APPELLATE HIGHLIGHTS by Thomas L

APPELLATE HIGHLIGHTS by Thomas L. Hudson, Osborn Maledon PA, and Patrick C. Coppen, Esq., Tucson

SUPREME COURT soever … be left to the jury,” Ariz. Government Acts. Pursuant to ognized a right to use a natural CIVIL MATTERS Const. art XVIII, § 5, applies to A.R.S. § 19-101(A), referendum stream to move and store water. The 10-Day Limitation for defenses that would operate as a petitions must include a 100-word A.R.S. § 45-173 (1994) expressly Judicial Review Under A.R.S. § complete bar to a plaintiff’s recov - “description of … the principal authorizes the use of a natural 19-122(A) Applies to ery, not contractual provisions that provisions of the measure sought channel to deliver water to an Challenges to the Secretary of limit the amount of recovery. 1800 to be referred.” A petition that fails underground storage facility. The State’s Actions Under A.R.S. § Ocotillo, LLC v. The WLB Group, to provide any description of the Arizona Department of Water 19-121.01. Pursuant to A.R.S. § Inc. , CV-08-0057-PR, 11/3/08. provisions is defective. An attach - Resources does not have to consid - 19-122(A), “Within ten calendar ment that arguably includes the er non-existing future uses to days after the [Secretary’s] refusal SUPREME COURT CRIMINAL MATTERS description will not cure this defect determine whether unreasonable [to transmit the facsimiles of a sig - An Arizona superior court errs because the attachment require - harm would result in connection nature sheet or sheets to the coun - in imposing a term of lifetime ment is a separate and distinct with issuing a permit authorizing ty recorders for certification] any probation for an act of attempt - requirement. Sklar v. Town of the diversion and storage of water. citizen may apply to the superior ed child molestation occurring Fountain Hills , 1 CA-CV 08- A property owner conducting min - court for a writ of mandamus to between 1994 and 1996 because 0519EL, 11/25/08. ing operations, who suffered dam - compel the secretary of state to … lifetime probation was unavailable A.R.S. § 14-3110 Precludes age due to a rise in the water table transmit the facsimiles.” This time for such an offense under applica - Damages for Loss of Enjoyment after a water district diverted water period applies to challenges to the ble Arizona law in effect at that of Life, but Does Not Preclude from a river so that surplus water Secretary’s failure to transmit sig - time. Prior to 1994 A.R.S. § 13- Recovery of Punitive Damages. could flow downstream for storage nature sheets, even when sufficient 604.01 gave Arizona courts the A.R.S. § 14-1310 precludes recov - in an underground storage facility, signatures were initially transmit - discretion to impose lifetime pro - ery of damages for loss of enjoy - could not assert taking or tort ted, but signatures were later bation for any dangerous crime ment of life. Arizona’s survival claims against the water district. deemed invalid in light of sampling against children (DCAC). statute precludes recovery for dam - South West Sand & Gravel, Inc. v. conducted after the Secretary However, in 1994 the Arizona ages for pain and suffering. The Central Arizona Water removed various signature sheets. Legislature amended § 13-604.01, statute includes damages for loss of Conservation Dist. , 1 CA-CV 07- Section 19-122(A) is not limited eliminating subsection (I) of the enjoyment of life as part of pain 0435, 11/10/08. only to refusals to accept and file an statute allowing lifetime probation and suffering. Punitive damages In a Condemnation Proceeding entire initiative petition or to trans - for second-degree DCAC offenses survive the death of both the plain - in Which the State’s Compliance mit to the county recorders facsim - (i.e., the category of offenses to tiff and the tortfeasor, and with A.R.S. § 12-1115(A) Is iles created by the Secretary under which attempted child molestation A.R.S. § 14-1310 does not pre - Challenged, the Landowner § 19-121.01(C). Note: In this belongs) and added language to clude recovery of punitive dam - Bears the Burden of Proof by case, the Supreme Court suggested A.R.S. § 13-907(E) allowing the ages. Quintero v. Rodgers , 1 CA- Clear and Convincing Evidence. that Title 19 deserves a thorough imposition of lifetime probation CV 07-0698, 11/18/08. Pursuant to A.R.S. § 12-1115(A), legislative reexamination because it for any sexual offense “included in “Narrow Form” Indemnity “Where land is required for public imposes onerous burdens on par - Chapter 14” of Title 13 (which Provision That Limits use, the state, or its agents in ties to litigation and election offi - precluded the imposition of life - Indemnity Obligation to the charge of such use, may survey and cials alike. Transportation time probation for an attempted Extent of Indemnitor’s Fault locate the land, but it shall be Infrastructure Moving Arizona’s offense under Chapter 10). Does Not Create Any Up-Front located in the manner which will Economy v. Brewer , CV-08-0275- Thereafter, in 1997 the Arizona Duty to Defend Suit Against be most compatible with the great - AP/EL, 11/18/08. Legislature specifically amended Indemnitee. An indemnity provi - est public good and the least pri - Liability-Limitation Clauses Do A.R.S. § 13-907(E) to allow for sion in a builder’s contract with a vate injury.” The landowner must Not Violate Public Policy, and the imposition of lifetime proba - subcontractor that obligated the prove by clear and convincing evi - Do Not Require Submission to a tion for any attempted sexual subcontractor to indemnify and dence that the state actor failed to Jury as an Assumption of Risk offense. State v. Peek , CR-07- hold harmless the builder against comply with A.R.S. § 12-1115(A). Defense. A contractual limitation 0412-PR, 11/3/08. all claims, damages, losses and A state actor could determine that of liability clause that does not expenses “to the extent caused in the public good of locating a water completely extinguish liability is COURT OF APPEALS CIVIL MATTERS whole or in part by any negligent pipeline through the middle of a not unenforceable as being against Referendum Petitions Must act or omission of the subcontrac - school campus outweighs the pri - public policy. The provision of the Strictly Comply with A.R.S. § tor,” provides for indemnification vate injury to the landowner. Arizona Constitution which states 19-101(A), Which Requires only to the extent that the Queen Creek Summit, LLC v. that “[t]he defense of … assump - Them to Identify the Principal builder’s damages and expenses are Davis , 1 CA-SA 08-0205, tion of risk shall, in all cases what - Provisions of the Challenged caused by the subcontractor’s neg - 10/30/08. ligence. This narrow form indem - nity provision imposes no duty to COURT OF APPEALS CRIMINAL MATTERS Thomas L. Hudson is a member at Osborn Maledon PA, where his practice defend a builder prior to a deter - A trial court does not err in focuses on civil appeals and appellate consulting with trial lawyers. He can be mination of the subcontractor’s promptly modifying the form of reached at [email protected], and is ably assisted with this column by Osborn fault. M.T. Builders, L.L.C. v. Fisher verdict in a second-degree bur - Maledon PA’s appellate group, which maintains AzAPP. AzAPP contributors include Roofing Inc ., 1 CA-CV 07-0590, glary of a residence case after the Jean-Jacques Cabou, Michael S. Catlett, Sharad Desai, Ronda R. Fisk, 11/13/08. jury retires to deliberate by Sara Greene, Mark P. Hummels, Jason J. Romero, Joseph N. Roth, A Landowner Does Not Have adding an interrogatory regard - Keith Swisher, Robert T. Weeks and Kristin L. Wright. Taking or Tort Claims Due to ing whether the subject burglary Patrick Coppen is a sole practitioner in Tucson. River’s Interference with Mining was sexually motivated because no Operation. Arizona has long rec - Arizona constitutional provi -

40 ARIZONA ATTORNEY FEBRUARY 2009 www.myazbar.org APPELLATE HIGHLIGHTS

sion, case law, or criminal judgment and [alleged illegal] sen - LOOK FOR statute/rule of procedure pro - tence.” If a sentencing court fails to MORE APPELLATE HIGHLIGHTS and hibits judges from correcting correct an illegal sentence within unnoticed omissions or errors in the required 60-day period, the SUPREME COURT verdict forms. A.R.S. § 13-118 illegal sentence becomes binding PETITIONS permits the state to “file a special and enforceable. State v. Bryant , 2 compiled by Barbara McCoy Burke, allegation of sexual motivation if CA-CR 2008-0058, 11/24/08. Staff Attorney, Arizona Supreme Court sufficient admissible evidence A trial court does not commit exists that would justify” such a reversible error per se by allowing finding “by a reasonable and the State on the first day of trial objective finder of fact.” When the prior to jury selection to amend State has properly alleged the sex - the indictment changing the the - AT WWW.MYAZBAR.ORG ual motivation of a crime since the ory of the underlying aggravated notice of the charges—not the of second-degree murder “applies return of the underlying indict - assault charge from “intentional - prosecution’s theory under which it to an unborn child in the womb at ment, and has previously dis - ly placing another in reasonable will proceed at trial.” Arizona any stage of its development” and cussed/requested a special inter - apprehension of imminent phys - courts have been quite liberal in that when the victim of a second rogatory on the issue giving a ical injury” to “intentionally, allowing amendments, especially degree murder is an unborn child defendant proper notice of the knowingly or recklessly causing related to technical defects which the offense is punishable as a “dan - allegation and related jury inter - any physical injury to another do not operate to change the gerous crime against children.” rogatory, a trial court may use its person,” when the State had just nature of the offence charged or Moreover, A.R.S. § 13- inherent power and discretion to discovered the basis for the amend - prejudice the defendant in any way, 604.01(L) also requires in such a adopt special, individualized pro - ment immediately prior to trial and as long as the amendment request - situation that the sentence cedures designed to promote the properly informed the defense, the ed by the state does not lead to a imposed for the “dangerous” sec - ends of justice in a given case, defense did not request a continu - charge of a different crime. State v. ond-degree murder of a child be including the prompt and remedi - ance, and the defense (given its Freeney , 1 CA-CR 07-0448, consecutive to any other sentence al revision of a form of verdict own statements on the record) was 11/20/08. imposed. While A.R.S. § 13- upon discovery of the oversight. not prejudiced by the amendment A trial court commits fundamen - 604.01(N)(1) requires that a State v. Harlow , 2CA-CR 2007- because it not only had appropriate tal error when it reads a stipula - defendant’s conduct against a child 0368, 11/24/08. notice of the facts alleged by the tion to the jury that is the func - victim be “aimed at, targeted or A trial court errs in modifying an State related to the amended tional equivalent of a guilty plea focused on” a victim under the age illegally lenient sentence (related indictment through both disclosed as to an offense in issue without of 15, such a requirement does not to the expungement of a defen - police reports describing the vic - first engaging the defendant in a mean that a dangerous crime dant’s DNA profile from the tim’s injuries, yet by the State’s Rule 17, ARIZ .R.C RIM .P. -type against children may not be com - Arizona DNA identification system dangerous nature offense allega - colloquy. Under such circum - mitted by reckless conduct mani - after designating their offenses as tion attached to the original indict - stances in which a stipulation is festing a conscious disregard of the misdemeanors given that the ment which required a finding at entered by the parties inherently risk to a particular unborn child recently amended form of A.R.S. § trial regarding “the intentional or admitting all the elements of a par - known by the defendant to be in 13-610 did not permit expunge - knowing infliction of serious physi - ticular offense, the trial court must utero (as opposed to a risk posed to ment even when the underlying cal injury upon” the alleged victim. properly advise a defendant of the the general public by generally offenses requiring the sample were The Sixth Amendment to the U.S. consequences of the stipulation reckless conduct with no specific designated misdemeanors) when Constitution regulates the charg - entered into and obtain her/his victim in mind). In other words, a the State did not properly appeal ing of a criminal offense, requiring knowing, intelligent and voluntary defendant need not have intended the illegal sentence, and the that “In all criminal prosecutions, waiver of all constitutional rights to harm an unborn fetus in order lower court did not enter its the accused shall enjoy the right … related thereto . State v. Allen , 1 for their conduct to be punishable order correcting the illegal sen - to be informed of the nature and CA-CR 07-0568, 11/18/08. under A.R.S. § 13-604.01, only to tence within 60 days of sentenc - cause of the accusation,” with A criminal defendant who is con - have been aware of its existence at ing as required by Rule 24.3, “[t]he purpose of an indictment or victed of second-degree murder the time of intentionally inflicting ARIZ .R.C RIM .P . First, the Arizona information [being] to give notice may be sentenced to an enhanced harm to the child’s mother result - Supreme Court has previously held of the offense charged so that the prison term under A.R.S. § 13- ing in the mother’s death. State v. in State v. Dawson that the state accused may prepare a defense.” In 604.01 (the Dangerous Crimes Gurrola , 1 CA-CR 07-0568, must appeal in order to challenge Arizona, Rule 13.2, Against Children statute) for 11/18/08. AZ AT an illegally lenient sentence. ARIZ .R.C RIM .P. , requires that an recklessly causing the death of a Secondly, although under Rule indictment “be a plain, concise woman known to be pregnant, * indicates a dissent 24.3, ARIZ .R.C RIM .P., “The court statement of the facts sufficiently resulting in the death of the may correct an unlawful sentence,” definite to inform the defendant of unborn child. A.R.S. §§ 13- such a correction must be done the offense charged,” yet the 1104(B) and 13-604.01(M), See additional Appellate Highlights and “within 60 days of the entry of indictment “need only contain a respectively, state that the offense Petitions for Review at www.myazbar.org

The Arizona Supreme Court and Arizona Court of Appeals maintain Web sites that are updated continually. Readers may visit the sites for the Supreme Court (www.supreme.state.az.us/opin), the Court of Appeals, Div. 1 (www.cofad1.state.az.us) and Div. 2 (www.appeals2.az.gov). Each Division of the Court of Appeals places PDF versions of memorandum decisions filed after July 1, 2007, on each Division’s respective Web site. Memorandum decisions will remain on each court’s site for approximately six months. Posting is only for informational purposes and does not constitute “publication” of the memorandum decisions as precedential authority or allow them to be cited in any court except as authorized by the rules of the Arizona Supreme Court. Detailed summaries of selected cases and other court news may be found at www.azapp.com .

42 ARIZONA ATTORNEY FEBRUARY 2009 www.myazbar.org APPELLATE HIGHLIGHTS WEB EXTRAS by Thomas L. Hudson, Osborn Maledon PA, and Patrick C. Coppen, Esq., Tucson —continued from the print edition of ARIZONA ATTORNEY , Feb. 2009

COURT OF APPEALS CRIMINAL MATTERS be considered. For the purposes set aside under A.R.S. § 13-907 timely objection by the defense) Burglary and theft-related con - of upholding on appeal both because both A.R.S. § 13-805 and due to a failure to make specific victions do not violate the corpus first-degree burglary and related the Victim’s Bill of Rights, respec - findings as to the existence delicti rule when the State pres - firearm theft-related convictions, tively, show a legislative and consti - and/or balancing of aggravating ents uncontradicted evidence of a criminal defendant has the req - tutional intent to expand a trial and mitigating factors when closely related crimes ( i.e., in uisite intent to permanently Court’s jurisdiction over restitu - Arizona statutes applicable to non- both time and circum - deprive the victim of a firearm tion. Although A.R.S. § 13-907(C) capital, first-degree murder convic - stance/physical location) to but - given admissions (and related allows a judge to set aside the judg - tions at the time of the re-sentenc - tress the defendant’s confession to inferences) that he had actually ment of guilt as to a particular ing permitted a trial court, in its the crimes in issue which was the stolen the victim’s firearm, and defendant and release them from all sole discretion, to impose a sen - only direct evidence supporting his intended to possibly kill the vic - penalties and disabilities resulting tence of natural life or limited life convictions therefore. Under the tim (as well as himself) with the from their conviction, victim resti - sentence (with the possibility of corpus delicti rule, a defendant may stolen weapon. A trial court does tution ( which has either been eventual release), and did not not be convicted of a crime based not err in denying a motion to agreed to under the terms of a plea require the trial court to return a on an uncorroborated confession depose a resident or occupant of a agreement or imposed at sentenc - special verdict or sentencing related without independent proof of the burglarized home because all ing) is constitutionally and statuto - findings. Although the sentencing body of the crime, whereby the occupants of a burglarized home rily mandated, and is not a penal - law in existence at the time of the State must provide independent are considered victims for the ty, disability or punishment original offense required such find - proof that a crime was actually purposes of the Arizona Victim exacted by the state . Rather, its ings to be made, no vested right committed and that someone was Witness Protection Act, preclud - purpose is remedial in nature and was created, whereby a procedural responsible for the offense before a ing their interview or deposition meant to make the victim(s) whole. change in the sentencing law prior defendant’s incriminating state - before trial. State v. Sarullo , 2 CA- State v. Zaputil , 2 CA-CR 2007- to the resentencing hearing could ments may be admitted. Although CR 2007-0065, 11/13/08. 0403, 11/10/08. be retroactively applied and did not the purpose of the rule is to pre - A trial court does not lose juris - A re-sentencing court does not violate any substantive or vested vent the conviction of a person diction to enter a restitution commit fundamental error under right(s) created by the earlier statu - based solely on a false confession award in the form of a civil judg - Article 2, Sec. 24 (Rights of tory requirement. State v. Williams , that may have resulted from a per - ment under A.R.S. § 13- Accused in Criminal 2 CA-CR 2008-0037, 11/7/08. son’s mental instability or improp - 805(A)(1) in favor of a victim Prosecutions) of the Arizona er police procedures, only a reason - after a defendant has both suc - Constitution by arguably pre - able inference of the corpus delicti cessfully completed his term of cluding an appeal as to a natural need exist before a confession may probation and had his conviction life sentence imposed (without * indicates a dissent

SUPREME COURT PETITIONS compiled by Barbara McCoy Burke, Staff Attorney, Arizona Supreme Court

The Arizona Supreme Court accepted review or jurisdiction of the that a claimant may comply with the following issues on Dec. 4, 2008*: statute merely by giving any single fact that arguably supports the amount, rather than giving the facts State v. Western Union Fin. Servs., CV 08-0241-PR; 1 CA-07-0178 supporting that amount, as the statute’s plain language requires? (Opinion), 2008 WL 2583853 Issues Presented: Merwyn C. Davis, et al. v. Agua Sterra Resources, 1 CA-CV 06- 1. Does the opinion expand Arizona’s jurisdiction to seize out-of- 0806 (Opinion), 217 Ariz. 386, 174 P.3d 298 state wire transfers in violation of due process and statutory limi - Issue Presented: tations. A. In Chino Grande’s Petition for Review: 2. Does the opinion permit extraterritorial regulation in violation of The issue is whether landowners, merely by virtue of their land the U.S. Constitution’s Interstate and Foreign Commerce ownership, have a property interest in the potential, future use of Clauses. groundwater such that they may sell their land but reserve the right to withdraw, transport and sell the underlying groundwater Shannon Backus; Rosemary Johnson v. State of Arizona, CV-08- at some time in the future. In upholding such a “reserved water 0284-PR; 1 CA-CV 07-0640 (Opinion), 2008 WL 2764601 right” (and reversing the trial court), the court of appeals serious - Issue Presented: ly misunderstood this Court’s cases and significantly departed 1. Section 12-821.01(A) requires claimants to state a specific from basic, well-accepted principles of Arizona law. amount for which their claims against a public entity can be set - B. In Davis’s Petition for Review: tled and it unequivocally requires them to provide “the facts sup - 1. Whether Arizona law recognized a groundwater right (a) to be porting that amount.” Did the court of appeals err by holding exercised only in the future, (b) dissociated from land owner -

ARIZONA ATTORNEY FEBRUARY 2009 www.myazbar.org SUPREME COURT PETITIONS —continued

ship, and/or (c) without demonstration of a quantified rea - 2. Is A.R.S. § 12-2604(A) a substantive sonable and beneficial use. rather than a procedural statute and, as 2. Whether and to what extent this Court’s pronouncements in such, constitutional? the Gila River series of opinions may be considered obiter dicta , or conversely must be considered stare decisis , in water Mayer Unified School District and Gadsden Elementary School rights controversies being litigated outside those adjudication District v. Mark Winkleman, CV 08-0225-PR; 2 CA-CV 2007- proceedings. 0126 (Opinion) Davis also identifies an additional issue presented to, but not Issues Presented: decided by, the Court of Appeals: Petition: Whether the Superior Court correctly rejected Agua Sierra’s 1. The Court of Appeals did precisely what the United States defenses and counterclaim for rescission and post-judgment legal Supreme Court has said that state courts may not do: it used a theories concerning the 1984 sale from Red Deer to Davis since state law doctrine to limit the application of a federal decision the “commercial water rights” claim was then still held by Red interpreting federal law. By applying Arizona’s retroactivity test— Deer’s predecessor in interest. [This issue refers to Agua Sierra’s a test that has been disapproved by the United States Supreme attempt to seek rescission of the conveyance of CF Ranch to Court for federal court decisions—the Court of Appeals refused Davis.] to enforce a fundamental provision of the Enabling Act, thereby depriving Arizona’s public schools of millions of dollars in com - The Arizona Supreme Court accepted review or jurisdiction of the pensation that they are guaranteed by that Act. following issues on Oct. 29 , 2008*: 2. Even though the appeal involved a Motion to Dismiss, the Court of Appeals based its refusal to enforce the Enabling Act Cain et al. v. Horne, CV 08-0189-PR; 2 CA-CV 07-0143 on speculative assertions that have no basis in fact and were not (Opinion) supported by any evidence in the record. Issues Presented: Presented to, but not decided by, the Court of Appeals: A. Petitioner/Defendant Horne Whether the cities of Peoria and Scottsdale could assert a bona Did the Court of Appeals err in holding that the School Choice fide purchaser defense. Programs violates article IX, § 10 of the Arizona Constitution, Additional Issues (Resp. ADOT; cross-petition issues if review even though the State does not appropriate any funds to either is granted): sectarian or nonsectarian private schools but instead grants schol - 1. Does the law recognize a claim by which petitioners can compel arships to certain disabled and foster children who choose to the Land Department to “collect compensation” from ADOT attend a qualified private school? for the 09 easements if those easements were “void ab initio”? Note: According to petitioners, the following issue was presented 2. Do petitioners have standing to assert a declaratory judgment to, but not decided by, the Court of Appeals: “Do the School claim that would cause the 09 easements and all corresponding Choice Programs violate the education clauses of the Arizona roadways and other improvements to revert to the State Land Constitution?” Department, and is such a claim justiciable? B. Petitioner/Intervenors Jessica Geroux et al. 3. Are petitioners’ claims time-barred given that this case was filed Whether the Court of Appeals erred in striking down educational nearly 40 years after Lassen II ? aid programs that allow parents of children with special needs to Cross-Petition (State Defendants): place those children in the public or private school that best 1. Can Arizona courts hold that declarations of ‘new’ federal law meets their children’s needs. are prospective only? Or are they instead required to presume C. Issues Presented By Cross-Petitioners/Plaintiffs Cain et al. that all federal civil decisions are retroactive and avoid inequities Whether two school voucher programs that have been enacted through principles of justiciability (including standing), statutes by the Arizona Legislature violate article II, § 12 of the Arizona of limitations, laches, res judicata, and/or remedies? Constitution, which prohibits public money from being applied 2. Should the court of appeals have upheld the dismissal of this case to religious instruction or to the support of a religious establish - on nonjusticiability grounds, including lack of standing? ment. 3. Should the court of appeals have upheld the dismissal of this case Note : According to cross-petitioners, the following issue was pre - on laches, or statute of limitations grounds?” sented to, but not decided by, the Court of Appeals: “Whether various provisions in the Arizona Constitution, in combination, Valerie M. v. Arizona Dep’t of Econ. Sec., CV 08-0252; 1 CA-JA implicitly prohibit the Legislature from providing publicly fund - 07-0033 (Opinion) ed education 2. other than through a system of public schools.” Issues Presented : 1. The juvenile court erred by refusing to give jury instructions and Seisinger v. Siebel, CV 08-0225-PR; 1 CA -CV 07-0266 form of verdicts stating that the standard of proof is “beyond a (Opinion) reasonable doubt” as to state grounds and best interest require - Issues Presented: ments in a termination of parental rights case governed by the 1. Is A.R.S. § 12-2604(A) (Supp. 2007) unconstitutional under the federal Indian Child Welfare Act. separation of powers clause of the Arizona Constitution because 2. Under the “law of the case[”] doctrine, the burden of proof of it conflicts with Arizona Rules of Evidence Rule 702 by setting “beyond a reasonable doubt” that was applied to the grounds stricter limits on qualifications for expert witnesses in medical for termination in father[‘s] case should apply to Mother’s jury malpractice cases? trial.

*Unless otherwise noted, the issues are taken verbatim from either the petition for review or the certified question .