State v. Lee

• Decision Date: 13 January 2011
• Docket Number: No. 2 CA-SA 2010-0068.,2 CA-SA 2010-0068.
• Citation: 245 P.3d 919,226 Ariz. 234
• Parties: The STATE of Arizona, Petitioner, v. Hon. Kenneth LEE, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and John David Franklin, Sr. and John David Franklin, Jr., Real Parties in Interest.
• Court: Arizona Court of Appeals

245 P.3d 919

226 Ariz. 234

The STATE of Arizona, Petitioner,

v. Hon. Kenneth LEE, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent,andJohn David Franklin, Sr. and John David Franklin, Jr., Real Parties in Interest.

No. 2 CA-SA 2010-0068.

Court of Appeals of Arizona, Division 2, Department A.

Jan. 13, 2011.

Terry Goddard, Arizona Attorney General By Mike Jette, Tucson, Attorneys for Petitioner.

Piccarretta & Davis, P.C. By Michael L. Piccarretta and Jefferson Keenan, Tucson, Attorneys for Real Party in Interest, John David Franklin, Sr.

Law Office of Michael L. Brown By Michael L. Brown, Tucson, Attorney for Real Party in Interest, John David Franklin, Jr.

OPINION

BRAMMER, Presiding Judge.

¶ 1 In this special action, the State of Arizona seeks relief from the respondent judge's orders compelling depositions in the underlying civil forfeiture proceeding by the real parties in interest, defendants in both the forfeiture action and a parallel criminal proceeding, of named victims in the criminal proceeding. At issue is the scope of a victim's right to refuse a pre-trial deposition under Arizona's Victims' Bill of Rights (VBR), article II, § 2.1 of the Arizona Constitution. The question we must answer is whether the VBR guarantees victims the right to refuse such a deposition in a civil proceeding.

¶ 2 We accept jurisdiction of this special action because A.R.S. § 13-4437(A) and Rule 2(a)(2), Ariz. R.P. Spec. Actions expressly authorize victims to preserve their rights under the VBR by a special action proceeding. In addition, the challenged order is interlocutory in nature, and the state has no equally plain, speedy, or adequate remedy by appeal. See Ariz. R.P. Spec. Actions 1(a). Also relevant to our decision to accept special action jurisdiction is that the issue presented "is one of first impression, involves only questions of law[,] and is of statewide importance to the criminal justice system." See State v. Warner, 168 Ariz. 261, 262, 812 P.2d 1079, 1080 (App.1990). We grant relief because the respondent judge "erred as a matter of law, thereby abusing [his] discretion," by denying the state's request for a protective order to preclude the depositions. See Potter v. Vanderpool, 225 Ariz. 495, ¶ 14, 240 P.3d 1257, 1262 (App.2010); see also Ariz. R.P. Spec. Actions 3(c) (identifying abuse of discretion among grounds for granting special action relief). We hold that victims retain their constitutional right to refuse to be deposed by the defense in a civil proceeding where the subject matter of the proposed deposition is the criminal offense committed against those victims.

Factual and Procedural Background

¶ 3 In April 2009, the state filed a civil forfeiture action against real parties in interest, John David Franklin, Sr. and John David Franklin, Jr. ¹ The Franklins were indicted in May 2009 in Pima County cause number CR20091750 for fraudulent schemes and artifices, theft, illegally conducting an enterprise, and money laundering. After the state voluntarily remanded that case to the Pima County grand jury for a new finding of probable cause, a second indictment was returned in December 2009, Pima County cause numberCR20094710, which added forgery to the previous charges and identified seven customers as alleged victims. The civil and criminal cases both stemmed from alleged fraudulent sales and extension of credit during the operation of a used motor vehicle dealership owned by John Franklin, Sr. and operated by John Franklin, Jr.

¶ 4 In the civil forfeiture case, the Franklins sought to depose individuals who had been identified as victims in the criminal case. The attorney general's office, which is prosecuting the civil forfeiture action, sent letters to the victims, informing them that their depositions had been scheduled and advising them the state believed they could refuse to submit to the depositions. The letters asked the victims whether they wanted to assert or waive their right to refuse to be interviewed or deposed before the criminal trial. Two of the victims returned the letters stating they intended to assert their right to refuse an interview, and four verbally informed the attorney general's office they did not wish to be interviewed.² The state sought protective orders in both the criminal and civil cases to prevent depositions of the victims in the forfeiture proceeding. The judges in both cases denied the motions. The state subsequently filed this special action on behalf of the victims to determine whether the VBR gives the victims the right to refuse to be deposed in the civil forfeiture proceeding.

Discussion

Standing

¶ 5 The Franklins first contend in response to the petition for special action relief that the state lacks standing to bring this special action because no victim specifically requested the state's representation or filing of this special action, and no victim has refused to be deposed. Rule 2(a)(2), Ariz. R.P. Spec. Actions, allows a prosecutor to institute special action proceedings at the request of a victim to seek relief from an order that violates a victim's rights. Similarly, Rule 39(c)(2), Ariz. R.Crim. P. states the prosecutor has standing to assert any of the victim's rights "upon the victim's request." The Franklins assert the victims' responses to the attorney general's letters are insufficient to constitute a request as the rules require. We disagree.

¶ 6 The victims took the affirmative step of notifying the state they wished to assert their rights to refuse pre-trial depositions and the state has standing to assert those rights on behalf of the victims. See Warner, 168 Ariz. at 263, 812 P.2d at 1081; see also Ariz. R.Crim. P. 39(c)(2) (prosecutor has standing to "assert any of the rights to which the victim is entitled"). Nothing in the rules suggests a victim must initiate the discussion about whether rights granted by the VBR are implicated or need to be protected. Nor does there appear any requirement that a victim specify the method by which the prosecutor is to assert those rights. We decline to find an implied requirement in the rule that victims initiate contact or specifically request the appropriate form of proceeding. See Ariz. R.Crim. P. 39(b) ("These rules shall be construed to preserve and protect a victim's rights to justice and due process."). Indeed, the rules do not require the prosecutor to obtain a victim's consent before filing each motion or petition to enforce the asserted rights. Such a requirement would be onerous in cases like this, in which the only means by which relief may be obtained is the filing of a special action petition. See, e.g., Morehart v. Barton, 225 Ariz. 269, ¶ 5, 236 P.3d 1216, 1218 (App.2010) (special action jurisdiction accepted because right asserted by victims not capable of protection if reviewed after trial).

Delay

¶ 7 The Franklins next assert the state unduly delayed filing the petition and that this court therefore should decline to accept special action jurisdiction.³ TheFranklins contend the state should have sought relief immediately after the trial court denied the state's motion for protective order on May 24, 2010. "Arizona courts have repeatedly found laches to be the only restriction on the time for filing a petition for special action." State ex rel. McDougall v. Tvedt, 163 Ariz. 281, 283, 787 P.2d 1077, 1079 (App.1989). However, based on the amended notices, the victims' depositions were not scheduled to occur until September 20. The state's third motion for protective order and to stay the depositions was denied by the respondent judge on October 1 and this special action proceeding was filed three days later. In light of the fact that various motions relating to the depositions were pending, and given the timing of the resolution below of those motions and the amended notices of depositions, the state did not unreasonably delay filing the special action petition. The petition, consequently, was filed timely. We note, moreover, that the Franklins have not alleged the purported delay was prejudicial. Therefore, even assuming arguendo the state unreasonably had delayed filing this special action proceeding, the Franklins' laches-based argument would fail in any event. See Sotomayor v. Burns, 199 Ariz. 81, ¶ 6, 13 P.3d 1198, 1200 (2000) (laches bars claim when delay unreasonable and results in prejudice).

The Victims' Bill of Rights

¶ 8 The rights of crime victims are protected by Arizona's Constitution. The VBR provides, in relevant part, as follows:

(A) To preserve and protect victims' rights to justice and due process, a victim of crime has a right:

1. To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process.

....

5. To refuse an interview, deposition, or other discovery request by the defendant, the defendant's attorney, or other person acting on behalf of the defendant.

Ariz. Const. art. II, § 2.1. The portion of the VBR granting victims the right to refuse depositions has been implemented by statute and is complemented by Rule 39(b) Ariz. R.Crim. P.⁴ However, we follow and apply the language of the constitutional provision to determine the scope of a victim's rights, because neither the legislature nor court rules can eliminate or reduce rights guaranteed by the VBR. State v. Lamberton, 183 Ariz. 47, 50, 899 P.2d 939, 942 (1995); State v. Nichols, 224 Ariz. 569, ¶ 8, 233 P.3d 1148, 1150 (App.2010); State ex rel. Thomas v. Klein, 214 Ariz. 205, ¶ 11, 150 P.3d 778, 781 (App.2007); see also A.R.S. § 13-4418 (statutes implementing VBR "shall be liberally construed to preserve and protect the rights to which victims are entitled").

¶ 9 We review the interpretation of constitutional language de novo. See Massey v. Bayless, 187 Ariz. 72, 73, 927 P.2d 338, 339 (1996). To determine the meaning of a constitutional provision, we must determine " 'the intent of the electorate...