SUPREME COURT CIVIL MATTERS
Submitting Two Different
Versions of a Ballot Initiative to
the Secretary of State Does Not
Necessarily Run Afoul of the
Requirement That a Proponent
Must Submit the Text of the
Proposed Measure. An initiative
proponent must attach “a full and
correct copy of the title and text”
of a ballot initiative to “[e]ach
sheet containing petitioners’ signatures,” ARIZ. CONST. art. 4, pt. 1, §
1( 9). Because Arizona has a strong
policy supporting the people’s
exercise of the initiative power,
courts liberally construe initiative
requirements and apply a substantial compliance test. Where initiative proponents inadvertently submit to the Secretary of State two
differing versions of the initiative (a
full version on a CD and a paper
version that omits several lines of
text), circulate the full version with
the petition sheets, and gather
more than 290,000 signatures, the
initiative proponents substantially
comply with ARIZ. CONST. art. 4,
pt. 1, § 1( 9). Pedersen v. Bennett,
CV-12-0260-AP/EL, 12/5/12.
including the ability to issue civil
investigative demands for testimony
under oath and production of documents. The OML applies to the
Commission. State v. Mathis, 1 CA-CV 12-0068, 12/11/12.
Construction Defect Statute
of Repose Is Not Subject
to Challenge Under Anti-Abrogation Clause of Arizona
Constitution. The statute of
repose, A.R.S. § 12-552, limits the
time within which parties may
bring breach of contract and
implied warranty actions against
developers, builders and certain
others. Such actions must be
brought within eight or in some
instances nine years after substantial completion of the improvement
to real property. The statute of
repose is not subject to challenge
under Article 18, Section 6 of the
Arizona Constitution. This “
anti-abrogation clause” does not apply
to contract claims, such as claims
for breach of the implied warranty
of good workmanship and habitability. The statute of repose is
not subject to equitable tolling.
Sullivan v. Pulte Homes Corp., 1
CA-CV 10-0754, 12/4/12.
SUPREME COURT CRIMINAL MATTERS
A trial court does not err in a
capital case by revoking a defendant’s right to self- representation or pro per status when he
repeatedly proves himself incapable of abiding by court deadlines and disclosure rules.
Although under the U.S. Supreme
Court’s decision in Faretta v.
California a criminal defendant has
the right to represent himself, the
right is not absolute, and a trial
court “may terminate self-represen-
tation by a defendant who [not
only] engages in serious and
obstructionist misconduct,” yet
fails to “comply with the relevant
rules of procedural and substantive
law.” While a court may preclude
evidence in such a case pursuant to
Rule 15. 2, ARIZ.R.CRIM.P., when
a defendant shows over several
years that he cannot comply with
court deadlines and disclosure
rules despite repeated warnings
that their non-compliance could
result in loss of pro per status, a
court may properly revoke a defen-
dant’s right to self-representation
and appoint counsel when it
becomes evident that their con-
tinued self-representation would
undermine the court’s authority
and ability to conduct the proceed-
ings in an efficient and orderly
manner. A trial court in a capital
case does not err by failing to
conduct an evidentiary hearing
before denying requests by the
defendant and his attorney for
the appointment of new counsel
if the motion fails to allege
specific facts suggesting an irrec-
oncilable conflict or complete
breakdown in communication,
or if there is no indication that a
hearing would elicit additional
facts beyond those already before
the court bearing on the issue.
State v. Gomez, CR-10-0358-AP,
12/7/12.
defaulted for failure to appear.”
Under Rule 55(b)( 2), “In all other
cases,” the plaintiff must apply for
a default judgment and give notice
of the hearing on the application to
the defendant. Although Division
Two recently held that under Rule
55(b)( 2) a defendant who has
appeared in an action is entitled to
notice and a hearing before default
judgment may be entered, regardless of whether the damages are
liquidated or unliquidated, BYS
Inc. v. Smoudi, 228 Ariz. 573, 578
¶ 20, 269 P.3d 1197, 1202 (App.
2012), Division One rejected that
construction of the rule. Rule
55(b) was amended in 1975.
Before the amendment, the rule
required “in all cases” that a defendant who appeared in an action
receive notice before default judgment could be entered. After the
amendment, the rule allows a party
seeking liquidated damages to
obtain a default judgment on
motion and without notice to the
defendant. No evidentiary hearing
is needed to calculate damages in a
case involving liquidated damages,
and accordingly no notice is
required. Judge Orozco dissented.
Searchtoppers.com LLC v. TrustCash
LLC, 1 CA-CV 11-0171,
12/20/12.*
COURT OF APPEALS CIVIL MATTERS
A Party Who Has Been
Open Meeting Statute Applies
to Arizona Independent
Redistricting Commission. The
Arizona Independent Redistricting
Commission (“Commission”) is a
constitutional entity with powers
and duties set forth in Article IV,
Part 2, Section 1 of the Arizona
Constitution. Section 1( 13) states
that all action of the ARIC requires
“three or more affirmative votes”
and that “[w]here a quorum is
present, the [Commission] shall
conduct business in meetings open
to the public.” Arizona’s open
meeting statute, A.R.S.
§§ 38-431 to -431.09
(the “OML”) contains a
set of open-meeting reg-
ulations that are gener-
ally applicable to public
bodies. The statute also
gives the Attorney
General various powers
to investigate alleged
violations of the OML,
Thomas L. Hudson is a member at Osborn Maledon PA, where his practice focuses on civil
appeals and appellate consulting with trial lawyers. He can be reached at thudson@omlaw.com,
and is ably assisted with this column by Osborn Maledon PA’s appellate group, which maintains
azapp.com. AzAPP contributors include Grace E. Campbell, Sharad H. Desai, Chelsea S.
Durkin, Eric M. Fraser, Brandon A. Hale, Shane M. Ham, Mark P. Hummels, Kathleen
Brody O’Meara, Grace E. Rebling, James Rogers and Joseph N. Roth.
Patrick C. Coppen is a sole practitioner in Tucson.
James M. Susa is with Snell & Wilmer LLP in Tucson.
A Plaintiff Cannot Shift the
Burden of Proof to the
Defendant by Filing a Motion
for Summary Judgment. Under
Arizona Rule of Civil Procedure
56(c), it is the party moving for
summary judgment who bears the
“burden of persuasion.” To carry
its burden of persuasion, a plaintiff
seeking summary judgment must
submit undisputed admissible evidence that would compel any reasonable juror to find in its favor on
every element of its claim. In the
context of a debt claim by a bank,
a general avowal in an affidavit by
a paralegal claiming he is the custodian of records and that he personally reviewed records (without
attaching or describing those
records or otherwise providing a
reviewing court the means to evaluate the accuracy of the paralegal’s
calculation of the amount claimed
to be due), does not demonstrate
by admissible evidence that a bank
is entitled to judgment as a matter
of law against the alleged debtor.
