SUPREME COURT CRIMINAL MATTERS
A trial court in a capital case
does not abuse its discretion in
declaring a mistrial during the
penalty phase of trial based on
“manifest necessity” when jurors
are unable to agree on an appro-
priate sentence and by later deny-
ing the defendant’s motion to dis-
miss the State’s death penalty alle-
gation under the principles of dou-
ble jeopardy. Under A.R.S. § 13-
751(C) “jurors do not have to agree
unanimously that a mitigating cir-
cumstance has been proven to exist”
and “[e]ach juror may consider any
mitigating circumstance found by
that juror in determining the appro-
priate penalty.” Subsection (F) pro-
vides that neither party bears the bur-
den of persuading the jury that the
mitigation is sufficiently substantial
to call for leniency. State v. Reeves, CR
11-0157, 10/23/13.
standards of law that must be satisfied prior to placement with a parent.
The Arizona Supreme Court accepted review or jurisdiction of the following
issues on Oct. 29, 2013*:
Alexander M. et al. v. Hon. Abrams/ADES, 2 CA-SA 2013-0037 (05/07/2013);
Ariz. S. Ct. No. CV-13-0169-PR
Issues Presented:
compiled by Ellen Crowley,
Chief Staff Attorney
Arizona Supreme Court
SUPREME
COURT
PETITIONS
A. The Court of Appeals inappropriately declined special action jurisdiction because
Respondent exceeded her jurisdiction in granting ADES discretion to place
Minors with their parents, when numerous juvenile court statutes and rules
squarely put the onus for determining appropriateness of return of the child
on juvenile court.
B. The Court of Appeals inappropriately declined special action jurisdiction because
Respondent exceeded her jurisdiction in finding that ADES may receive discre-
tion to return pursuant to A.R.S. § 8-514, because the statute contains several
Bill and Susan Beverage v. Pullman & Comley, LLC, et al., 232 Ariz. 414, 306 P.3d 71 (App. 2013); Ariz. S.
Ct. No. CV-13-0170-PR
Issue Presented:
• An Arizona resident contacts an out-of state vendor or service provider and asks to purchase a good or service.
The out-of-state party agrees to enter into a single business transaction with the Arizona resident. The transaction has no connection to Arizona other than the location of the customer’s residence. May Arizona courts
exercise personal jurisdiction over the out-of-state vendor or service provider based on that single transaction.
Juan Carlos Vicente Sanchez v. Hon. Ainley/State, 308 P.3d 1165 (Ariz. Ct. App. 2013); Supreme Court No.
CV-13-0280-PR
Issue Presented:
COURT OF APPEALS CIVIL MATTERS
Restrictive Covenants That
Deem Public Information
Confidential or Effectively Prevent
Competition Per Se Are
Unenforceable. Under Arizona law,
a restrictive covenant is unreasonable
and will not be enforced (1) if the
restraint is greater than necessary to
protect the employer’s legitimate
interest; or (2) if that interest is out-
weighed by the hardship to the
employee and the likely injury to the
public. A confidentiality covenant is
overbroad and unenforceable if it
deems public information confiden-
tial (because it requires “substantial
searching”) or if it deems confidential
any information the employee
acquires through her employment
regardless of whether the informa-
tion is truly confidential. Non-com-
pete and non-solicitation restrictions
are enforceable if they are no broader
than necessary to protect the employ-
• Did Respondent Judge err when she denied Petitioner’s Motion for Chronis Hearing in his First Degree
Capital Murder case by finding that a probable cause decision had already been made concerning the aggravating factors alleged by the State in his case when those factors were presented to the same Yavapai County
grand jury that indicted him for the underlying criminal charges?
State v. Douglas Edward Fuqua, 2013 WL 1174094; Ariz. S. Ct. No. CR-13-0114-PR (Separate Order issued
granting review and remanding to the trial court for resentencing)
Issue Presented:
• Does A.R.S. § 41-1604.07 allow a trial judge to make any felony sentence a “flat time” sentence?
*Unless other wise noted, the issues are taken verbatim from either the petition for review or the certified question.
er’s legitimate business interest. A
covenant that prevents an employee
from pursuing any type of work in
the public relations industry, even
based on her skill and talents and not
merely on confidential information
or customer relationships, is overbroad. Orca v. Noder et al., 1 CA-CV
12-0183, 10/17/13.
The Statute of Limitations
Applies to Quiet Title Actions
Where the Parties Contest
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 Sharad H.
Desai, Chelsea S. Durkin, Joshua Ernst, Eric M. Fraser, Brandon A. Hale,
Shane M. Ham, Kathleen E. Brody, Grace E. Rebling, James K. Rogers and
Joseph N. Roth.
Patrick C. Coppen is a sole practitioner in Tucson.
Possession. A one-year statute of
limitations, A.R.S. § 12-821, applies
to actions against the State. In general, statutes of limitations do not
apply to quiet title actions. But that
rule is valid only when the party
seeking to quiet title enjoys undisturbed possession of the property in
question. When a suit is brought to
resolve adverse claims for possession,
the action is more akin to a declaratory judgment than a true quiet title
action, and therefore ordinary
statutes of limitations apply. When a
party demands that the State execute
a quitclaim deed and the State refuses, the action accrues when the
demand is made, and the general one
year limitations period under A.R.S.
§ 12-821 applies. Rogers v. Board of
Regents of the Univ. of Ariz., 2 CA-CV 2013-0015, 10/1/13.
James M. Susa is with Snell & Wilmer LLP in Tucson.
The Arizona Empowerment
Scholarship Accounts Program
Does Not Violate the Religion or
Aid Clause of the Arizona
Constitution. Article 2, Section 12,
of the Arizona Constitution, referred
to as the “Religion Clause,” provides
that “[n]o public money … shall
be appropriated for or applied to
any religious worship, exercise, or
instruction, or to the support of any
religious establishment.” The Arizona
Empowerment Scholarship Accounts
program (“ESA”), which provides
education scholarships to students
with disabilities that may be used in a
variety of schools including qualifying
religious schools, does not violate this
provision because it is neutral in all
aspects toward religion and directs aid
to a broad class of individuals defined
without reference to religion. The
ESA is a system of private choice that
does not have the effect of advancing
religion. Article 9, Section 10, of the
