Rebecca W. Berch

In Hogan v. Washington Mutual Bank, the plaintiff sought to enjoin non-judicial foreclosure sales on two Arizona properties, claiming the beneficiary banks could not proceed without first proving they owned or were entitled to enforce the underlying promissory notes secured by the deeds of trust. The Arizona Supreme Court affirmed the dismissal of the complaints, holding that Arizona's non-judicial foreclosure statutes do not require the beneficiary to show the note or prove its authority before a trustee may commence foreclosure. The court reasoned that the governing statutes, such as A.R.S. §§ 33-807, 33-808, and 33-809, impose only limited notice requirements regarding default and the trustee's authority, without mandating additional proof of note ownership, consistent with the legislature's design for an efficient, non-litigious process.

propertyprocedure

In State v. Ferrero, the Arizona Supreme Court addressed the admissibility of uncharged sexual acts with the same minor victim in a prosecution for sexual conduct with a minor. The trial court admitted evidence of other acts to show the defendant's sexual disposition without screening under Arizona Rule of Evidence 404(c), and the jury convicted on all counts. The court of appeals reversed two convictions, holding that such evidence required 404(c) screening. The Supreme Court clarified that Rule 404(c) governs propensity evidence unless the acts are truly intrinsic to the charged offenses, but evidence of the type described in State v. Garner is not inherently intrinsic. It therefore vacated the appellate decision, reversed the convictions, and remanded for a new trial with proper analysis of whether the evidence was offered for propensity or another purpose under Rules 404(b) or 404(c).

criminal lawprocedure

The case involves James Lynn Styers, who was convicted of the 1989 murder of a four-year-old child and sentenced to death by the trial court. The Ninth Circuit identified a constitutional error in the Arizona Supreme Court's prior independent review, which had improperly required a nexus between Styers' PTSD and the crime before considering it as mitigation. The Arizona Supreme Court granted the State's request for a new independent review, considered the PTSD evidence along with the aggravating factors, and concluded that the aggravating circumstances outweighed the mitigation. The court determined that this new review was part of the original direct review process and did not require remand for jury findings under Ring v. Arizona. As a result, the court affirmed the sentence of death.

criminal lawprocedure

This case concerns whether a commercial general liability insurance policy covers an insured's contractual liability for construction defects that resulted only in economic losses, along with related questions about the contractual liability exclusion and the meaning of damages arising from a legal obligation. The Arizona Supreme Court granted review to address three specific issues involving policy coverage, exclusions, and voluntary repair expenditures. The court ultimately affirmed the court of appeals' opinion in full, adopting its reasoning on all issues without additional analysis.

propertybusiness & regulatory

The case involved an Arizona workers' compensation claim by Jesus Gutierrez, who suffered a back injury in 2007. The dispute centered on whether a physician rating his permanent impairment should use the Fifth or Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment under administrative rule A.A.C. R20-5-113(B), which refers to the 'most recent edition.' The Industrial Commission and lower courts applied the Sixth Edition and found no ratable impairment, closing the claim. The Arizona Supreme Court affirmed, holding that 'most recent edition' means the edition current at the time of the rating rather than when the rule was adopted, as the language indicates an intent for an evolving standard, consistent with other statutes and historical practice. The court further reasoned that this does not constitute an improper delegation of legislative authority because physicians may use discretion and are not required to apply the Guides rigidly if they do not accurately reflect the claimant's condition.

labor & employmentprocedure

The case concerned whether Arizona Revised Statutes § 13-4033(B) bars a direct appeal from a sentence imposed after a defendant who had entered a guilty plea later contests a probation violation at a revocation hearing. The defendant, Christopher Regenold, had pled guilty to luring a minor for sexual exploitation, received probation under the plea agreement, and after a contested revocation hearing was sentenced to prison; the court of appeals dismissed his appeal for lack of jurisdiction. The Arizona Supreme Court reversed, holding that the statute precludes appeal only from a sentence entered pursuant to an admission to a probation violation, not from one following a contested hearing. The court reasoned that the plain language of the statute distinguishes between admissions and contested violations, and that appellate jurisdiction is governed by statute rather than by Rule 32 post-conviction procedures.

criminal lawprocedure

The case concerned whether an auto insurer satisfied Arizona Revised Statutes section 20-259.01 by providing a Spanish-speaking customer with a Department of Insurance-approved English-language form on which to accept or reject uninsured and underinsured motorist coverage. The plaintiffs sued for breach of contract after a claim for UM benefits was denied, arguing that the offer was ineffective because it was not in Spanish and the insured could not understand it. The Arizona Supreme Court reversed the lower courts and held that the insurer had complied with the statute. The court reasoned that the law requires only a written notice on an approved form and does not impose a separate language or comprehension requirement; adding such a requirement would contradict the statutory text and the 1992 amendments intended to protect insurers from later challenges.

business & regulatory

In State v. Soto, the Arizona Supreme Court considered the applicability of A.R.S. § 13-4033(C), a 2008 statute that bars appeals from convictions if a defendant's absence prevents sentencing within ninety days. Soto had been convicted in 2004, absconded before sentencing, and was sentenced in December 2008 after the statute took effect. The court of appeals had reinstated Soto's appeals after finding the statute unconstitutional under the Arizona Constitution's right to appeal. On review, the State conceded that the statute did not apply to Soto because he was returned to custody within ninety days of its effective date. The court therefore declined to reach any constitutional or retroactivity issues, vacated the court of appeals opinion, and remanded for further proceedings on the appeals.

criminal lawprocedure

This case involved a challenge by Michael McClung to the validity of signatures on Joseph Sweeney's nominating petitions for the Republican primary ballot for U.S. House District 7. Sweeney submitted 577 signatures, needing 381 valid ones; after review by county recorders, 386 remained valid. The superior court rejected McClung's additional challenges at an evidentiary hearing, and the Arizona Supreme Court affirmed that decision. The court reasoned that McClung could not raise new grounds for disqualifying signatures without prior notice in his complaint, which impaired due process by depriving the candidate of a fair opportunity to respond, and that McClung also failed to meet his burden of proof on the originally challenged signatures while his late appeal filing supported dismissal on laches grounds.

electionsprocedure

This case involved a workplace injury at a copper smelter where plaintiff James Tarron fell through an unguarded gap and sued Bowen Machine & Fabricating, the general employer that had loaned two temporary workers to Phelps Dodge under a labor agreement. Tarron sought to hold Bowen vicariously liable under the doctrine of respondeat superior for the workers' alleged negligence in failing to properly secure the opening. The trial court granted partial summary judgment to Tarron, finding Bowen retained the legal right to control the employees based on the contract, and a jury awarded damages with Bowen apportioned 60% fault. The Arizona Supreme Court held that genuine issues of material fact existed regarding whether Bowen had ceded its right of control to Phelps Dodge, considering both the contract and the actual circumstances of the work, so summary judgment was improper. It affirmed the court of appeals, reversed the trial court's judgment for Tarron on liability, and remanded for a limited new trial on the control issue while leaving the damages award and other fault allocations intact.

torts & liabilitylabor & employment

In State v. King, the Arizona Supreme Court addressed whether a criminal defendant is entitled to a self-defense jury instruction only if he acted solely from fear of immediate physical danger. The defendant was convicted of second-degree murder after striking and kicking a man who had allegedly thrown a bottle at him; the trial court later granted a new trial upon finding it had wrongly denied the self-defense instruction. The court of appeals reversed, relying on prior case law requiring sole motivation, but the Supreme Court vacated that decision and affirmed the new-trial order. Interpreting A.R.S. § 13-404(A), the court held that the statute's text does not impose a sole-motivation requirement and that the "slightest evidence" of possible self-defense suffices to warrant the instruction, with the state bearing the burden to disprove justification.

criminal law

In State v. Hargrave, Christopher Allen Hargrave was convicted of three counts of first-degree murder, armed robbery, burglary, and kidnapping after he and an accomplice robbed a fast-food restaurant where he had been fired and shot three employees in the freezer. The jury found aggravating factors including pecuniary gain, cruelty, and multiple homicides, leading to death sentences for the murders and prison terms for the other offenses. On automatic appeal, the Arizona Supreme Court reviewed fourteen claims of trial and sentencing error plus additional preserved issues. The court affirmed the convictions, the death sentences, and most other terms but remanded solely for resentencing on the burglary count.

criminal lawprocedure

The case involved Daniel Diaz, convicted of possessing methamphetamine for sale, who admitted to two historical prior felony convictions unrelated to methamphetamine and being on probation at the time of the offense. The trial court sentenced him to an aggravated term of twenty-five years under Arizona's general repetitive offender statute, A.R.S. § 13-703(C), rather than the special methamphetamine sentencing statute, A.R.S. § 13-709.03. The court of appeals remanded for resentencing under the special statute, but the Arizona Supreme Court affirmed the trial court's sentence and vacated the relevant portion of the appellate opinion. The Court held that the special methamphetamine statute does not prohibit application of the general repetitive offender statute for non-methamphetamine-related priors, as the general statute provides an exclusive sentencing scheme absent an express exclusion in another provision.

criminal law

The case involved Ryan Wesley Kuhs, who was convicted by a jury of first-degree burglary and first-degree murder after entering Enrique Herrera’s apartment and stabbing him to death. The jury found five aggravating factors, determined that mitigation was insufficient, and imposed a death sentence for the murder along with a prison term for the burglary. Kuhs appealed, raising issues such as his competency to stand trial and multiple constitutional challenges to Arizona’s death penalty scheme. The Arizona Supreme Court affirmed the convictions and sentences, concluding that the trial court did not abuse its discretion and that the statutory requirements were met.

criminal law

The case involved Alejandro Lazcano's application for admission to the Arizona State Bar after he pled no contest in Texas to attempted sexual assault, resulting in a deferred adjudication with a ten-year term of probation and supervision. The Arizona Supreme Court denied the application. The court reasoned that the deferred adjudication qualifies as a conviction under Arizona rules, creating a presumption against admission for serious crimes, and that an applicant still under court supervision cannot meet the burden of showing the good moral character required for bar membership until the probationary period ends and rehabilitation is demonstrated.

criminal lawprocedure

In State v. Allen, the Arizona Supreme Court addressed whether a trial court must conduct a Boykin-type colloquy with a defendant who stipulates to elements of criminal offenses, such as being a prohibited possessor of a firearm and possessing marijuana, while maintaining a not-guilty plea. The defendant was convicted of aggravated assault, misconduct involving weapons, and marijuana possession after stipulations were read to the jury, and the court of appeals had remanded the marijuana conviction for lack of such a colloquy. The Supreme Court affirmed the superior court's judgment, holding that neither Boykin v. Alabama nor Arizona Rule of Criminal Procedure 17 requires a formal colloquy for evidentiary stipulations made during trial, as those rules apply only to guilty or no-contest pleas or stipulations to prior convictions. The core reasoning was that stipulations to elements while pleading not guilty do not waive the same constitutional rights as a guilty plea, though courts may prudently confirm the defendant's understanding on the record.

criminal lawprocedure

In State v. Hardesty, Danny Ray Hardesty was convicted after a bench trial of possessing marijuana and drug paraphernalia following a traffic stop in which officers found marijuana in his van and recovered a joint he had discarded. Hardesty sought to assert a defense under Arizona’s Free Exercise of Religion Act (FERA), A.R.S. § 41-1493.01, claiming that his unlimited use of marijuana was a sacrament of the Church of Cognizance and therefore protected religious exercise under state and federal law. The trial court rejected the defense, excluded it from trial, and convicted him; the court of appeals affirmed on different grounds. The Arizona Supreme Court held that a religious-exercise defense may be raised under FERA but fails here as a matter of law because the State has a compelling interest in public safety that is furthered by a total ban on marijuana possession and because no less restrictive alternative would accommodate Hardesty’s claimed practice of using the drug at any time or place, including while driving. The court therefore affirmed the convictions and vacated the court of appeals’ opinion.

criminal lawreligious liberty

Patrick Wade Bearup was convicted of kidnapping and first-degree murder after he and accomplices confronted, beat, abducted, mutilated, and killed Mark Mathes over suspected theft of money and a ring. The Arizona Supreme Court reviewed the case on automatic appeal and affirmed both the convictions and the death sentence. The court rejected Bearup's four claims of error plus thirteen additional issues, relying on prior precedent to uphold Arizona's statutory scheme for considering aggravating and mitigating factors in capital sentencing.

criminal law

This case concerned whether services provided by the spouse of an injured worker could be compensated under Arizona's workers' compensation statute, which requires payment for medical, surgical, hospital benefits or other treatment, nursing, and related care that is reasonably required during disability. The Arizona Supreme Court held that compensability turns on the nature of the services provided rather than the identity of the provider, and that the statute covers necessary attendant care even if performed by a family member. The court rejected a narrow reading of the phrase "other treatment" that would limit coverage to skilled services typically performed only by trained attendants, vacated the court of appeals opinion and Industrial Commission award denying compensation, and remanded for a factual determination on whether the wife's services were reasonably required.

labor & employmenthealthcare

The case involved school districts suing the Arizona State Land Commissioner and easement holders for failing to obtain compensation for over 900 easements granted over state trust lands to government entities between 1929 and 1967, lands held in trust under the Arizona-New Mexico Enabling Act for the benefit of public schools. The Arizona Supreme Court held that the claims were time-barred. The court reasoned that the cause of action accrued in 1967 when the U.S. Supreme Court ruled compensation was required for such uses of trust lands (Lassen II), or at latest in 2003 when the districts had actual notice, and the suit filed in 2004 fell outside the applicable one-year statute of limitations for claims against public entities.

propertyprocedurefederal power