Devries v. State
| Decision Date | 22 May 2008 |
| Docket Number | No. 1 CA-CV 07-0399.,No. 1 CA-CV 07-0424.,1 CA-CV 07-0399.,1 CA-CV 07-0424. |
| Citation | 219 Ariz. 314,198 P.3d 580 |
| Parties | Theresa DeVRIES, surviving parent of Lee DeVries, Deceased, Plaintiff/Appellant, v. STATE of Arizona, a body politic, and Arizona Department of Transportation, a governmental department of the State of Arizona, Defendants/Appellees. Christie A. Green; Dawn Wyland; Eric Meyer; Rae J. Waters; The Professional Group Public Consulting, Inc., an Arizona corporation, Plaintiffs/Appellants, v. Gale Garriott, in his official capacity as Director of the Arizona Department of Revenue, Defendant/Appellee. Stella Gomez; Cecilia Hernandez; Stefanie Ortega; Kerin Zimmerman; Arizona School Choice Trust, Inc., a private non-profit corporation, Intervenor-Defendants/Appellees. |
| Court | Arizona Court of Appeals |
Sacks Tierney, PA By Marvin S. Cohen, Scottsdale, Arizona School Boards Association By Christopher P. Thomas, Arizona Center for Law in the Public Interest By Timothy M. Hogan, Phoenix, Attorneys for Plaintiffs/Appellants in No. 1 CA-CV 07-0424.
Terry Goddard, Attorney General By Michael F. Kempner, Assistant Attorney General, and Lisa A. Neuville, Assistant Attorney General, Phoenix, Attorneys for Defendant/Appellee In No. 1 CA-CV 07-0424.
Institute for Justice Arizona Chapter By Timothy D. Keller, Tempe, Institute for Justice Virginia Branch By William H. Mellor, Arlington, VA, Law Offices of Thomas A. Zlaket, PLLC By Thomas A. Zlaket, Tucson, Attorneys for Intervenor-Defendants/Appellees in No. 1 CA-CV 07-0424.
Alliance Defense Fund Law Center By Benjamin W. Bull and Gary S. McCaleb and Byron Jeffords Babione, Scottsdale, Attorneys for Amicus Curiae in No. 1 CA-CV 07-0424.
¶ 1 "In any proceeding in which a state statute, ordinance, franchise or rule is alleged to be unconstitutional," Arizona Revised Statutes ("A.R.S.") section 12-1841(A) (Supp.2007) requires a party to serve the Attorney General, and, pursuant to a 2006 amendment, the Speaker of the House of Representatives and the President of the Senate, with "a copy of the pleading, motion or document containing the allegation at the same time the other parties in the action are served." The issues we address in this opinion are, first, whether the 2006 amendment requiring service on the Speaker and President is retroactive, that is, applicable to lawsuits filed before its effective date; second, whether the statute requires a party raising a facial constitutional challenge on appeal to effectuate service if it has not already done so in the action; and third, whether the statute requires service in non-declaratory judgment actions. We hold the 2006 amendment is retroactive and, therefore, applies to actions filed before its effective date; a party raising a facial constitutional challenge on appeal must comply with the service requirements if it has previously failed to do so; and the statute requires service in non-declaratory judgment actions if a party challenges the facial constitutionality of a "state statute, ordinance, franchise or rule."
¶ 2 In 1927, Arizona enacted the Uniform Declaratory Judgments Act ("Uniform Act"). A.R.S. tit. 12, ch. 10, art. 2 (Supp. 2007). Section 11 of the Uniform Act, adopted in Arizona without change, read as follows:
When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the Attorney General of the State shall also be served with a copy of the proceeding and be entitled to be heard.
1927 Ariz. Sess. Laws, ch. 10, § 11 (Reg. Sess.). As recognized by the Arizona Supreme Court, "[t]he object of this requirement is to protect the state and its citizens should the parties be indifferent to the outcome of the litigation." Ethington v. Wright, 66 Ariz. 382, 388, 189 P.2d 209, 213 (1948).1 In addition to Arizona, 35 states have adopted Section 11, or some variation thereof, of the Uniform Act to require service on the Attorney General. A.R.S. tit. 12, ch. 10, art. 2.
¶ 3 In 1996, the Legislature amended Section 11, which by then had been codified at A.R.S. § 12-1841. 1996 Ariz. Sess. Laws, ch. 202, § 1 (2d Reg.Sess.). Although the Legislature left the first sentence of the codified version of Section 11 unchanged, it made several substantive changes and additions to A.R.S. § 12-1841 to specify what must be served on the Attorney General and when. As amended, Section 11 became subsection A and read as follows:
When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party and shall be entitled to be heard. In any proceeding in which a state statute, ordinance, franchise or rule is alleged to be unconstitutional, the attorney general shall be served with a copy of the pleading, motion or document containing the allegation at the same time the other parties in the action are served and shall be entitled to be heard.
¶ 4 The Legislature added two subsections to the statute. Subsection B directed the party serving the Attorney General to attach a "notice of claim of unconstitutionality ... to the pleading, motion or document as the cover page," and specified the information to be included: contact information for the parties, information about the case and its status, a brief statement of the basis for the claim of unconstitutionality, and a brief description of the proceeding. A.R.S. § 12-1841(B) (2003).2 Subsection C required a court, if the Attorney General had not been timely served pursuant to subsection A, to "vacate any finding of unconstitutionality" and "give the attorney general a reasonable opportunity to prepare and be heard." A.R.S. § 12-1841(C) (2003).
¶ 5 In 2006, the Legislature further amended A.R.S. § 12-1841(A) to require service on the Speaker and President in addition to the Attorney General ("2006 amendment"). 2006 Ariz. Sess. Laws, ch. 348, § 1 (2d Reg. Sess.). Subsections B and C were also amended to include references to the Speaker and President. Id. Without an emergency clause or an applicable retroactivity clause,3 the 2006 amendment became effective on September 21, 2006 ("effective date"). Pursuant to the 2006 amendment, A.R.S. § 12-1841(A) (Supp.2007) now reads as follows:
When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party and shall be entitled to be heard. In any proceeding in which a state statute, ordinance, franchise or rule is alleged to be unconstitutional, the attorney general and the speaker of the house of representatives and the president of the senate shall be served with a copy of the pleading, motion or document containing the allegation at the same time the other parties in the action are served and shall be entitled to be heard.
¶ 6 In November 2003, Appellant DeVries sued the State for wrongful death. The State, represented by the Attorney General, moved for summary judgment and, inter alia, argued it was entitled to qualified immunity under A.R.S. § 12-820.02(A)(7) (2003). In a combined response and cross-motion for summary judgment filed before the effective date of the 2006 amendment, DeVries argued this subsection of the qualified immunity statute was unconstitutional. The court denied the cross-motion and ruled the State could raise the qualified immunity defense at trial. The jury returned a verdict in favor of the State. On April 26, 2007, after the effective date, DeVries appealed the jury's verdict, and on appeal, again challenged the constitutionality of A.R.S. § 12-820.02(A)(7).
¶ 7 On September 19, 2006, two days before the effective date, Appellant Green, joined by others, filed a complaint for declaratory and injunctive relief against Gale Garriott in his official capacity as the director of the Arizona Department of Revenue. Green alleged A.R.S. § 43-1183 (Supp.2007), authorizing corporate tuition tax credits, violated the Arizona and United States constitutions. Parents of children eligible to benefit from the tax credit intervened. Garriott, represented by the Attorney General, and the intervenors each moved to dismiss Green's complaint for failure to state a claim. The court granted both motions to dismiss. On May 14, 2007, after the effective date, Green appealed and, on appeal, reasserted the constitutional challenges.
¶ 8 On our own motion, we ordered the parties in each appeal to brief whether A.R.S. § 12-1841 applied to their appeals. After considering the parties' briefing, we ordered DeVries and Green to serve the Speaker and President with copies of all appellate briefs filed in their respective appeals and to comply with the requirements of A.R.S. § 12-1841(B).4 We also consolidated their appeals for the sole purpose of addressing the application of A.R.S. §...
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...opinion involving the parties to this appeal, we addressed the applicability of A.R.S. § 12-1841 (Supp.2008). See DeVries v. State, 219 Ariz. 314, 198 P.3d 580 (App.2008). That opinion did not address the substantive issues we resolve 2. The dissent argues that because Appellants attached v......
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