Ariz. Attorneys for Criminal Justice v. Ducey

• Decision Date: 02 November 2022
• Docket Number: CV-17-01422-PHX-SPL
• Parties: Arizona Attorneys for Criminal Justice, et al., Plaintiffs, v. Doug Ducey, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Arizona Attorneys for Criminal Justice, et al., Plaintiffs,
v.
Doug Ducey, et al., Defendants.

No. CV-17-01422-PHX-SPL

United States District Court, D. Arizona

November 2, 2022

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Honorable Steven P. Logan United States District Judge

On May 8, 2017, Plaintiffs filed this action challenging the constitutionality of A.R.S. § 13-4433(B). (Doc. 1). In the operative Second Amended Complaint, Plaintiffs allege two counts-(1) violation of the First Amendment, and (2) unconstitutional overbreadth-against Maret Vessella, Chief Bar Counsel of the State Bar of Arizona;^[1]Colonel Helston Silbert, Director of the Arizona Department of Public Safety, in his official capacity; and Mark Brnovich, Attorney General of the State of Arizona, in his official capacity. (Doc. 150 ¶¶ 25-27, 87-99; Doc. 203). Plaintiffs seek declaratory and injunctive relief, as well as reasonable costs and attorneys' fees. (Doc. 150 at 20). Defendants timely answered the Second Amended Complaint on May 27, 2022. (Docs. 230, 231, 233).

This case arises under the United States Constitution and is brought pursuant to 42 U.S.C. § 1983. The case is thus within this Court's jurisdiction under 28 U.S.C. §§ 1331

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and 1343. The Court may grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. Venue is proper in this District pursuant to 28 U.S.C. § 1391. (Doc. 150 ¶¶ 12-15; Doc. 253 at 3-4).

On August 22, 2022, without objection from the parties (Doc. 246), the Court set a consolidated Preliminary Injunction Hearing and Bench Trial pursuant to Fed.R.Civ.P. 65(a)(2). (Doc. 247). The Hearing and Bench Trial was held before this Court on September 22, 2022. (Doc. 258). The Court has carefully considered the briefing of the Motion for Preliminary Injunction (Docs. 238, 240, 242-44); the Joint Pretrial Statement (Doc. 253); the proposed findings of fact and conclusions of law (Docs. 254, 255); the testimony received (Docs. 264, 266); the exhibits admitted into evidence; and the posttrial supplemental briefing (Docs. 267, 268). The Court now makes the following Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52(a) and LRCiv 52.1:

FINDINGS OF FACT

The Parties

1. Plaintiff Arizona Attorneys for Criminal Justice (“AACJ”) is an organization made up of criminal defense attorneys and others associated with criminal defense work in Arizona. (Doc. 264 at 77:7-9). AACJ was formed to represent the interests of the criminal defense bar. (Doc. 264 at 77:9-14).

2. Plaintiff John Canby is a member of the State Bar of Arizona and a practicing attorney. (Doc. 264 at 130:22-24). He is currently employed by the Maricopa County Public Defender's Office and works on capital cases. (Doc. 264 at 132:415).

3. Plaintiff Christopher Dupont is a member of the State Bar of Arizona and a practicing attorney. (Doc. 266-2 at 66:16-20). He works in private practice doing “almost entirely” criminal law. (Doc. 266-2 at 70:19-71:1).

4. Plaintiff Jeffrey A. Kirchler is a member of the State Bar of Arizona and a practicing attorney. (Doc. 266-3 at 14:10-13). He is currently employed by the

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Maricopa County Public Defender's Office and works on capital cases. (Doc. 266-3 at 17:17-18, 17:24-18:2).

5. Plaintiff Richard L. Lougee is a member of the State Bar of Arizona and a practicing attorney. (Doc. 266-3 at 29:11-15). He has previously worked as a public defender and is currently in private practice doing exclusively criminal defense work. (Doc. 266-3 at 32:19-33:5).

6. Plaintiff Richard D. Randall is a member of the State Bar of Arizona and a practicing attorney. (Doc 266-3 at 54:21-25). He has worked as a public defender since 2005. (Doc. 266-3 at 56:18-23).

7. Plaintiff Rich Robertson is a private investigator licensed by the State of Arizona. (Doc. 264 at 113:15-16). Most of his work involves conducting fact investigations for criminal defense attorneys. (Doc. 264 at 114:16-21). In every criminal defense case that he has worked, he has worked on behalf of and at the direction of the criminal defendant's criminal defense attorney. (Doc. 264 at 126:23-127:6).

8. Defendant Mark Brnovich is the Attorney General and chief legal officer of the State of Arizona (the “State”) and is sued in his official capacity. (Doc. 150 ¶ 27; Doc. 230 ¶ 27).

9. Defendant Maret Vessella is the Chief Bar Counsel of the State Bar of Arizona. (Doc. 150 ¶ 25; Doc. 233 ¶ 25).

10. Defendant Heston Silbert is the Director of the Arizona Department of Public Safety (“DPS”) and is sued in his official capacity. (Doc. 150 ¶ 26; Doc. 203; Doc. 231 ¶ 26).

The Statute

11. In 1991, the Arizona Legislature enacted the Victims' Rights Implementation Act, A.R.S. §§ 13-4401 to -4443. Victims' Rights Implementation Act, ch. 229, 1991 Ariz. Sess. Laws 1137; (Trial Ex. 107).

12. Section 13-4433(B) of the Victims' Rights Implementation Act (the “Statute”)-

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which is the only provision Plaintiffs challenge in this case-provides as follows

The defendant, the defendant's attorney or an agent of the defendant shall only initiate contact with the victim through the prosecutor's office. The prosecutor's office shall promptly inform the victim of the defendant's request for an interview and shall advise the victim of the victim's right to refuse the interview.

13. Other relevant subsections of A.R.S. § 13-4433 state the following:

(A) Unless the victim consents, the victim shall not be compelled to submit to an interview on any matter, including any charged criminal offense witnessed by the victim and that occurred on the same occasion as the offense against the victim, or filed in the same indictment or information or consolidated for trial, that is conducted by the defendant, the defendant's attorney or an agent of the defendant. . . .

(C) The prosecutor shall not be required to forward any correspondence from the defendant, the defendant's attorney or an agent of the defendant to the victim or the victim's representative.

(D) If the victim consents to an interview, the prosecutor's office shall inform the defendant, the defendant's attorney or an agent of the defendant of the time and place the victim has selected for the interview. If the victim wishes to impose other conditions on the interview, the prosecutor's office shall inform the defendant, the defendant's attorney or an agent of the defendant of the conditions. The victim has the right to terminate the interview at any time or to refuse to answer any question during the interview. The prosecutor has standing at the request of the victim to protect the victim from harassment, intimidation or abuse and, pursuant to that standing, may seek any appropriate protective court order. . . .

(G) This section applies to the parent or legal guardian of a minor child who exercises victims' rights on behalf of the minor child. . . .

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14. The Victims' Rights Implementation Act defines “victim” as follows:

[A] person against whom the criminal offense has been committed, including a minor, or if the person is killed or incapacitated, the person's spouse, parent, child, grandparent or sibling, any other person related to the person by consanguinity or affinity to the second degree or any other lawful representative of the person, except if the person or the person's spouse, parent, child, grandparent, sibling, other person related to the person by consanguinity or affinity to the second degree or other lawful representative is in custody for an offense or is the accused.

A.R.S. § 13-4401(19).

15. The Victims' Rights Implementation Act defines “defendant” as “a person or entity that is formally charged by complaint, indictment or information of committing a criminal offense.” A.R.S. § 13-4401(9).

16. A.R.S. § 13-4402(A) provides as follows:

[T]he rights and duties that are established by this chapter arise on the arrest or formal charging of the person or persons who are alleged to be responsible for a criminal offense against a victim. The rights and duties continue to be enforceable pursuant to this chapter until the final disposition of the charges, including acquittal or dismissal of the charges, all postconviction release and relief proceedings and the discharge of all criminal proceedings relating to restitution. If a defendant is ordered to pay restitution to a victim, the rights and duties continue to be enforceable by the court until restitution is paid.

The victim's right to refuse a defense interview, however, remains enforceable beyond a final disposition, except in cases involving a dismissal with prejudice or an acquittal. A.R.S. § 13-4433(H).

17. In sum, the Statute on its face prohibits an attorney or other agent working on behalf of a defendant in an ongoing criminal proceeding in Arizona from initiating direct contact with the victim of the alleged crime, including the

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parents or guardians of a minor victim and the second-degree relatives of a victim who is killed or incapacitated. Instead, the attorney or agent must initiate contact through the prosecutor, who must promptly inform the victim of the request.

18. The “Legislative intent” section of the Victims' Rights Implementation Act reads as follows:

The legislature recognizes that many innocent persons suffer economic loss and personal injury or death as a result of criminal acts. It is the intent of the legislature of this state to:

1. Enact laws that define, implement, preserve and protect the rights guaranteed to crime victims by article II, section 2.1, Constitution of Arizona.

2. Ensure that article II, section 2.1, Constitution of Arizona, is fully and fairly implemented and that all crime victims are provided with basic rights of respect, protection, participation and healing of their ordeals.

3. Ensure at all

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