part of the same accident, Sordia’s overall injury was “not of the type specified” in the statute.  Therefore, McCarthy was entitled to reimbursement from the Special Fund.

Judge Gemmill authored the opinion; Judges Swann and Johnsen concurred.

Ritchie v. Salvatore Gatto Partners, L.P. (1/05/2010): Arizona Court of Appeals Division One Holds That a Party Who Redeems a Tax Lien Before Completion of Service of Process by Publication in a Foreclosure Action Is Not Liable for Plaintiff’s Costs and Fees.

Plaintiff, who owned a tax lien certificate of purchase for property in Mohave County, initiated an action for judicial foreclosure of the right of redemption pursuant to A.R.S. § 42-18201.  Plaintiff initiated service of process for the action by publication, once per week for four weeks, in a local newspaper.  See Rule 4.1(n), Ariz. R. Civ. P. (service of process by publication).  Before the four weeks of publication were complete, a property owner redeemed the tax lien pursuant to A.R.S. § 42-18151.

Plaintiff sought an award of attorneys fees and costs under A.R.S. § 42-18206.  The property owner disputed whether the statute applied.  Following cross motions for summary judgment and oral argument, the trial court ruled in Plaintiff’s favor, awarding costs and fees.  The property owner appealed.

The Court of Appeals reversed.  Under A.R.S. § 42-18206, a person who is entitled to redeem a tax lien may do so at any time before judgment is entered on a foreclosure action.  If, however, the redemption occurs after service of process, either personally or by publication, then the party redeeming the tax lien shall be required to pay the plaintiff’s costs, including a reasonable attorney fee.  Here, however, because the statutory prerequisite of service of process was not complete under Rule 4.1(n) when the tax lien was redeemed, the trial court erred by awarding costs and fees.         

Judge Winthrop authored the opinion; Judges Swann and Brown concurred.

Posted By: Mark Hummels

 

Kaufman v. Langhofer (12/22/2009):  Arizona Court of Appeals Division One Holds That Pet Owners Are Not Entitled to Recover Emotional Distress Damages for the Death of a Pet in Negligence Actions.   

In May 2005, Plaintiff David Kaufman took his pet scarlet macaw, Salty, to Dr. William Langhofer and Scottsdale Veterinary Clinic (“Defendants”), for treatment.  Salty died on June 21, 2005 after Dr. Langhofer performed two operations.  Kaufman sued Defendants on multiple theories, including professional negligence, and sought special damages, including emotional distress, pain and suffering, and loss of companionship.  Defendants moved to dismiss these emotional distress damage claims.  The Court granted the motion, but allowed Kaufman to seek special damages for Salty’s fair market value.  A jury found Defendants 30% at fault for Salty’s death, but awarded Kaufman no damages because Salty had no market value due to an unrelated cardiac disease.  Kaufman timely appealed.  

The Arizona Appeals Court affirmed.  The Court held that Arizona, like the majority of jurisdictions in the United States, classifies pets as personal property and limits recovery for negligent injury to or death of a pet to the animal’s fair market value.  The Court explained that although some Arizona cases allow property owners to recover emotional distress damages when their property is negligently damaged, those cases involve tortious conduct directly harming the plaintiff and affecting or burdening a personal, as opposed to an economic or other interest belonging to the plaintiff.  In this case, Defendants’ negligence did not directly harm Kaufman because it did not affect or burden a personal right or interest belonging to him. 

The Court rejected Kaufman’s request that it expand Arizona common law to allow recovery of emotional distress damages for pets, similar to a loss of consortium theory, explaining that such an expansion would inappropriately offer pet owners broader compensation for the loss of a pet than is currently available for the loss of human friends, siblings, and nonnuclear family members.  The Court also rejected Kaufman’s argument that he was entitled to “value to owner” damages because he waived this damage theory below by failing to pursue it at trial.

Presiding Judge Norris authored the opinion; Judges Weisberg and Downie concurred.

Posted By: Sharad Desai

Turken v. NPP CityNorth, L.L.C. (1/25/2010): Arizona Supreme Court Holds that Courts May Not Consider Indirect, Non-Contractual Public Benefits in Determining Whether the Public Benefit to be Obtained from a Private Entity Under a Public Contract Is So Far Exceeded by the Consideration Paid by the Public that the Agreement Violates the Arizona Constitution’s Gift Clause.

Taxpayers sued the City of Phoenix, seeking to enjoin payments to a developer under an agreement with the City (“the Parking Agreement”).  The Parking Agreement provided for the City’s use of certain parking spaces at a planned mixed-use commercial and residential development project, in exchange for payments of as much as $97.4 million over more than eleven years.  The superior court granted summary judgment for the defendants, finding that the Parking Agreement did not violate the Arizona Constitution’s Gift Clause because the payments to the developer (1) served a public purpose and (2) were not excessive in view of the expected public benefit, including anticipated tax revenues from the development.

The Court of Appeals reversed, finding the Parking Agreement violated a third prong of the required test for alleged Gift Clause violations because it unduly promoted private interests.  The City and developer petitioned for review, which the Arizona Supreme Court granted.

The Supreme Court vacated the Court of Appeals’ opinion, holding that the third prong of the Court of Appeals’ Gift Clause analysis was not appropriate under the applicable test, set forth by Wistuber v. Paradise Valley Unified Sch. Dist., 141 Ariz. 346, 687 P.2d 354 (1984).  The Court also held, however, that courts applying the Wistuber test should not factor in any indirect, non-contractual public benefits, such as anticipated increased tax revenues, in determining whether the consideration to be paid by the public is grossly disproportionate to the public benefit received in exchange.  When conducting this analysis, courts should instead consider the objective value of only the specific consideration promised by the developer under the agreement – in this case, the parking spaces.    

Although the Court did not overrule any of its prior decisions, it determined that its ruling should apply prospectively only because the Court’s Wistuber test had been subject to contrary interpretation and was widely misunderstood.  The Court affirmed the superior court’s dismissal of the Gift Clause claim and remanded to the Court of Appeals for consideration of other constitutional arguments not previously decided.

Justice Hurwitz wrote the opinion for the unanimous Court.

Posted By: Mark P. Hummels 

Beck v. Deem (1/14/2010): Arizona Court of Appeals Division One Holds That A.R.S. §§ 14-3910 and 14-3972(C) Protect a Third-Party Purchaser of a Beneficial Interest in a Deed of Trust Even When the Original Transferor Wrongly Obtained Title Through a Fraudulent Affidavit for Transfer of Real Property.

When Rodney Olson died in 2003, he left a home to his three children – Sherry, Beck, and Todd.  Sherry hoped to refinance the home’s mortgage through Landmarc Capital & Investment Company and executed a deed of trust in Landmarc’s favor.  Beck and Todd signed quitclaim deeds disclaiming their interest in the home.  In exchange, Sherry agreed to pay Beck $25,000.

To obtain title from the estate, Sherry executed an Affidavit for Transfer of Real Property Title under A.R.S. § 14-3971(E).  Among other things, the statute required that such an affidavit involve property not worth more than $50,000 and imposed penalties for false statements.  Sherry’s affidavit stated she was the only “living heir” and that the home’s value did not exceed $50,000, although the home had been appraised a month earlier for $244,000. After obtaining title, Sherry refinanced the mortgage with Landmarc for $155,000 and Landmarc later assigned its beneficial interest to Deem.

Meanwhile, Sherry did not pay Beck the agreed $25,000, causing Beck to attempt to recover the home on behalf of Olson’s estate.  The trial court ordered Sherry to return the home to the estate, concluding that Sherry’s affidavit was based on false statements and was ineffective to transfer title to Sherry.  Beck also brought a claim against Landmarc, Deem, and others, asking the court to invalidate the deed of trust.  The trial court granted summary judgment for Beck, finding that the deed of trust was invalid.  Deem, Landmarc, and others appealed.

In a unanimous opinion, the Court of Appeals reversed, holding that Deem’s beneficial interest in the deed of trust was valid.  First, the Court explained that A.R.S. §§ 14-3910 and 14-3972(C) extend certain protections to purchasers or lenders who acquire interests in property through transfer affidavits – like Sherry’s affidavit – or through “deeds of distribution,” which involve an estate’s appointed “personal representative.”  The Court explained that the statutes protect purchasers who rely on improper transfer affidavits, so long as the purchaser is not implicated in any fraud.  Second, the Court held that the fact that Deem did not purchase or lend directly with Sherry did not affect Deem’s interest.  A narrow reading of A.R.S. § 14-3910 suggests that the statute would only protect an interest of a third-party like Deem only if it were acquired through a “deed of distribution.”  The Court reasoned, however, that it did not make sense to afford less protection to interests acquired through transfer affidavits, which are a “simplified means” of transfer not requiring an appointed personal representative.  Thus, read together, A.R.S. §§ 14-3972 and 14-3910 afforded Deem the same protections regardless of the form of transfer.  Finally, because no evidence suggested that Deem had any involvement in Sherry’s false affidavit, Arizona law protected Deem’s interest.

Judge Irvine authored the opinion; Judges Gemmill and Thompson concurred.

PRACTICE NOTE:  Although Appellants prevailed on appeal, the Court declined to grant their request for attorneys’ fees and costs.  First, the Court held that A.R.S. § 12-341.01 did not apply because the parties requested statutory relief, not relief “arising out of contract.”  Second, A.R.S. § 33-420 did not apply.  That statute allows an award of fees against a party who files a “wrongful document” against property, but Sherry was not a party to this suit.  Finally, A.R.S. § 33-806(B) did not apply.  Although that statute allows fees “to prevent . . . [i]mpairment of the security provided by the trust deed,” the “impairment of the security” means actual damage, waste, destruction, or improper maintenance of the secured property.

Posted By: Joseph N. Roth

Kadlec v. Dorsey (12/24/2009): Arizona Court of Appeals Division Two Holds that When Land is Sold Subject to a Roadway Easement, Courts are to Presume an Intent to Dedicate the Roadway to Public Use.

Between December 1994 and October 1995, Richard Turigliatto conveyed three parcels of real property to three different purchasers.  Each conveyance included an easement for a dirt road running through the parcels.  In 2006, the Dorseys, successors-in-interest to the purchaser of the central parcel, placed barriers on their property at each end of the roadway.  The Kadlecs and the Howells, owners of the neighboring parcels of land, filed separate actions to enforce the easement and recover damages.  At trial, the Kadlecs moved for partial summary judgment on the issue of the Dorseys’ property being subject to a recorded easement, and the Dorseys filed a cross-motion for partial summary judgment on the issue of the Kadlec’s claim of beneficial interest in any such easement.  The trial court granted the Kadlec’s motion and denied the Dorseys’, concluding that the language of the deed did not reflect that the grantor intended to limit the benefit of the easement to any particular parcel or person.  The Dorseys appealed. 

The Arizona Court of Appeals affirmed the trial court’s disposition, holding that the conveyance at issue resulted in a common law dedication of the roadway to public use.  Although no particular words are necessary to dedicate land to public use, Arizona courts ordinarily require clear and unequivocal evidence that a dedication was intended for a general public purpose.  However, because a street is “a public place which all segments of the general public are expected to be able to use,” the Court of Appeals concluded that when land is sold subject to a roadway easement, “the usual burden of proof is reversed and courts are to presume an intent to dedicate the roadway to public use.”  In this case, Turigliatto did nothing to indicate it was his intent to reserve the right to use the easement to only himself and his successors-in-interest.

Judge Vasquez authored the opinion; Judges Eckerstrom concurred.

Judge Brammer dissented, arguing that the caselaw the majority relied upon does not support the proposition that courts may presume a public dedication when land is sold subject to a roadway easement.   According to Judge Brammer, the Court should not have departed from Arizona’s general rule that a public dedication must be clearly shown. 

Posted By: Brandon A. Hale 

T.P. Racing, L.L.L.P. dba Turf Paradise Race Track v. Arizona Department of Racing (12/22/2009):  Division One of the Arizona Court of Appeals Holds That, Pursuant to A.R.S. § 5-107.01, the Department of Racing May Pass on to License Applicants the Full Cost of a Thorough Background Investigation.

A.R.S. § 5-107.01(E) requires license applicants to submit fingerprints and information related to the applicant’s criminal history to the Arizona Department of Racing.  That provision further requires applicants to “pay the fingerprint fee and costs of the background investigation in an amount that is determined by the department.”  The Department required Turf Paradise Race Track to pay more than $60,000 to cover expenses it incurred in conducting a background investigation in connection with Turf Paradise’s license renewal application.  The expenses covered work done by a certified public accountant, a professional investigator, and the Department.  After paying the expenses and having its license renewed, Turf Paradise brought suit challenging the Department’s authority to require such payments, arguing that A.R.S. § 5-107.01 allows the Department to pass on to license applicants only the cost of conducting an investigation into an applicant’s criminal history.  

The Superior Court rejected Turf Paradise’s argument, and the Court of Appeals affirmed.  The Court relied on principles of statutory interpretation, including reading Section 5-107.01(E) in context with related statutes.  Specifically, A.R.S. § 5-108(A) requires the Department to conduct a “thorough investigation” into an applicant’s character.  The Department has authority, the Court said, to pass along the full cost of that that thorough investigation to the applicant.  

Judge Swann authored the opinion; Judges Winthrop and Brown concurred.

Posted by: Kathy O'Meara 

Romer-Pollis v. Ada (12/24/2009): Arizona Court of Appeals Division One Affirms Dismissal of Plaintiff’s Appeal of Arbitration Award When Plaintiff Failed to Comply with Arbiter’s Order To Submit a Pre-Hearing Written Statement and To Appear at Arbitration Hearing.

Romer-Pollis sued Ada after an automobile accident and the case went to compulsory arbitration.  Each party was ordered to submit a written pre-hearing statement, but only the defendant, Ada, submitted one.  In addition, Romer-Pollis did not appear at the arbitration hearing, although her attorney attended via telephone, and she offered no exhibits or other information at the hearing.  After the arbiter awarded Romer-Pollis $4,000, she appealed to the superior court, seeking a new trial.  The superior court dismissed the appeal, finding that Romer-Pollis did not participate in arbitration in good faith.  Romer-Pollis appealed the dismissal to the Court of Appeals.

In a unanimous opinion, the Court of Appeals affirmed.  The rules governing compulsory arbitration state that a party’s “[f]ailure to appear at a hearing or to participate in good faith . . . shall constitute a waiver of the right to appeal absent a showing of good cause.”  Ariz. R. Civ. P. 75(h).  Failure to appear at a hearing, by itself, may not justify dismissal of an appeal if the party’s testimony is not pertinent to the issues determined at the hearing.

First, the Court held that the superior court had dismissed her appeal not only because she failed to appear at the hearing, but also because she failed to participate in good faith.  Second, the Court held that the record supported a finding that Romer-Pollis did not participate in good faith because she failed to comply with the arbiter’s order to appear at the hearing and to submit a prehearing statement, and she made no effort to offer a “good reason” for her failure to comply. 

Finally, the Court held that even if the lower court had relied on her failure to appear personally at the hearing, it would not have been error.  Because Romer-Pollis had the burden to prove her damages, which included damages for continued pain and suffering, her personal testimony would have been pertinent to the proof of damages.

Judge Portley authored the opinion; Judges Johnsen and Barker concurred.

Posted by: Joseph Roth

Ballestros v. American Standard Insurance Company of Wisconsin (12/23/2009): Division Two of the Arizona Court of Appeals Holds That A.R.S. § 20-259.01 Does Not Provide an Automatic Safe Harbor From Suit When a Department of Insurance Form is Used to Convey an offer of UM/UIM Coverage When an Insurer Knows or Should Know That Merely Providing the Form Would be Insufficient to Reasonably Convey the Offer to the Potential Insured. 

In March 2001, Luis Ballesteros, whose primary language is Spanish, purchased automobile insurance from American Standard Insurance Company of Wisconsin (“American Standard”).  Ballesteros received a form for the selection or rejection of uninsured/underinsured motorist (“UM/UIM”) coverage that was written only in English.  Ballesteros signed the form indicating he rejected UM/UIM coverage.  Ballesteros filed suit after he was denied UM/UIM coverage.  American Standard filed two motions for partial summary judgment, which were denied by the trial court.  Ballesteros then filed a motion for partial summary judgment on the issue of whether American Standard violated A.R.S. § 20-259.01by failing to provide him with the UM/UIM coverage form in Spanish.  The trial court granted this motion and entered judgment for Ballesteros on the breach of contract claim.  American Standard timely appealed.   

A.R.S. § 20-259.01 requires every insurer offering automobile or motor vehicle liability policies to offer the insured written notice of the availability of UM/UIM coverage.  The statute also provides that the “selection of limits or rejection of coverage by a named insured or applicant on a form approved by the director is valid for all insureds under the policy.”  On appeal, American Standard argued that this second sentence provides a safe harbor to insurers, insulating them from litigation where an approved form is used.  The Arizona Appeals Court rejected this argument.  In Giley v. Liberty Mutual Fire Ins. Co., the Arizona Supreme Court held that § 20-259.01 requires insurers to convey the offer of UM/UIM coverage in a way that is reasonably calculated to bring to the insured’s attention that whch is being offered.  Finding nothing in the legislative history to suggest that by adding the second sentence of § 20-259.01, the legislature intended to overrule Giley, the Court concluded that the use of a Department of Insurance form in this instance was insufficient.  The Court reasoned that when an insurer knows or should know that merely providing the offer form approved by the Department of Insurance would be insufficient to convey the offer of coverage to a potential insured because the insured cannot read the form, the insurer must take additional steps reasonably calculated to ensure the offer is communicated effectively.  This does not necessarily mean that the insurer was required to provide a Spanish language form however.  Thus, the Court affirmed the trial court’s denial of American Standard’s motions for partial summary judgment.

Regarding Ballesteros’ motion for partial summary judgment, the Court reversed the court’s entry of partial summary judgment for Ballestros and remanded for further proceedings because it concluded that a factual dispute existed regarding the steps taken by American Standard to convey the offer of UM/UIM coverage to Mr. Ballesteros. 

Judge Vásquez authored the opinion, Judges Eckerstrom and Brammer concurred.

Posted By: Kristin Windtberg 

In re Marriage of Pullen v. Pullen (12/24/2009): Arizona Court of Appeals Division One Holds that Courts Should Apply a Balancing Test to Determine Whether to Use Actual Income or Earning Capacity to Calculate Spousal Maintenance when Voluntary Reduction of Income Issues are Raised.

After 29 years of marriage, Connie Pullen filed a petition for dissolution of marriage.  In that petition, Ms. Pullen requested an award of spousal maintenance.  During the divorce proceedings, her husband, Arthur Pullen, III, voluntarily ended his employment at FedEx and moved to Washington where he obtained a lower paying job.  The trial court granted Ms. Pullen an award of spousal maintenance and used Mr. Pullen’s previous income to calculate the award.  Mr. Pullen subsequently filed a motion for a new trial, which the court denied.  He appealed, arguing that the trial court applied an incorrect legal standard for attributing income to him for purposes of determining spousal maintenance, and that there was insufficient evidence to hold that he voluntarily reduced his earning capacity. 

The Arizona Court of Appeals held that the trial court considered the appropriate factors for attributing to Mr. Pullen his prior income in determining spousal maintenance and that there was evidence supporting that holding.  Arizona courts have adopted an intermediate balancing test to determine whether to use actual income or earning capacity to calculate child support when a parent voluntarily reduces his or her income.  Although that balancing test has never been applied to attribute income for spousal maintenance purposes, the Court determined that the rationale behind the test clearly applies in the spousal maintenance context.  Therefore, according to the Court, “courts should balance [the following] five factors in determining whether to use actual income or earning capacity to calculate spousal maintenance when voluntary reduction of income issues are raised”: (1) the reasons asserted by the party whose conduct is at issue; (2) the impact upon the oblige of considering the actual earnings of the obligor; (3) when the obligee’s conduct is at issue, the impact upon the obligor of considering the actual earnings of the oblige and thereby reducing the obligor’s financial contribution to the support order at issue; (4) whether the party complaining of a voluntary reduction in income acquiesced in the conduct of the other party; and (5) the timing of the action in question in relation to the entering of a decree or the execution of a written agreement between the parties.  In this case, although the trial court did not expressly balance these factors, the Court of Appeals found that the record supported its decision under that analysis. 

Judge Kessler authored the opinion; Judges Hall and Orozco concurred.

Posted By: Brandon Hale

Trombi v. Hon. Donahoe/Alvarez-Miranda (12/22/09): Arizona Court of Appeals Division One Holds That Superior Courts Have the Authority to Conduct Contempt Proceedings Against the Sheriff's Office for Failure to Timely Transport Prisoners and That Civil Contempt Sanctions Must Serve a Compensating or Coercive Function.

After repeated failures by the Maricopa County Sheriff's Office (“MCSO”) to timely transport in-custody defendants to court appearances, the Maricopa County Superior Court issued orders to show cause in thirty different criminal cases. The orders were directed at Deputy Chief David Trombi, who is the MCSO officer in charge of prisoner transport and asked Trombi to show cause why he should not be held in contempt. Judge Gary E. Donahoe conducted a consolidated evidentiary hearing on the thirty orders and issued an order finding Trombi in contempt. Judge Donahoe ordered Trombi to pay designated sums to the jurors, prosecutors, defense attorneys, and defendants whose cases were delayed because of the failure to timely transport defendants. Judge Donahoe also ordered Trombi to pay $2,000 to the Superior Court, but specified that Trombi would be relieved of this obligation if MCSO presented a signed agreement to the court agreeing to abide by its orders and timely deliver inmates to their hearings. Trombi brought a special action to challenge the court's contempt order.

The Arizona Appeals Court partially granted relief and partially denied relief. The Appeals Court held that the Superior Court had authority to conduct the contempt proceedings by virtue of A.R.S. § 11-441(A)(4) (which creates a mandatory duty for the sheriff to “[a]ttend all courts . . . when an element of danger is anticipated and attendance is requested by the presiding judge, and obey lawful orders and directions issued by the judge”) and A.R.S. § 12-863 (which grants the court authority to find that a failure to obey orders issued pursuant A.R.S. § 11-441(A)(4) constitutes civil contempt). The Court held that Judge Donahoe did not violate the separation of powers doctrine because the contempt proceedings were not attempting to micromanage the operation of county jails, but were instead addressing the sheriff's mandatory statutory duty.

The Court further held that the sanctions Judge Donahoe ordered the MCSO pay to jurors, prosecutors, defense attorneys, and defendants were impermissible criminal contempt sanctions because their purpose was neither to compensate the parties nor to coerce Trombi. Criminal contempt sanctions were impermissible in this case because Judge Donahoe failed to follow the procedures set out in Ariz. R. Crim. P. 33 and because there was no finding beyond a reasonable doubt that Trombi acted willfully. The Court concluded, however, that the $2,000 fine was a permissible civil contempt sanction because Trombi was given the opportunity to avoid the fine through future compliance. The Court upheld the civil contempt sanction of $2,000 and vacated the remaining sanctions without prejudice to further contempt proceedings.

Judge Swann authored the opinion; Judges Winthrop and Brown concurred.

Posted By: James Rogers