State v. Lee

HOWARD, Chief Judge,

dissenting.

¶ 15 I respectfully dissent because the constitutional and legislative contexts do not support an interpretation of the Victims’ Bill of Rights (VBR) that extends a victim’s right to refuse an interview and deposition to civil proceedings. This court reviews constitutional issues de novo. State v. Moody, 208 Ariz. 424, ¶ 62, 94 P.3d 1119, 1140 (2004).

¶ 16 In interpreting the constitution, our goal is “to effectuate the intent of those who framed the provision and, in the case of an amendment, the intent of the electorate that adopted it.” Jett v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994). We look first to the plain language of the provision. Id. If the language is clear, we look no further, but if the language is ambiguous we look to the intent behind it. See id. And, it “ ‘is a cardinal rule of constitutional construction that the interpretation, if possible, shall be such that each provision should harmonize with all the others. Different sections or provisions relating to the same subject must be construed together and read in the light of each other.’ ” Samaritan Health Sys. v. Stiperior Court, 194 Ariz. 284, ¶ 23, 981 P.2d 584, 590 (App.1998), quoting Herndon v. *240Hammons, 33 Ariz. 88, 92, 262 P. 620, 621 (1927). Additionally, “ ‘[a]s the clause in the constitution and the act of the legislature relate to the same subject, like statutes in pari materia, they are to be construed together.’ ” Roberts v. Spray, 71 Ariz. 60, 70, 223 P.2d 808, 815 (1950), quoting Cooper Mfg. Co. v. Ferguson, 113 U.S. 727, 733, 5 S.Ct. 739, 28 L.Ed. 1137 (1885).

¶ 17 Article II, § 2.1(A)(5) of the Arizona Constitution states that victims have the right “[t]o refuse an interview, deposition, or other discovery request by the defendant, the defendant’s attorney, or other person acting on behalf of the defendant.” It does not directly state whether it applies only in criminal proceedings or also in civil proceedings. Ariz. Const, art. II, § 2.1(A)(5). Additionally, interviews and depositions are provided for in the criminal rules, but only depositions are mentioned in the civil rules. See Ariz. R.Crim. P. 15.3(a)(2); Ariz. R. Civ. P. 26(a). Therefore, the constitutional provision is ambiguous with regard to whether it applies in both contexts. Consequently, we must examine the historical context of the provision to determine the electorate’s intent. See Jett, 180 Ariz. at 119, 882 P.2d at 430. “To determine the intent of the electorate, courts may also look to the publicity pamphlet distributed at the time of the election.” Heath v. Kiger, 217 Ariz. 492, ¶ 13, 176 P.3d 690, 694 (2008).

¶ 18 Arizona voters adopted article II, § 2.1 of the Arizona Constitution through a 1990 initiative measure on the ballot. See Ariz. Const, art. II, § 2.1; see also Arizona Publicity Pamphlet: Propositions to be submitted to the qualified electors of the State of Arizona 33-36 (1990). The legislative council submitted arguments favoring and opposing the proposition for voter consideration in the publicity pamphlet distributed at the time of the election. Arizona Publicity Pamphlet at 34-36. Neither the arguments for nor the arguments against the proposition directly state whether the right to refuse an interview and deposition would apply in criminal and civil proceedings. Arizona Publicity Pamphlet at 34-36. However, none of the arguments advanced by the legislative council refer to civil matters in any way but rather refer only to the criminal setting. Arizona Publicity Pamphlet at 34-36. The rest of the arguments in the pamphlet, submitted by citizens, also refer solely to criminal proceedings. Arizona Publicity Pamphlet at 36-43. All evidence of voter intent points to victims’ rights being intended to apply in criminal proceedings, and no evidence points to any voter intent to apply the rights in civil proceedings.

¶ 19 We further look to the surrounding constitutional provisions to harmonize subsection 5 within that context. See Samaritan Health Sys., 194 Ariz. 284, ¶ 23, 981 P.2d at 590. The first subsection in the VBR states that a victim has 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). Of the twelve subsections enumerating victims’ rights, ten explicitly refer to aspects of the criminal justice system and one gives victims the right to be informed of their other constitutional rights. See Ariz. Const, art. II, § 2.1(A)(1)-(12). And one of these subsections requires victims’ rights be protected under all rules concerning criminal procedure or admissibility of evidence in criminal proceedings. See Ariz. Const, art. II, § 2.1(A)(11). Because subsections surrounding subsection 5 overwhelmingly refer to criminal proceedings and because none refers to civil proceedings, construing this provision to include civil proceedings would not harmonize the sections. See Samaritan Health Sys., 194 Ariz. 284, ¶ 23, 981 P.2d at 590.

¶20 Additionally, we look to the legislature’s understanding of subsection 5 of the VBR for additional aid in interpreting the provision. See Jett, 180 Ariz. at 119, 882 P.2d at 430. The VBR gives the legislature “the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights” in the provision. Ariz. Const, art. II, § 2.1(D). And “define” means “[t]o set forth the meaning of (a word or phrase).” Black’s Law Dictionary 455 (9th ed. 2009). This mandate gives the legislature the authority to set forth the meaning of the constitutional provisions. Furthermore, courts have found the legislature’s in*241terpretation of constitutional provisions to be persuasive authority. See Apache County v. Sw. Lumber Mills, Inc., 92 Ariz. 323, 326, 376 P.2d 854, 855-56 (1962) (“nearly contemporaneous legislative act interpreting a new constitutional provision will, after acquiescence in this interpretation by the interested parties for a period of years, be highly persuasive as the correct interpretation”); Fair-field v. Foster, 25 Ariz. 146, 151, 214 P. 319, 321 (1923) (when language ambiguous courts may consider “meaning previously given it by co-ordinate branches of the government”); cf. Bolin v. Superior Court, 85 Ariz. 131, 136, 333 P.2d 295, 299 (1958) (“We realize that the construction placed upon the Constitution by administrative officers of the state is not binding, but certainly such construction should be considered in the interpretation of the Constitution by this court.”).

¶ 21 Section 13-4433, AR.S., is a part of the Victims’ Rights Implementation Act. 1991 Ariz. Sess. Laws, ch. 229, §§ 1, 7. That section provides that “[u]nless the victim consents, the victim shall not be compelled to submit to an interview on any matter ... that is conducted by the defendant, the defendant’s attorney or an agent of the defendant.” A.R.S. § 13-4433(A). The Implementation Act does not mention depositions other than to state that they are not included in the definition of “[c]riminal proceeding.” A.R.S. § 13-4401; see also 1991 Ariz. Sess. Laws, ch. 229, § 7. Interviews are provided for in the criminal context, Ariz. R.Crim. P. 15.3(a)(2), but not in the civil context, see Ariz. R. Civ. P. 26(a).

¶ 22 In its statement of intent in enacting the Victims’ Rights Implementation Act, the legislature set forth that it intended to apportion fairly the duties established in article II, § 2.1 of the Arizona Constitution at all stages of the criminal justice process. 1991 Ariz. Sess. Laws, ch. 229, § 2(3). The fact sheet for House Bill 2412 enacting the VBR into law states that “the constitutional amendment g[ave] the Legislature the authority to amend or repeal all rules governing criminal procedure and the admissibility of evidence in all criminal proceedings.” House Fact Sheet, H.B. 2412, 40th Leg., 1st Reg. Sess. (Ariz.1991). This is evidence the legislature believed the VBR granted it authority only over criminal procedure and the admissibility of evidence in criminal proceedings, not over matters of civil procedure. And the legislature does not mention civil proceedings in either the statement of intent or in the fact sheet. 1991 Ariz. Sess. Laws, ch. 229, § 2; House Fact Sheet, H.B. 2412, 40th Leg., 1st Reg. Sess. (Ariz.1991). Had the legislature thought or intended that this one provision granting the right to refuse an interview would apply in the civil context, it would have said so. Thus, the contemporaneous legislative history indicates the legislature defined the VBR as applying to criminal proceedings.

¶23 Furthermore, “we construe statutory provisions in a manner consistent with related provisions.” Home Builders Ass’n of Cent. Ariz. v. City of Mesa, 226 Ariz. 7, ¶ 7, 243 P.3d 610 (App.2010). Section 13-4402(A), AR.S., states that the victim’s rights arise on arrest or formal charging of the defendant and continue until final disposition of the charges, i.e., during the criminal process. The statute does not mention any civil proceedings. § 13-4402. Section 13-4405, A.R.S., defines the notice to which a victim is entitled, including notice of the right “to be treated with fairness, respect and dignity and to be free of intimidation, harassment or abuse throughout the criminal or juvenile justice process.” § 13-4405(A)(3)(a). The legislature also defines the terms relevant to crime victims’ rights in A.R.S. § 13-4401. It includes definitions for appellate proceeding, criminal proceeding, and post-conviction relief proceeding, but it does not include a definition for civil proceeding. See § 13-4401. Most of the remaining statutes regarding crime victims’ rights explicitly refer to criminal proceedings. See A.R.S. §§ 13-4401 through 13-4440. And only the statute setting forth the conduct for a victim’s rights representative for minors or vulnerable adults mentions civil proceedings at all. A.R.S. § 13-4403(D)(2), (E). Construed consistently with related provisions, § 13-4433 refers to a victim’s right to decline an interview with the defendant, defense counsel or the defendant’s representative in a criminal proceeding.

*242¶24 The majority relies on A.R.S. § 13-4418, which states that the crime victims’ rights chapter should be liberally construed to protect victims’ rights. But, “[i]t is a universal rule that courts will not enlarge, stretch, expand, or extend a statute to matters not falling within its express provisions.” See State ex rel. Morrison v. Anway, 87 Ariz. 206, 209, 349 P.2d 774, 776 (1960). And interpreting the statute to include a victim’s right to refuse to be deposed or interviewed in a civil proceeding, although only during the pendency of the criminal proceedings, would stretch the statute beyond the intention of the voters and the legislature.8

¶ 25 While extending victims’ rights to related civil proceedings may have merit, the people or the legislature should do so. Declining to interpret the VBR as extending to the civil context does not leave victims without protection. The state can request a stay of the civil forfeiture proceedings until the criminal proceedings conclude. In light of the constitutional and legislative contexts and histories, I would decline to extend to the civil context a victim’s right to refuse an interview with the defense.

. We are not dealing here with a defendant who has initiated a civil action for the purpose of evading the victim's rights.