State v. Lee

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 num*236ber CR20094710, 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 ease, 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(e)(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 The *237Franklins 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 that adopted it.’ ” Heath v. Kiger, 217 Ariz. 492, ¶ 9, 176 P.3d 690, 693 (2008), quoting Jett v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994). The best reflection of that intent is the plain language of the provision, “and we do not go outside the plain language ... unless [it] is unclear.” Phelps Dodge Corp. v. Arizona Elec. Power Coop., Inc., 207 Ariz. *23895, ¶ 42, 83 P.3d 573, 587 (App.2004). Thus, to determine the meaning of the VBR and serve its purpose, we look first to its plain language and reject ad hoc exceptions to its protections. Knapp v. Martone, 170 Ariz. 237, 239, 823 P.2d 685, 687 (1992).

¶ 10 The VBR grants a “victim of crime” the right “[t]o refuse a[ ] ... deposition ... request by the defendant” or a representative of the defendant. Ariz. Const, art. II, § 2.1(A)(5). This plain language limits the scope of a victim’s right only by the identity of the person requesting the interview — the defendant or the defendant’s representative — and the identity of the person to whom the request is directed — a crime victim. It does not limit the proceedings to which the right extends.5 Courts have interpreted broadly a victim’s right to refuse an interview about the offense against the victim. For example, “a victim’s right to refuse to be interviewed about the offense committed against that victim is inviolate,” even as to other offenses with which the defendant has been charged in a separate prosecution. State v. Stauffer, 203 Ariz. 551, ¶ 7, 58 P.3d 33, 35-36 (App.2002); see also State ex rel. Romley v. Hutt, 195 Ariz. 256, ¶ 7, 987 P.2d 218, 221 (App.1999) (“Arizona’s appellate courts have considered the victim’s right to decline a defense interview ‘absolute.’ ”) citing State v. Roscoe, 185 Ariz. 68, 74, 912 P.2d 1297, 1303 (1996).6

¶ 11 The Franklins argue the scope of the VBR does not protect victims from civil depositions because it provides that victims have the right “[t]o be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process.” Ariz. Const, art. II, § 2.1(A)(1). They contend that, although Ariz. Const, art. II, § 2.1(A)(1) and (A)(5) are co-equal parts within the same provision, the former “sets forth the overall mission, purpose, and scope of the [VBR].” We read constitutional provisions as a whole, and give meaningful operation to each part in harmony with the others. Corp. Comm’n v. Pac. Greyhound Lines, 54 Ariz. 159, 170, 94 P.2d 443, 447 (1939); cf. Lebaron Prop., LLC v. Jeffrey S. Kaufman, Ltd., 223 Ariz. 227, ¶ 1, 221 P.3d 1041, 1043 (App.2009) (where intent unclear, we read statutes as whole). Even when the two subsections are read together, and even if we assume arguendo that Ariz. Const, art. II, § 2.1(A)(1) limits the scope of the entire VBR, the state’s proposed interpretation of a victim’s right to refuse to be deposed in a civil ease is in harmony with the VBR’s plain language. The state argues victims are allowed to assert their rights “any time during the criminal justice process” and that “[s]o long as the criminal process is underway, the right to refuse a deposition is absolute.”7 In other words, the state posits that, even if the right to refuse to be deposed is limited to the duration of the criminal justice process, a *239victim may assert that right in any venue during that time. We agree. As we recognized in Stauffer, “a victim’s right to refuse to be interviewed about the offense committed against that victim is inviolate,” even as to other offenses committed on the same occasion by the defendant or during a separate prosecution altogether. 203 Ariz. 551, ¶ 7, 58 P.3d at 35-36. We see no reason not to apply that principle to a parallel civil proceeding in which the subject of the proposed deposition is the criminal offense committed against that victim.

¶ 12 The Franklins also argue that, because the VBR explicitly authorizes the legislature or the people “to extend any of these rights to juvenile proceedings,” but does not contain a similar provision relating to civil proceedings, victim rights are unavailable in civil proceedings. See Ariz. Const, art. II, § 2.1(D). The inclusion of juvenile proceedings in the VBR, however, clarifies that victims of offenses perpetrated by minors who are defendants in quasi-criminal, delinquency proceedings may qualify as “victims” for purposes of the VBR. See A.R.S. § 8-381 (giving victim’s rights when offenses committed by juvenile). In contrast, protecting the right to refuse to be deposed in a parallel civil proceeding merely preserves a right already granted to the victim in a criminal proceeding; it does not expand the class of qualifying victims beyond “person[s] against whom the criminal offense has been committed.” See Ariz. Const, art. II, § 2.1(C). Therefore, the reference to juvenile proceedings in the VBR does not inform resolution of the question before us.

¶ 13 Preserving crime victims’ right to refuse to be deposed in any venue regarding the offense committed against them is necessary to promote the purpose of the VBR. The purpose underlying a victim’s right to refuse a pretrial interview is to protect the victim’s privacy and minimize contact with the defendant prior to trial. State v. Riggs, 189 Ariz. 327, 330, 942 P.2d 1159, 1162 (1997); see also Champlin, 192 Ariz. 371, ¶ 20, 965 P.2d at 767 (purpose of VBR includes healing of ordeals and avoiding retraumatization). Any deposition about the offense would expose victims to the very harm against which the VBR protects. Unlike other positive rights afforded under the VBR that cannot be reduced by actions taken or abstained from in a parallel civil proceeding (e.g., right to be present for, informed of, and heard at particular proceedings, Ariz. Const, art. II, § 2.1(A)(2)-(4)), the right to refuse to be deposed is immediately and completely defeated if the defendant can compel a victim to submit to a deposition in a separate proceeding.

¶ 14 For the foregoing reasons, we conclude the respondent judge erred when he denied the state’s request for a protective order. We grant the state’s request for special action relief, vacate the respondent’s order denying the state’s request for a protective order, lift the stay previously ordered by this court, and direct the respondent to enter orders consistent with this decision.

CONCURRING: PHILIP G. ESPINOSA, Judge.

. During the relevant proceedings, John David Franklin, Jr. also has been referred to as "John Jay Franklin” and “John David 'Jay’ Franklin.”

. The seventh victim did not respond to the letter, but had already been deposed.

. The state’s motion for protective order was denied in the criminal case on March 25, 2010 and in the civil case on May 24, 2010. In the May 24 minute entry, the trial court also stated "no deposition shall occur or be noticed for the future until the Court can address in the context of a Case Management Conference the schedule *237of disclosure and other discovery devices, including depositions.” The court ordered "that claimants shall have the right to take the noticed depositions” on August 23, 2010. On September 20, 2010 the Franklins filed amended notices of taking the victims’ depositions.

. A.R.S. § 13-4433(A) reads:

the victim shall not be compelled to submit to an interview on any matter, including any charged criminal offense witnessed by the victim and that occurred on the same occasion as the offense against the victim, or filed in the same indictment or information or consolidated for trial, that is conducted by the defendant, the defendant's attorney or an agent of the defendant.

Rule 39(b)(ll), Ariz. R.Crim. P., implemented before the VBR, provides: "These rules shall be construed to preserve and protect a victim’s rights to justice and due process.... [A] victim shall have ... the following rights: ... [t]he right to refuse an interview, deposition, or other discovery request by the defendant [or a representative].”

. Our dissenting colleague bases a contrary view on his premise that the VBR is "ambiguous” in part because of the use of the terms "interviews” and "depositions” in the Arizona rules of civil and criminal procedure. See infra ¶ 17. We question, however, whether ambiguity can be injected so readily into the constitution by reference to extrinsic sources. See Circle K Stores, Inc. v. Apache County, 199 Ariz. 402, ¶ 9, 18 P.3d 713, 717 (App.2001) (if plain language of constitutional provision "clear and unambiguous, we generally subscribe to that meaning” and "may not use extrinsic evidence to vary a provision’s apparent meaning”).

. In Champlin v. Sargeant, the Arizona Supreme Court observed that nothing in the VBR gives victims "a blanket right to be shielded from all contact with defendants or their attorneys.” 192 Ariz. 371, ¶ 20, 965 P.2d 763, 767 (1998). The court relied on the language of A.R.S. § 13-4433(A) to hold that "those who are not victims but merely witnesses of particular criminal behavior, though perhaps victims of other behavior by the same defendant on separate occasions, may be interviewed as to the former but not the latter.” Id. ¶ 18. Significantly, the year after Champlin was decided, the legislature amended § 13 — 4433(A) to allow victims like the one in Champlin to refuse an interview. 1999 Ariz. Sess. Laws, ch. 261, § 45. To the extent Champlin is still good law, its limited holding is that a victim does not have the right to refuse a deposition or interview on a subject unrelated to the offense against the victim. Neither party here suggests the victims are to be deposed as to matters unrelated to the offenses committed against them.

. The state does not propose, and we decline to address, that a victim’s right to refuse to be deposed could extend beyond the conclusion of the criminal trial.