Crosby-Garbotz v. Fell

• Citation: 246 Ariz. 54,434 P.3d 143
• Decision Date: 05 February 2019
• Docket Number: No. CR-18-0050-PR,CR-18-0050-PR
• Parties: Nikolas CROSBY-GARBOTZ, Petitioner, v. Hon. Howard P. FELL, Judge Pro Tempore of the Superior Court of the State of Arizona IN AND FOR the COUNTY OF PIMA, Respondent Judge, State of Arizona, Real Party in Interest.
• Court: Supreme Court of Arizona

246 Ariz. 54

434 P.3d 143

Nikolas CROSBY-GARBOTZ, Petitioner,

v.Hon. Howard P. FELL, Judge Pro Tempore of the Superior Court of the State of Arizona IN AND FOR the COUNTY OF PIMA, Respondent Judge,State of Arizona, Real Party in Interest.

No. CR-18-0050-PR

Supreme Court of Arizona.

Filed February 5, 2019

Richard L. Lougee, Tucson, and Bradley A. TenBrook, Markus W. Risinger (argued), Woodnick Law, PLLC, Phoenix, Attorneys for Nikolas Crosby-Garbotz

Barbara LaWall, Pima County Attorney, Jacob R. Lines (argued), Deputy County Attorney, Tucson, Attorneys for State of Arizona

Amy Knight, Kuykendall & Associates, Tucson, and Carol Lamoureux, Hernandez & Hamilton, PC, Tucson, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice

Timothy J. Agan, Lindsay Herf, Arizona Justice Project, Phoenix, Attorneys for Amicus Curiae Arizona Justice Project

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE BRUTINEL and JUSTICES PELANDER and BOLICK joined. JUSTICE TIMMER, joined by JUSTICES GOULD and LOPEZ, dissented.

CHIEF JUSTICE BALES, opinion of the Court:

¶1 Issue preclusion, also known as collateral estoppel, precludes relitigating an issue of fact in a later case when, in a previous case, the same issue was "actually litigated, a final judgment was entered, and the party against whom the doctrine is to be invoked had a full and fair opportunity to litigate." Chaney Bldg. Co. v. City of Tucson , 148 Ariz. 571, 573, 716 P.2d 28, 30 (1986). We hold that issue preclusion may apply in a criminal proceeding when an issue of fact was previously adjudicated in a dependency proceeding and the other elements of preclusion are met. We find that those elements are met in this case.

I.

¶2 On July 5, 2016, Nikolas Crosby-Garbotz ("Crosby") stayed home with his five-month-old baby (here referred to as "C.C.") while Lacy Crosby ("Mother") went to work. C.C. became fussy and later had a seizure and appeared dazed and went limp. Crosby called 911. C.C. was taken to the hospital, where she was diagnosed with subdural hematoma

, bilateral retinal hemorrhaging, and retinoschisis. She did not have a skull fracture or trauma to her neck or upper body.

¶3 Days later, the State, through the Department of Child Safety ("DCS"), took temporary custody of C.C., and on July 13, 2016, DCS filed a dependency petition alleging that C.C. was dependent as to Crosby because he abusively shook her to the point of causing bleeding in her brain and eyes. DCS also alleged C.C. was dependent as to Mother because she was unable to protect C.C. from Crosby.

¶4 On November 10, 2016, the dependency trial began and lasted for eleven nonconsecutive days, with the juvenile court taking the matter under advisement on February 16, 2017. While the dependency hearing was ongoing, a grand jury on December 15, 2016, returned an indictment against Crosby alleging child abuse under A.R.S. §§ 13-3623(A) and 13-3601. Specifically, the State charged Crosby with one count of child abuse alleging that:

on or about the 5th day of July, 2016, NIKOLAS CROSBY-GARBOTZ committed child abuse by intentionally or knowingly causing physical injury to C.C., a child less than fifteen years of age, under circumstances likely to produce death or serious physical injury, to wit: BY CAUSING BRAIN DAMAGE AND RETINAL BLEEDING AND RETINOSCHISIS

, in violation of A.R.S. § 13-3623(A)(1), 13-3601.

¶5 From July 2016 through March 2017, C.C. was not in Crosby’s or Mother’s care due to the pending dependency petition. On March 8, 2017, the juvenile court issued its ruling, dismissed the dependency petition as to both parents, and returned C.C. to Mother and Crosby’s care. The judge ruled that DCS had not met its burden of proof in establishing a dependency, expressly finding that "the Department has not met its burden of proving by a preponderance of the evidence that Mr. Crosby inflicted physical injury, impairment of bodily function, or disfigurement to [C.C.]" and "the Court has found that it is more likely than not that [Crosby] did not injure [C.C.]." The State did not appeal the dependency judgment.

¶6 In May 2017, Crosby moved to remand for a redetermination of probable cause in the criminal proceeding, which the trial court denied. Crosby then moved to dismiss, arguing that issue preclusion prevented the State from relitigating whether he had abused C.C. on July 5, 2016. After an evidentiary hearing, the trial judge denied the motion. Crosby sought special action relief from the court of appeals, which accepted jurisdiction but denied relief. Crosby-Garbotz v. Fell , 244 Ariz. 339, 340 ¶ 1, 342 ¶ 8, 418 P.3d 1112, 1113, 1115 (App. 2017).

¶7 Although the court of appeals noted that most elements of issue preclusion appeared to have been met, id. at 344 ¶¶ 15–17, 418 P.3d at 1117, it declined to apply preclusion, id. at 345 ¶ 18, 418 P.3d at 1118. Relying on cases from other jurisdictions, the court held in blanket fashion that preclusion should not apply in these circumstances because the state might forego dependency proceedings if it were precluded from relitigating issues in a later criminal proceeding, or it might instead present its criminal case in the dependency proceeding which "could unnecessarily complicate and delay the adjudication, placing an undue burden on the juvenile court system." Id. at 347 ¶ 28, 418 P.3d at 1120. The court also believed that "the distinction between juvenile and criminal proceedings would be impermissibly blurred." Id. Finally, the court refused to adopt a case-by-case approach to applying issue preclusion in this context. Id. ¶ 29.

¶8 We granted review because this case presents recurring issues of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution.

II.

¶9 "Application of issue preclusion is an issue of law, which we review de novo."

Picaso v. Tucson Unified Sch. Dist. , 217 Ariz. 178, 180 ¶ 6, 171 P.3d 1219, 1221 (2007).

¶10 Issue preclusion serves to "protect[ ] litigants from the burden of relitigating an identical issue" and to "promot[e] judicial economy by preventing needless litigation." Parklane Hosiery Co. v. Shore , 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). As our courts have noted, the doctrine seeks to avoid the basic unfairness associated with duplicative, harassing litigation. See Circle K Corp. v. Indus. Comm'n , 179 Ariz. 422, 426, 880 P.2d 642, 646 (App. 1993).

¶11 Arizona has long recognized that "when the second case is upon a different cause of action, the prior judgment or decree operates as an estoppel only as to matters actually in issue, or points controverted, upon the determination of which the judgment or decree was rendered." MacRae v. Betts , 40 Ariz. 454, 458, 14 P.2d 253 (1932) (citing Balt. S.S. Co. v. Phillips , 274 U.S. 316, 319, 47 S.Ct. 600, 71 L.Ed. 1069 (1927) ). This common law doctrine, now termed issue preclusion, applies when a fact "was actually litigated in a previous suit, a final judgment was entered, and the party against whom the doctrine is to be invoked had a full opportunity to litigate the matter and actually did litigate it" and the fact "was essential to the prior judgment." Chaney Bldg. Co. , 148 Ariz. at 573, 716 P.2d at 30 ; see also Restatement (Second) of Judgments § 27 (Am. Law Inst. 1982). In criminal cases, we also continue to require mutuality of parties or their privities as an additional element of issue preclusion, see State v. Edwards , 136 Ariz. 177, 188, 665 P.2d 59, 70 (1983), which is consistent with the Restatement’s more general issue preclusion rule which applies in a "subsequent action between the parties," see Restatement § 27. When one of these elements is not met, preclusion does not apply. See Kopp v. Physician Grp. of Ariz., Inc. , 244 Ariz. 439, 442 ¶¶ 14–15, 421 P.3d 149, 152 (2018) (affirming Chaney and refusing to give preclusive effect to stipulated dismissals with prejudice because no issues were "actually litigated").

¶12 No previous decision by this Court, however, has considered whether a finding in a dependency adjudication may have preclusive effect in a criminal prosecution. On this issue, the State and Crosby disagree on the application of two issue preclusion cases. In Ferris v. Hawkins , the court of appeals declined to apply issue preclusion from one administrative proceeding to a later, different administrative proceeding, finding the two proceedings involved distinct legal rights and remedies. 135 Ariz. 329, 332, 660 P.2d 1256, 1259 (App. 1983). Fitzgerald v. Superior Court In and For County of Maricopa involved a civil forfeiture proceeding in which the trial court found that the defendant had not possessed or used the items in question for any criminal activity, and the court of appeals held that issue preclusion barred the state’s relitigating those issues in a later prosecution. 173 Ariz. 539, 548, 845 P.2d 465, 474 (App. 1992).

¶13 Neither case is dispositive here. Fitzgerald involved a "quasi-criminal" forfeiture proceeding and a later criminal proceeding. 173 Ariz. at 545–46, 845 P.2d at 471–72. Ferris addressed successive administrative proceedings in which the state may not have had adequate opportunity and incentive to fully litigate the issue in question in the first proceeding. 135 Ariz. at 332 n.3, 660 P.2d at 1259 n.3. Neither case determined whether a finding in a non-criminal dependency adjudication could ever have preclusive effect in a criminal case; nor did either case adopt a categorical rule applying or rejecting preclusion in the circumstances presented here.

¶14 In contrast to Fitzgerald and Ferris , here the court of appeals relied on public policy to adopt a categorical rule barring issue preclusion. The court recognized that the California Court of Appeals reached a different conclusion in Lockwood v. Superior Court , 160 Cal.App.3d 667, 206 Cal.Rptr. 785 (1984), but noted that another California appellate panel had refused to follow Lockwood as...