Foor v. Smith
| Decision Date | 06 March 2018 |
| Docket Number | No. 1 CA-CV 17-0143,1 CA-CV 17-0143 |
| Citation | 416 P.3d 858 |
| Parties | Jennifer FOOR, Petitioner/Appellant, v. Hon. Richard SMITH, a Judge of the Phoenix Municipal Court, Respondent Judge, City of Phoenix, et al., Respondents/Real Parties in Interest. |
| Court | Arizona Court of Appeals |
Charles R. Johnson, Scottsdale, Counsel for Petitioner/Appellant
Office of the Phoenix City Attorney, Phoenix, By Ean P. White, Counsel for Respondents/Real Parties in Interest
OPINION
¶ 1 Jennifer Foor appeals the superior court’s order denying special action relief from an order of the Phoenix Municipal Court forfeiting Foor’s cats to the City of Phoenix (the "City"). Foor argues undisclosed impeachment material pertaining to the Phoenix Police officer involved in her case amounts to a Brady violation by the City and requests the forfeiture of her cats be vacated. See Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). For the following reasons, we hold that Brady and Giglio require disclosure of material information under these circumstances, but affirm the superior court’s denial of relief on other grounds. See Giglio v. United States , 405 U.S. 150, 153–54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
¶ 2 Foor kept approximately forty-one cats in the backyard of her son’s Phoenix home, where she resided. In October 2012, Traci Pepper, an emergency animal medical technician with the Arizona Humane Society ("AHS"), responded to Foor’s residence to check the condition of the cats at the request of law enforcement. Pepper, after noting health concerns and poor sanitation, spoke to Foor about how to better care for and house the cats.
¶ 3 After a series of cancelled or missed appointments, Pepper returned to the home on December 4, 2012, and observed severely degraded living conditions, including overcrowding, poor sanitation, and signs of illness among the cats. Pepper contacted her supervisor at AHS, who, upon arriving at the house, contacted law enforcement. Pepper and her supervisor then began removing the cats while waiting for law enforcement officers to arrive. Officer Cohane of the Phoenix Police Department arrived, oversaw the seizure of the cats by AHS, and issued a notice of seizure to Foor. On arrival at the local shelter, Dr. Bradley, an AHS veterinarian, oversaw the immediate treatment and subsequent long-term care of the cats.
¶ 4 The municipal court promptly held a post-seizure hearing in accordance with Phoenix City Code ("Code") section 8–3.02(A). The court concluded the seizure was proper and Foor appealed by special action to the Maricopa County Superior Court. On review, the superior court determined it lacked sufficient information as to the extent of the municipal court’s order and remanded the case for a forfeiture hearing in accordance with Code § 8–3.03.
¶ 5 The municipal court held a two-day evidentiary hearing in April and June of 2013 at which Pepper, Officer Cohane, Dr. Bradley, Foor, and Foor’s son testified. After lengthy testimony, the court concluded the cats were cruelly neglected based upon the lack of shelter and sanitary conditions, and should be forfeited to the City. See Code § 8–3.03(B).
¶ 6 Foor then resumed her special action in the superior court, which denied her petition. On appeal, this Court affirmed the decision of the superior court. See Foor v. Smith , 1 CA–CV 14–0089, 2015 WL 1516528 (Ariz. App. Apr. 2, 2015) (mem. decision) (" Foor I "). Foor next petitioned the Arizona Supreme Court, which denied review.
¶ 7 Foor filed several additional requests for a stay of the forfeiture order and relief from judgment, all of which the superior court denied. Foor then filed an amendment to her original special action complaint alleging a Brady violation in the underlying civil forfeiture proceeding. The superior court granted review of the amended special action complaint and denied the requested relief on the merits, noting that Brady is inapplicable in civil cases. Foor now appeals that decision.
¶ 8 We review the denial of relief in a special action before the superior court for abuse of discretion. Stoudamire v. Simon , 213 Ariz. 296, 297, ¶ 3, 141 P.3d 776, 777 (App. 2006). We view the facts in the light most favorable to upholding the court’s ruling. McCown v. Patagonia Union High Sch. Dist. , 129 Ariz. 127, 127, 629 P.2d 94, 94 (App. 1981). However, we review questions of law de novo . Whiteco Outdoor Advert. v. City of Tucson , 193 Ariz. 314, 316–17, 972 P.2d 647, 649–50 (App. 1998).
¶ 9 Foor’s primary argument on appeal is that the City should be required to disclose exculpatory and impeachment information in its possession in civil forfeiture cases. State law authorizes municipal forfeiture proceedings based on "the violation of an ordinance." Ariz. Rev. Stat. ("A.R.S.") § 22–406. While the instant case arises from a violation of the Phoenix animal cruelty and neglect ordinance, the disclosure question we confront is not exclusive to that context.
¶ 10 In criminal proceedings, Giglio and Brady require the disclosure of impeachment or exculpatory evidence potentially useful to the defense. Giglio , 405 U.S. at 153–54, 92 S.Ct. 763 ; Brady , 373 U.S. at 87, 83 S.Ct. 1194. As an issue of first impression, Foor seeks to extend Brady ’s disclosure requirements to "quasi-criminal" civil forfeiture actions. Foor points to no authority for the extension of these disclosure requirements, but instead argues Brady and Giglio must be extended as a matter of due process. Although Foor rests her argument on Brady , the information at issue is impeachment evidence rather than exculpatory evidence. Thus, we characterize Foor’s claim as a potential Giglio violation.
¶ 11 Foor identifies three pieces of potential Giglio evidence on appeal, asserting her Giglio argument is not waived because the evidence is newly discovered. First, Foor points to a 1994 disciplinary report regarding Officer Cohane’s honesty in a 1993 incident. However, Foor admits she received this information from the City during the City’s parallel criminal prosecution. Foor had actual knowledge of the 1994 report, since at least August 2013, and did not raise the issue at the superior court or on appeal in Foor I . Thus, Foor waived any argument related to the 1994 discipline. See Van Loan v. Van Loan , 116 Ariz. 272, 274, 569 P.2d 214, 216 (1977). Second, Foor relies upon Officer Cohane’s 2004 placement on the Maricopa County Attorney’s Office’s ("MCAO") list of officers with potential violations discoverable under Brady (the " Brady list"). Foor alleges she obtained this information in 2016 and nothing in the record indicates otherwise. Thus, Foor’s arguments related to the 2004 Brady list placement are timely and have not been waived. Finally, Foor asserts Officer Cohane was involved in additional misconduct in 2014. Because this alleged misconduct occurred after the forfeiture of Foor’s cats, and thus after any impeachment opportunity, it is irrelevant and we do not consider it further. Before assessing the materiality of Foor’s alleged Giglio material, we must first determine whether Brady and Giglio apply. See United States v. Agurs , 427 U.S. 97, 112–13, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
¶ 12 The United States Supreme Court has long held that prosecutors in criminal cases cannot deliberately or inadvertently suppress evidence favorable to the accused in a criminal trial. See Brady , 373 U.S. at 87, 83 S.Ct. 1194 ; see also Mooney v. Holohan , 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935). This has given rise to a prosecutorial duty to disclose exculpatory and impeachment evidence in criminal cases. Giglio , 405 U.S. at 153–54, 92 S.Ct. 763. These requirements arise from the due process clause and are designed to ensure criminal trials are fair. Weatherford v. Bursey , 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). Nothing in Brady created a general constitutional right to discovery in criminal cases. Id. Indeed, defendants in criminal cases are generally entitled to only limited discovery. See Degen v. United States , 517 U.S. 820, 825, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996) ; see also Ariz. R. Crim. P. 15. Moreover, Brady does not automatically require a new trial when omitted evidence is discovered. See Agurs , 427 U.S. at 108, 96 S.Ct. 2392. Instead, a new trial is required only when material information unknown to the defense has been withheld. Id. at 103, 96 S.Ct. 2392.
¶ 13 Brady has rarely been extended beyond criminal cases, and never by this Court. The Arizona Supreme Court has previously held that criminal defendants are entitled to some discovery, even when otherwise denied by local rules. See State ex rel. Purcell v. City Court , 112 Ariz. 517, 518, 543 P.2d 1146 (1975) (). As with criminal cases at the time of Purcell , the Phoenix Municipal Court allows no pretrial discovery in civil cases, including forfeiture cases. City Ct. Local Prac. and Proc. Rules, Phoenix, 2.10. Thus, absent mandatory disclosure, private investigation, or disclosure incident to a parallel proceeding, a defendant in a forfeiture action before the Phoenix Municipal Court has no method of obtaining exculpatory or impeachment information known to the City.
¶ 14 In contrast, civil forfeiture cases in the superior court are subject to the disclosure and discovery requirements provided by the Arizona Rules of Civil Procedure. See A.R.S. §§ 13–4310 to 4312; see generally Ariz. R. Civ. P. 26 – 37. Similarly, civil cases brought in justice court are subject to extensive discovery and disclosure. See generally Justice Ct. Civ. Proc. Rules,...
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