Planned Parenthood Center of Tucson, Inc. v. Marks, No. 2

CourtCourt of Appeals of Arizona
Writing for the CourtHATHAWAY
Citation17 Ariz.App. 308,497 P.2d 534
Decision Date30 May 1972
Docket NumberCA-CIV,No. 2
PartiesPLANNED PARENTHOOD CENTER OF TUCSON, INC., a corporation, et al., Petitioners, v. Hon Jack G. MARKS, Judge of the Superior Court of the State of Arizona, et al., Respondents, and D. E. Clark, M.D., et al., Amici Curiae. 1222.

Page 534

497 P.2d 534
17 Ariz.App. 308
PLANNED PARENTHOOD CENTER OF TUCSON, INC., a corporation, et al., Petitioners,
v.
Hon Jack G. MARKS, Judge of the Superior Court of the State of Arizona, et al., Respondents,
and
D. E. Clark, M.D., et al., Amici Curiae.
No. 2 CA-CIV 1222.
Court of Appeals of Arizona, Division 2.
May 30, 1972.
Rehearing Denied June 29, 1972.

Miller, Pitt & Feldman, P.C. by Stanley G. Feldman, Mrs. Elaine S. Pollack, Tucson, for petitioners.

Gary K. Nelson, Atty. Gen., by John O'Dowd, Asst. Atty. Gen., and Rose Silver, Pima County Atty., by John R. Neubauer, [17 Ariz.App. 309]

Page 535

Chief Civil Deputy County Atty., Tucson, for respondents Jack G. Marks, Rose Silver and Gary K. Nelson.

Murphy, Vinson & Hazlett by John U. Vinson, Tucson, for respondent Bloom.

Merchant, Lohse & Bloom by William A. Riordan, tucson, for amici curiae.

HATHAWAY, Judge.

This is a petition for extraordinary relief under the rules pertaining to special actions. The Planned Parenthood Center of Tucson, Inc., is a non-profit corporation engaged in providing family planning services in Tucson. Petitioner, Jane Roe, is a resident of Pima County and appears through a fictitious name. She is an unmarried young woman who was pregnant, but who has, since becoming a petitioner herein, obtained an abortion in another state. It was represented to this court at the time of the oral argument that there were sound medical reasons for an aboration, even though possibly not necessary to save her life. She was substituted as a petitioner in place of a predecessor petitioner, Jane Doe, a pregnant young woman who also wanted an abortion, apparently in violation of the Arizona statutes, but who obtained an out-of-state abortion pending this litigation. The other petitioners are licensed medical practitioners, specializing in obstetrics and gynecology in Pima County.

Petitioners are plaintiffs in an action filed in the Superior Court of Pima County wherein they seek a declaratory judgment under A.R.S. § 12--1831 et seq., (1956) adjudicating the following sections of the Arizona Revised Statutes, relating to abortion, to be void for unconstitutionality under the constitutions of the United States and the State of Arizona:

' § 13--211. Definition; punishment

A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.

§ 13--212. Soliciting abortion; punishment; exception

A woman who solicits from any person any medicine, drug or substance whatever, and takes it, or who submits to an operation, or to the use of any means whatever, with intent thereby to procure a miscarriage, unless it is necessary to preserve her life, shall be punished by imprisonment in the state prison for not less than one nor more than five years.

§ 13--213. Advertising to produce abortion or prevent conception; punishment

A person who wilfull writes, composes or publishes a notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or for prevention of conception, or who offers his services by a notice, advertisement or otherwise, to assist in the accomplishment of any such purposes, is guilty of a misdemeanor.'

Respondents, Gary K. Nelson, Attorney General of the State of Arizona, and Rose Silver, County Attorney of Pima County, moved the court to dismiss the action for the reason that the complaint 'does not set forth a justiciable controversy.' The motion was argued to the Honorable Richard N. Roylston on September 9, 1971, and denied on the same date. Thereafter, the matter was tried on the merits to the Honorable Jack Marks, who, through a memorandum opinion dated April 5, 1972, dismissed the action for lack of a justiciable controversy. The memorandum opinion and order of dismissal was thereafter rescinded on April 12, 1972. On May 9, 1972, after petitioner Jane Roe had procured an out-of-state abortion, the April 5th order was reinstated and amended dismissing this cause because 'the Complaint does not state a justiciable controversy because the plaintiffs did not allege that they

Page 536

[17 Ariz.App. 310] . . . are being prosecuted for violation of A.R.S. §§ 13--211, 13--212, or 13--213 . . . or that the defendants . . . have threatened prosecution of the plaintiffs . . . for violation of (said statutes).' (Emphasis added)

In their petition filed in this court, petitioners complain that after the case was tried on the merits and submitted, the court dismissed it Ex mero motu without notice to the parties. They contend that the dismissal was arbitrary and in excess of the court's jurisdiction in that the court failed to exercise discretion, as was its duty, to decide the case on the merits.

The Uniform Declaratory Judgments Act provides, inter alia:

' § 12--1831. Scope

Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed . . . The declaration could be claimed . . . The declaration in form and effect; and such declarations shall have the force and effect of a final judgment or decree.

§ 12--1832. Power to construe, etc.

Any person . . . whose rights, status or other legal relations are affected by a statute . . . may have determined any question of construction or validity arising under the . . . statute . . . and obtain a declaration of rights, status or other legal...

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38 practice notes
  • Brush & Nib Studio, LC v. City of Phx., No. CV-18-0176-PR
    • United States
    • Supreme Court of Arizona
    • September 16, 2019
    ...the parties. Estate of Stewart , 230 Ariz. at 484 ¶ 12, 286 P.3d at 1093 ; see Planned Parenthood Ctr. of Tucson, Inc. v. Marks , 17 Ariz. App. 308, 312–13, 497 P.2d 534 (1972) (stating that challengers of statute forbidding abortions under certain circumstances were not required to wait fo......
  • Mayer Unified School Dist. v. Winkleman, No. 2 CA-CV 2007-0126.
    • United States
    • Court of Appeals of Arizona
    • May 19, 2008
    ...until contingency failed to occur and court entered judgment against appellees). See also Planned Parenthood Ctr. of Tucson v. Marks, 17 Ariz.App. 308, 310, 497 P.2d 534, 536 (1972) (action for declaratory judgment requires "actual controversy which must be real and not theoretical"); Land ......
  • Brush & Nib Studio, LC v. City of Phx., No. CV-18-0176-PR
    • United States
    • Supreme Court of Arizona
    • September 16, 2019
    ...controversy between the parties. Estate of Stewart, 230 Ariz. at 484 ¶ 12; see Planned Parenthood Ctr. of Tucson,Page 13 Inc. v. Marks, 17 Ariz. App. 308, 312-13 (1972) (stating that challengers of statute forbidding abortions under certain circumstances were not required to wait for crimin......
  • Fann v. State, CV-21-0058-T/AP
    • United States
    • Supreme Court of Arizona
    • August 19, 2021
    ...immediate and present controversy with reference to the validity of such a statute." Planned Parenthood Ctr. of Tucson, Inc. v. Marks , 17 Ariz. App. 308, 312, 497 P.2d 534, 538 (1972) (citation omitted). ¶13 Invest in Education argues that because school districts have not yet received or ......
  • Request a trial to view additional results
38 cases
  • Brush & Nib Studio, LC v. City of Phx., No. CV-18-0176-PR
    • United States
    • Supreme Court of Arizona
    • September 16, 2019
    ...the parties. Estate of Stewart , 230 Ariz. at 484 ¶ 12, 286 P.3d at 1093 ; see Planned Parenthood Ctr. of Tucson, Inc. v. Marks , 17 Ariz. App. 308, 312–13, 497 P.2d 534 (1972) (stating that challengers of statute forbidding abortions under certain circumstances were not required to wait fo......
  • Mayer Unified School Dist. v. Winkleman, No. 2 CA-CV 2007-0126.
    • United States
    • Court of Appeals of Arizona
    • May 19, 2008
    ...until contingency failed to occur and court entered judgment against appellees). See also Planned Parenthood Ctr. of Tucson v. Marks, 17 Ariz.App. 308, 310, 497 P.2d 534, 536 (1972) (action for declaratory judgment requires "actual controversy which must be real and not theoretical"); Land ......
  • Brush & Nib Studio, LC v. City of Phx., No. CV-18-0176-PR
    • United States
    • Supreme Court of Arizona
    • September 16, 2019
    ...controversy between the parties. Estate of Stewart, 230 Ariz. at 484 ¶ 12; see Planned Parenthood Ctr. of Tucson,Page 13 Inc. v. Marks, 17 Ariz. App. 308, 312-13 (1972) (stating that challengers of statute forbidding abortions under certain circumstances were not required to wait for crimin......
  • Fann v. State, CV-21-0058-T/AP
    • United States
    • Supreme Court of Arizona
    • August 19, 2021
    ...immediate and present controversy with reference to the validity of such a statute." Planned Parenthood Ctr. of Tucson, Inc. v. Marks , 17 Ariz. App. 308, 312, 497 P.2d 534, 538 (1972) (citation omitted). ¶13 Invest in Education argues that because school districts have not yet received or ......
  • Request a trial to view additional results

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