SUPREME COURT OF ARIZONA
En Banc
FRANK DOUGLAS HUGHES, ) Arizona Supreme Court
) No. CV-01-0336-PR
Petitioner,)
) Court of Appeals
v. ) Division Two
) No. 2 CA-SA 01-0058
HON. CINDY JORGENSON, JUDGE OF )
THE SUPERIOR COURT OF THE STATE ) Graham County
OF ARIZONA, in and for the ) Superior Court
County of Pima, ) No. CR-2000-174
)
Respondent,)
)
THE STATE OF ARIZONA, ) O P I N I O N
)
Real Party in Interest.)
)
Special Action from the Superior Court in Graham County
The Honorable Cindy Jorgenson, Judge
REVERSED
JANET A. NAPOLITANO, ARIZONA ATTORNEY GENERAL Phoenix
By Randall M. Howe, Chief Counsel,
Criminal Appeals Section
and John R. Evans, Assistant Attorney General Tucson
Attorneys for Real Party In Interest
LAW OFFICES OF WALTER B. NASH, III, P.C. Tucson
By Walter B. Nash, III
and William J. Kirchner
Attorneys for Petitioner
B E R C H, Justice
¶1 We granted review to determine the appropriate
interpretation of the term “substantial interest” as it is used in
Arizona’s conflict of interest statute, Ariz. Rev. Stat. (“A.R.S.”)
§ 38-503 (2001). The question is whether the term encompasses
interests other than non-remote pecuniary or proprietary interests.
We conclude that it does not.
BACKGROUND
¶2 The question arises against the following background:
While on traffic patrol on January 2, 2000, Graham County Deputy
Sheriff Michael Kieffer stopped a speeding vehicle. The driver was
“Jane Doe,”1 the sister of Graham County Sheriff Frank Hughes
(Petitioner). During the traffic stop, Deputy Kieffer saw what
appeared to be drugs and drug paraphernalia in Jane Doe’s car. She
was agitated and belligerent during the stop, prompting Kieffer to
call Hughes for assistance in calming her down. Sheriff Hughes
arrived, calmed his sister, then told Kieffer that if he decided to
arrest Doe, he should take her to the hospital first. Kieffer
released Jane Doe to Hughes’ custody, and Hughes took her to her
home. Neither officer arrested her.
¶3 Later that evening, Deputy Kieffer asked Sheriff Hughes
whether he should prepare a report of the incident. Hughes
instructed Kieffer to await further instruction. The next day,
Sheriff Hughes met with Undersheriff David Boyd and instructed him
that all decisions regarding Jane Doe’s case would be left to Boyd.
¶4 On January 14, 2000, Hughes asked Deputy Kieffer to
prepare a report of the incident. After reviewing the report
1
Because Jane Doe’s identity, other than her relationship
to Petitioner Frank Hughes, is not relevant to the case, we
identify her only by a fictitious name.
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approximately a week later, Hughes asked Kieffer to omit certain
information and make some suggested editorial changes.
Undersheriff Boyd, who was supervising the investigation, agreed
with the decision to edit the report and with the edits themselves.
The edited report includes relevant details of the traffic stop,
but omits facts that could be considered irrelevant or personal.2
Hughes asked Deputy Sheriff Glen Orr, who had also responded to the
scene on January 2, to write a report. Finally, Hughes prepared
his own report. All reports and evidence were given to
Undersheriff Boyd.
¶5 Apparently, no charges resulting from the January 2
incident were ever brought against Jane Doe. However, the State
charged Sheriff Hughes with obstructing a criminal prosecution,
conducting a fraudulent scheme, and wilful concealment of evidence.
See A.R.S. §§ 13-2409 (2001) (obstruction), 13-2311 (2001)
(fraudulent scheme and concealment). Four months later, the State
added an additional charge of conflict of interest, in violation of
A.R.S. § 38-503(B).
¶6 At a preliminary hearing on October 20, 2000, the trial
court found probable cause to believe that Hughes had committed the
crimes charged. Hughes requested a new determination of probable
cause regarding the conflict of interest charge, but the finding
2
We have reviewed both reports and a composite version
showing the changes.
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was affirmed following an evidentiary hearing before a different
judge. The court of appeals declined jurisdiction of Hughes’s
special action.
¶7 We granted review to determine whether the term
“substantial interest” as it is used in A.R.S. § 38-508(B) (2001)
encompasses Sheriff Hughes’ conduct. See Ariz. Const. art. 6, §
5.3; ARCAP 23 (authorizing court’s exercise of jurisdiction); see
also Paradigm Ins. Co. v. Langerman Law Offices, 200 Ariz. 146,
147, ¶ 1, 24 P.3d 593, 594 (2001) (approving exercise of
jurisdiction for questions of first impression and those that may
have significant impact). We also granted review because, if
convicted of the conflict of interest charge, the Sheriff will be
required to resign his office. See A.R.S. § 38-510(B) (2001). The
prosecution of all three charges has been stayed pending our
decision here.
DISCUSSION
¶8 Arizona’s conflict of interest statute precludes any
public official who has a substantial interest in a public decision
from participating in the decision-making process without making
his interest known:
Any public officer or employee who has, or
whose relative has, a substantial interest in
any decision of a public agency shall make
known such interest in the official records of
such public agency and shall refrain from
participating in any manner as an officer or
employee in such decision.
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A.R.S. § 38-503(B) (emphasis added). A “substantial interest” is
“any pecuniary or proprietary interest, either direct or indirect,
other than a remote interest.” A.R.S. § 38-502(11) (2001).
Because we conclude that Hughes’s interests here are not
“substantial pecuniary or proprietary interests,” we need not
determine whether those interests are too remote to qualify under
the statute.3
¶9 The State argues that Hughes’s conduct falls within the
ambit of the conflict of interest statute because both Hughes and
his sister “had some financial interest to gain or lose by [Jane
Doe’s] arrest, incarceration, and prosecution for drug
possession.”4 Hughes’s pecuniary interest, the State asserts, is
that the voters might refuse to vote for him if they thought that
he had given special treatment to a family member. Jane Doe’s
asserted pecuniary interest is that her arrest and potential
conviction on drug charges might result in economic loss to her:
potential fines, possible forfeiture of property, and – if she were
3
The legislature has defined “remote interests” as those
falling within any of several categories of interests, none of
which is relevant to our determination here. A.R.S. § 38-502(10).
4
The State has apparently abandoned its claim that Jane
Doe’s liberty interest in avoiding incarceration is a “substantial
interest” within the meaning of A.R.S. § 38-503. Whether the State
abandoned the theory because a liberty interest is not a pecuniary
or proprietary interest or because of the unlikelihood that Jane
Doe would have been incarcerated even if convicted of simple drug
possession is unclear, but is no longer important. See A.R.S. §
13-901.01 (2001) (requiring treatment and probation for first or
second personal possession convictions).
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employed – potential loss of employment and related benefits.
¶10 Hughes responds that these asserted interests are not
“substantial interests” for purposes of the conflict of interest
statute because they are neither pecuniary or proprietary nor are
they direct. Hughes points to the complete lack of evidence of any
direct, non-speculative, non-contingent pecuniary or proprietary
interests that either he or his sister had in his conduct.
¶11 In construing A.R.S. § 38-503(B), we must determine
whether the legislature intended “substantial interest” to include
the interests at stake in a possible criminal prosecution. See,
e.g., UNUM Life Ins. Co. v. Craig, 200 Ariz. 327, 329-30, ¶ 11, 26
P.3d 510, 512-13 (2001) (“The primary aim of statutory construction
is to find and give effect to legislative intent.”).5 Generally,
if a statute is clear, we simply “apply it without using other
means of construction,” id. at 330, ¶ 12, 26 P.3d at 513, assuming
that the legislature has said what it means. When a statute is
ambiguous or unclear, however, “we attempt to determine legislative
intent by interpreting the statutory scheme as a whole and consider
‘the statute’s context, subject matter, historical background,
effects and consequences, and spirit and purpose.’” Id. (quoting
Aros v. Beneficial Ariz., Inc., 194 Ariz. 62, 66, 977 P.2d 784, 788
5
But intent must be objectively indicated or at least
clearly manifested by the language of the statute. We cannot be
asked to guess at the legislature’s subjective intent. Stated
succinctly, we must be able to reach our conclusion “by analysis of
the statute instead of by psychoanalysis of [the legislature].”
United States v. Pub. Utils. Comm’n, 345 U.S. 295, 319 (1953)
(Jackson, J., concurring).
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(1999)); see also A.R.S. § 1-213 (1994) (“Words and phrases shall
be construed according to the common and approved use of the
language.”).
¶12 The conflict of interest statute at issue is unambiguous:
Section 38-503(B), when read incorporating the definition in
section 38-502(11), clearly reflects that substantial interests are
non-remote pecuniary or proprietary interests. The case law in
this area confirms such an interpretation.
¶13 In Yetman v. Naumann, 16 Ariz. App. 314, 317, 492 P.2d
1252, 1255 (1972), for example, the court of appeals rejected a
construction of “interest” that included “a mere abstract interest
in the general subject or a mere possible contingent interest.” In
finding the language of A.R.S. § 38-503 not impermissibly vague,
the court reasoned that “the term [pecuniary interest] refers to a
pecuniary or proprietary interest by which a person will gain or
lose something[,] as contrasted to general sympathy, feeling or
bias.” Id. In the case now before us, the record does not show
that Hughes stands to lose more than perhaps the votes of his
constituents if the State proves that he interfered in his sister’s
case or if his sister is convicted of possession of drugs.
¶14 In Shepherd v. Platt, 177 Ariz. 63, 865 P.2d 107 (App.
1993), the court of appeals determined that Navajo tribal members
who served as county supervisors had not violated the conflict of
interest statute in their decisions regarding county expenditures
on the Navajo Reservation. Noting that a conflict exists within
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the meaning of A.R.S. § 38-503 only “when a public official [or a
relative] has a substantial pecuniary or proprietary interest in
one of his or her decisions,” id. at 65, 865 P.2d at 109, the court
succinctly defined the terms at issue: “[p]ecuniary means money
and proprietary means ownership.” Id.
¶15 When facing a related issue in 1988, the court of appeals
similarly concluded that a member of a state agricultural board who
worked for a company that belonged to a lobbying group arguably
affected by a board decision did not violate the conflict of
interest statute. See Arizona Farmworkers Union v. Agric.
Employment Relations Bd., 158 Ariz. 411, 762 P.2d 1365 (App. 1988).
In doing so, the court focused on the individual’s interest in the
decision: “[I]t does not appear that [the board member] would gain
or lose financially from the decision in this case.” Id. at 413,
762 P.2d at 1367. Speculation regarding the individual’s interest,
the Farmworkers court concluded, “defines a contingent or remote
interest,” which is not covered by the conflict of interest
statute. Id.
¶16 These cases make clear that to violate the conflict of
interest statute, a public official must have a non-speculative,
non-remote pecuniary or proprietary interest in the decision at
issue. The statutes require public officials to disclose potential
conflicts and, in most instances, to then refrain from acting on
issues on which the conflict exists. See A.R.S. § 38-503; cf. §
38-508(B) (allowing an official with an “apparent” conflict to act
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under certain circumstances).
¶17 The trial court relied on dictum from United Farm Workers
v. Arizona Agricultural Employment Relations Board, 727 F.2d 1475
(9th Cir. 1984), to support the finding of probable cause.
Although the Ninth Circuit did state, in a non-criminal case, that
the “conflict of interest statute pertains to any decision of a
public agency and prohibits any substantial interest in any
decision of the public agency,” id. at 1478, it did so in dictum in
a context far different from that in the case now before us.
Rather than determining the contours of the definition of
“substantial interest,” the Ninth Circuit was deciding whether the
Arizona Agricultural Employment Relations Board was
unconstitutionally constituted because its membership consisted of
members of management and members of “organized agricultural labor”
– members who, the appellants there claimed, had a built-in
“conflict of interest.” The Ninth Circuit found that the board was
constitutionally composed. It did not purport to determine the
question now before this court.
¶18 The history of the statute also confirms that
“substantial interest” refers to non-remote interests that are
pecuniary or proprietary in nature. Most clearly supporting that
construction of the term is a 1978 amendment that added the phrase
“pecuniary or proprietary” to the definition of substantial
interest. See A.R.S. § 38-502(11). The 1978 amendment also added
language to the definition of “remote interest” that suggests that
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the legislature was concerned only with economic conflicts of
interest. A.R.S. § 38-502(10)(i) (non-remote interest must, among
other things, “confer a direct economic benefit or
detriment . . .”). Of lesser value in our determination are notes
from committee hearings regarding the 1978 amendment suggesting
that legislators were concerned with purely economic conflicts.
¶19 Finally, and dispositively, this court will not define
the edges of meanings of terms in a statute in a criminal
prosecution. See United States v. Bass, 404 U.S. 336, 347-49
(1971) (due process requires that ambiguities in criminal statutes
be construed in favor of the defendant); State v. Tarango, 185
Ariz. 208, 210, 914 P.2d 1300, 1302 (1996) (if “statute is
susceptible to more than one interpretation, . . . doubt should be
resolved in favor of the defendant”), opinion adhered to on
rehearing, State v. Ariz. Dep’t of Corrections, 187 Ariz. 211, 928
P.2d 635 (1996). Should the legislature wish to expand the
definition of pecuniary and proprietary interest to include liberty
interests or remote or contingent interests, it may do so, within
constitutional limits. But this court will not expand the
definition of “conflict of interest” in a criminal prosecution to
include conduct that does not clearly fall within the plain meaning
of the statute under which the defendant is charged, as that
meaning may be ascertained from the language of the statute, the
interpretation of the statute by the courts of this state, or the
statute’s legislative history.
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¶20 The State acknowledges that it did not present any
evidence to the trial court of any direct, non-speculative economic
benefits or detriments that faced either Hughes or his sister. The
State’s inability to direct the court to anything in the record
showing a non-remote, non-speculative pecuniary impact on either
Hughes or his sister dooms its case.
CONCLUSION
¶21 The interests involved in this criminal prosecution do
not fall within the scope of the conflict of interest statute.
Absent any proof of non-remote pecuniary or proprietary interests,
the trial court’s finding of probable cause was in error. We
therefore reverse the finding of probable cause, dismiss this
charge against Hughes, and dissolve the stay granted on January 16,
2002.
Rebecca White Berch, Justice
CONCURRING:
Charles E. Jones, Chief Justice
Ruth V. McGregor, Vice Chief Justice
Stanley G. Feldman, Justice
Thomas A. Zlaket, Justice (Retired)
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