SUPREME COURT OF ARIZONA En Banc
AILEEN H. CHAR LIFE INTEREST, ) Arizona Supreme Court 629 INVESTMENTS, A HAWAII ) No. CV-03-0348-PR PARTNERSHIP, REMAINDER INTEREST; ) AIMCO PROPERTIES LP; ) Court of Appeals AIMCO/BLOSSOMTREE APTS LP; ) Division One AL-SAID ANNA F T; ALTA PLACE ) Nos. 1 CA-TX 02-0003 PROPERTY INC.; ARCADIA VILLA ) 1 CA-TX 02-0013 APTS, LLC; ARIZONA GRANO-PALMS ) LTD; CAMINO APTS; CINNAMON ) Maricopa County Superior PROPERTIES; CON AM REALTY ) Court INVESTORS; COOK INLET REGION OF ) Nos. TX 98-00413 ARIZONA INC; DELCASTELLO IRENE ) TX 98-00419 TRUST; EQR VILLA MANANA VISTAS ) TX 98-00422 INC; EQR-WATSON GP; EQUITY ) RESIDENTIAL PROPERTIES; ERP ) OPERATING LP; EVANS WITHYCOMBE ) FINANCE PSHP SUITE A200; EVANS ) WITHYCOMBE FINANCE PARTNERSHIP ) LP; EVANS WITHYCOMBE ) RESIDENTIAL; EVANS WITHYCOMBE ) RESIDENTIAL LP; FOREST PARK LLC; ) G & E HOLDINGS INC; GREENWAY ) PHOENIX ASSOCIATION LTD ) PARTNERSHIP; HEATHERWOOD ) INVESTORS LTD PARTNERSHIP; ) LAURELS SADDLE CLUB LP; MAGELLAN ) NORTHWOOD INC; MARIPOSA JOINT ) O P I N I O N VENTURE; MORARU, PETER & ) ELIZABETH; MOUNTAIN VIEW ) CASITAS LP; NHP SUMMER LP; ) ORCHARD MESA ASSOCIATES LTD ) PARTNERSHIP; OTC APARTMENTS LP; ) PARKSIDE; PARKSIDE PARTNERSHIP; ) PASO ROBLES LLC; PHOENIX ) COURTYARDS LTD PARTNERSHIP; PINE ) SPRINGS LLC; PROFESSIONAL ) PROPERTY INV LTD; SCOTTSDALE ) PALMS LTD PARTNERSHIP; SMITH ) MELVIN W JR & MARJORIE L TR; ) SUNSET SHADOWS INC; SUNSHINE ) LAND ASSOCIATES LP; THE PHOENIX ) APTS LLC; THE S DEVELOPMENT ) COMPANY; THOMSON THOMAS J; TPOC ) LTD LIABILITY CO; VERDE ) INVESTMENT INC; W. L. PROPERTIES ) LLC; WELLSFORD RESIDENTIAL ) TRUST; YF PARTNERS GREEN LP ) ) Plaintiffs-Appellees, ) ) v. ) ) MARICOPA COUNTY, a political ) subdivision of the State of ) Arizona, ) ) Defendant-Appellant. ) __________________________________) ) ANTHEM DUNLAP SQUARE, LLC, a ) limited liability company, ) ) Plaintiff-Appellee, ) ) v. ) ) MARICOPA COUNTY, a political ) subdivision of the State of ) Arizona, ) ) Defendant-Appellant. ) __________________________________) ) CENTURY PROPERTIES FUND XIX; ) FARNAM COMPANIES INC; ) FEIGA/CIMMARON LP; PACIFIC ) CORINTHIAN LIFE INSURANCE; ) RONALD L. HERRICK TRUSTEE; SANO ) CORPORATION; WHITE, HOWELL AND ) HALL, LLC, ) ) Plaintiffs-Appellees, ) ) v. ) ) MARICOPA COUNTY, a political )
2 subdivision of the State of ) Arizona, ) ) Defendant-Appellant. ) __________________________________) ) AILEEN H. CHAR LIFE INTEREST, ) 629 INVESTMENTS, A HAWAII ) PARTNERSHIP, REMAINDER INTEREST; ) AIMCO PROPERTIES LP; ) AIMCO/BLOSSOMTREE APTS LP; ) ALSAID ANNA F T; ALTA PLACE ) PROPERTY INC; ARCADIA VILLA ) APTS. LLC; ARIZONA GRANO-PALMS ) LTD; CAMINO APTS; CINNAMON ) PROPERTIES; CON AM REALTY ) INVESTORS; COOK INLET REGION OF ) ARIZONA INC; DELCASTELLO IRENE ) TRUST; EQR-WATSON GP; EQUITY ) RESIDENTIAL PROPERTIES; ERP ) OPERATING LP; EVANS WITHYCOMBE ) FINANCE PSHP SUITE A200; EVANS ) WITHYCOMBE FINANCE PARTNERSHIP ) L.P.; EVANS WITHYCOMBE ) RESIDENTIAL; EVANS WITHYCOMBE ) RESIDENTIAL LP; FOREST PART LLC; ) G & E HOLDINGS INC; GLENWAY ) PHOENIX ASSOC LED PARTNERSHIP; ) LEATHERWOOD INVESTORS LED ) PARTNERSHIP; LAURELS SADDLE CLUB ) LP; MAGELLAN NORTHWOOD, INC; ) MARIPOSA JOINT VENTURE; MORARU, ) PETER & ELIZABETH; MOUNTAIN VIEW ) CASITAS LP; NHP SUMMER, L.P.; ) ORCHARD MESA ASSOCIATED LTD ) PARTNERSHIP; OTC APARTMENTS LP; ) PARKSIDE; PARKSIDE PARTNERSHIP; ) PASO ROBLES LLC; PHOENIX ) COURTYARDS LTD PARTNERSHIP; PINE ) SPRINGS, LLC; PROFESSIONAL ) PROPERTY INV LTD; SCOTTSDALE ) PALMS LTD PARTNERSHIP; SMITH ) MELVIN W JR & MARJORIE L TR; ) SUNSET SHADOWS, INC,; SUNSHINE ) LAND ASSOCIATES LP; THE PHOENIX ) ARTS LLC; THE S DEVELOPMENT ) COMPANY; THOMSON THOMAS J; TPOC )
3 LTD LIABILITY CO; VERDE ) INVESTMENTS, INC,; W. L. ) PROPERTIES, LLC; WELLSFORD ) RESIDENTIAL TRUST; YF PARTNERS ) GREEN LP, ) ) Plaintiffs-Appellants, ) Cross-Appellees, ) ) v. ) ) MARICOPA COUNTY, a political ) subdivision of the State of ) Arizona; and the DEPARTMENT OF ) REVENUE OF THE STATE OF ARIZONA, ) ) Defendants-Appellees, ) Cross-Appellants. ) ) __________________________________)
Appeal from the Arizona Tax Court Nos. TX 98-00413, TX 98-00419, TX 98-00422 The Honorable Jeffrey S. Cates Affirmed in Part; Reversed in Part; Remanded
Memorandum Decision of Court of Appeals, Division One 1 CA-TX 02-0003, 1 CA-TX 02-0013, Filed September 2, 2003 Vacated
Fennemore Craig, P.C. Phoenix by Paul J. Mooney Jim L. Wright and Paul Moore Attorneys for Aileen H. Char, et al.
Helm & Kyle, LTD Tempe by Roberta S. Livesay and Lisa J. Bowey Special Counsel for Maricopa County
Terry Goddard, Attorney General Phoenix by Frank Boucek, III, Assistant Attorney General Attorneys for Arizona Department of Revenue _________________________________________________________________
4 M c G R E G O R, Vice Chief Justice
¶1 We granted review to clarify the elements a taxpayer
must prove to establish discriminatory property tax valuation in
violation of Arizona’s Uniformity Clause. Ariz. Const. art. IX,
§ 1. We exercise jurisdiction pursuant to Article VI, Section
5.3 of the Arizona Constitution, Rule 23 of the Arizona Rules of
Civil Appellate Procedure, and Arizona Revised Statutes (A.R.S.)
§ 12-120.24 (2003).
I.
¶2 A group of property owners (the Taxpayers) brought
this action against Maricopa County and the Arizona Department
of Revenue (ADOR) to recover taxes allegedly collected
illegally. The Taxpayers contend that the Maricopa County
Assessor valued their apartment properties (Taxpayers’
properties) in a discriminatory manner and thus violated the
Uniformity Clause of the Arizona Constitution, Article IX,
Section 1, and the Equal Protection Clause of the United States
Constitution, Amendment XIV, Section 1. The Taxpayers sought a
property tax refund under A.R.S. § 42-204.C (Supp. 1997),
repealed by 1997 Ariz. Sess. Laws, Ch. 150, § 9 (repeal
effective 1999).1
1 At the time in question, A.R.S. § 42-204.C stated:
5 ¶3 For tax years 1996 and 1997, as in previous years, the
Maricopa County Assessor implemented a computer program
(valuation program) to determine the values of commercial
properties, including multi-family residential properties,
located in Maricopa County.2 The valuation program calculated
each property’s value using a computerized cost model. The
county assessor, however, programmed the valuation program to
“roll over” or “freeze” the value of certain parcels. If a
multi-family residential property owner previously had appealed
the property’s valuation, the valuation program would roll over
that property’s valuation until one of several actions occurred.3
__________________ [W]ithin one year after payment of the first installment of the tax, an action may be maintained to recover any tax illegally collected, and if the tax due is determined to be less than the amount paid, the excess shall be refunded in the manner provided by this title. Interest at the legal rate on the overpayment shall be payable from the date of overpayment. For the purpose of computing interest under any such judgment, if the tax was paid in installments, a pro rata share of the total overpayment shall be deemed attributable to each installment.
A.R.S. § 42-204.C (Supp. 1997), repealed by 1997 Ariz. Sess. Laws, Ch. 150, § 9 (repeal effective 1999). 2 We view the record in the light most favorable to upholding the tax court’s judgment. See, e.g., Hutcherson v. City of Phoenix, 192 Ariz. 51, 53 ¶ 13, 961 P.2d 449, 451 (1998); McFarlin v. Hall, 127 Ariz. 220, 224, 619 P.2d 729, 733 (1980). 3 For example, the assessor would revalue the property rather than roll over its valuation if the assessor revalued the property’s land, the property owner constructed new improvements
6 The valuation of these roll-over properties did not change from
1996 to 1997. If the valuation program did not roll over the
value of a multi-family residential parcel, or if the parcel’s
value was not manually entered into the County’s computer
system, the assessor retained the value assigned by the
valuation program.
¶4 The Taxpayers own sixty-two multi-family residential
parcels in Maricopa County, all among the group of properties
that the assessor valued by applying the cost model used as part
of the valuation program. The tax court, comparing the
valuations for 1996 and 1997, found that the Taxpayers’
properties’ valuations increased by an average of 37.6 percent,
while the roll-over properties’ valuations remained unchanged.
The tax court then entered judgment in favor of the Taxpayers
and ordered the County to refund to the Taxpayers “the
difference between the 1996 property valuations and the 1997
increased property valuations of their properties.” The County
appealed the tax court’s decision.
¶5 The court of appeals reversed. In its memorandum
decision, the court relied primarily upon its conclusion that
the tax court “failed to require evidence of disproportionate
__________________ or changed the use of the property, or the assessor manually changed the property’s value.
7 valuation with respect to the properties’ full cash value.”4
Aileen H. Char Life Interest v. Maricopa County, 1 CA-TX 02-0003
& 1 CA-TX 02-0013 at ¶ 11 (Ariz. App. Sept. 2, 2003) (mem.
decision).
¶6 The Taxpayers petitioned this court for review. We
accepted review to clarify the proper standard to apply in
determining whether unlawful discrimination has occurred under
Arizona’s Uniformity Clause. We will not set aside the tax
court’s findings unless clearly erroneous. Ariz. R. Civ. Proc.
52(a). Whether the tax court applied the proper legal standard,
however, presents a question of law reviewed de novo. Transp.
Ins. Co. v. Bruining, 186 Ariz. 224, 226, 921 P.2d 24,
26 (1996).
II.
¶7 The Arizona Constitution requires that “all taxes
shall be uniform upon the same class of property within the
territorial limits of the authority levying the tax.” Ariz.
4 The court of appeals also held that the tax court erred in allowing the Taxpayers to voluntarily dismiss Parcel 158-02-005. The court concluded that the dismissal of Parcel 158-02-005 did not comply with Arizona Rule of Civil Procedure 41(a)(1) because “the dismissal was entered in the absence of a stipulation signed by the County and the ADOR, and occurred after the court had issued findings of fact and conclusions of law.” Aileen H. Char Life Interest, 1 CA-TX 02-0003 & 1 CA-TX 02-0013, mem. dec. at ¶ 33; see also Ariz. R. Civ. P. 41(a)(1) (“[A]n action may be dismissed . . . by order of the court pursuant to a stipulation of dismissal signed by all parties who have appeared in the
8 Const. art. IX, § 1. Arizona’s Uniformity Clause provides
greater protection for taxpayers than does the Equal Protection
Clause of the Fourteenth Amendment and is designed “to ensure
‘that each taxpayer’s property bear the just proportion of the
property tax burden.’” Am. West Airlines, Inc. v. Ariz. Dep’t
of Revenue, 179 Ariz. 528, 530-31, 880 P.2d 1074, 1076-77 (1994)
(quoting Merris v. Ada County, 593 P.2d 394, 398 (Idaho 1979)).
¶8 Four general elements comprise the formula by which
Arizona measures a property tax: classification, valuation,
assessment ratio, and tax rate. See, e.g., Berge Ford, Inc. v.
Maricopa County, 172 Ariz. 483, 485, 838 P.2d 822, 824 (Tax Ct.
1992). The first step, classification, involves the exercise of
legislative power. Exercising this power, the Arizona
legislature has established statutory classes of property. See
A.R.S. §§ 42-12001 to -12010 (Supp. 2003). For most property in
Arizona, a county assessor carries out the second step,
valuation. An assessment ratio, dictated by the legislative
classification, is then applied to the valuation. See A.R.S. §§
42-15001 to -15010 (Supp. 2003). This result represents the
property’s assessed value. Finally, the applicable tax rate is
applied to the property’s assessed value to produce the amount
of taxes due.
__________________ action.”). We agree and adopt this holding of the court of appeals.
9 ¶9 In this case, the Taxpayers’ challenge involves the
second step in the property tax formula, the county assessor’s
valuation of their properties. The Taxpayers do not argue that
the assessor valued their properties in excess of full cash
value, placed them in the wrong legislative classification, or
applied a discriminatory tax rate or assessment ratio. Instead,
the Taxpayers argue that the alleged undervaluation of similarly
situated properties resulted in the Taxpayers being forced to
bear a disproportionate share of the property tax burden. We
use the term “discriminatory valuation” to describe this type of
case.
¶10 We defined the elements a taxpayer must prove to make
out a case of discriminatory valuation in McCluskey v. Sparks,
80 Ariz. 15, 19, 291 P.2d 791, 793 (1955). In McCluskey,
without determining whether the particular facts presented
amounted to discrimination in violation of the Uniformity
Clause, we concluded that the “[d]eliberate and systematic
undervaluation of [a taxpayer’s] property at a figure greatly in
excess of the undervaluation of other like properties amounts to
a violation of the Arizona [C]onstitution.” Id. To prove
discriminatory valuation, then, a taxpayer must establish (1)
that the taxing officials engaged in deliberate and systematic
conduct and (2) that such conduct resulted in “great
inequality,” a finding that requires the court to define the
10 appropriate class of property for evaluating the claim of
discriminatory valuation and then to find greatly
disproportionate tax treatment within the defined class.
¶11 The County asserts that the Taxpayers must prove each
element of their prima facie case beyond a reasonable doubt.
The authority upon which the County relies for that proposition,
however, refers to challenges to the constitutionality of a
statute. See, e.g., Magellan S. Mountain Ltd. v. Maricopa
County, 192 Ariz. 499, 968 P.2d 103 (App. 1998) (holding that
statute, which allowed revaluation of real property after
January 1 of the valuation year, did not violate the federal
Equal Protection Clause or the Uniformity Clause); Tucson Elec.
Power Co. v. Apache County, 185 Ariz. 5, 912 P.2d 9 (App. 1995)
(holding that provision of tax statute taxing mining and utility
properties at a higher rate than other properties to be an
unconstitutional special law). This matter involves not a
challenge to the constitutionality of a statute, but a claim
that the County imposed a discriminatory tax on the Taxpayers.
We perceive no reason to depart from the usual rule that a
plaintiff must establish each element of a civil action by a
preponderance of the evidence, and we hold that standard
applies.
11 A.
¶12 In a discriminatory valuation case, “there must be
something more than a dispute between the taxpayers and the
taxing officials as to the valuation placed upon their
properties.” McCluskey, 80 Ariz. at 19, 291 P.2d at 794.
“Before the court will interfere, it must be clearly shown that
assessments which are unequal are the result of systematic and
intentional conduct and not mere error in judgment.” Id. at 20,
291 P.2d at 794. Moreover, “[t]he mere fact that the assessing
officials believed their conduct was valid does not render it
less vulnerable to attack as discriminatory.” Id. Finally,
deliberate and systematic conduct need not be malicious, only
purposeful.
¶13 The County does not seriously dispute that the
challenged valuations resulted from systematic and intentional
conduct. At the time in question, Arizona statutes limited the
circumstances under which an assessor could “roll over” a
property valuation:
In the year subsequent to an appeal, the valuation or classification of property shall be the valuation or classification that was determined in the prior year at the highest level of appeal unless the assessor reviews the current facts which apply to a revaluation or a change in the classification and determines that an adjustment in the valuation or a change in the classification is appropriate.
12 A.R.S. § 42-247.A (Supp. 1997), repealed by 1997 Ariz. Sess.
Laws, Ch. 150, § 9 (repeal effective 1999); see also A.R.S. §
42-16002.B (Supp. 2003). Despite the language of A.R.S. § 42-
247.A, the County developed and implemented a policy to “roll
over” property values on certain apartment parcels for more than
one year. To do so, the assessor programmed the County’s
computer system to roll over the value of certain properties,
while using the cost model to determine the valuation of other
properties. The evidence at trial indicated that this program
resulted in the County rolling over the values of approximately
fifty percent of the apartment parcels but valuing more than
forty percent of the apartment parcels, including the Taxpayers’
properties, using the cost model. The Taxpayers, therefore, met
their burden of establishing that the County intentionally and
systematically used a method of valuing their property different
from that the County used to value the roll-over properties.
¶14 As we made clear in McCluskey, however, “different
modes of assessment on the same class of property will not
render the same invalid unless in fact they operate to produce
discriminatory inequality.” 80 Ariz. at 20, 291 P.2d at 794;
see also Sec. Props. v. Ariz. Dep’t of Prop. Valuation, 112
Ariz. 54, 56, 537 P.2d 924, 926 (1975) (“Neither the change in
value of a particular parcel of property nor the total changes
in assessments considered in the aggregate raise any question as
13 to the legality of the assessment. There must be more.”). We
therefore turn to the issue of whether the County’s program
resulted in great inequality. To make this determination, we
must first determine the appropriate class for evaluating the
Taxpayers’ claim of discriminatory valuation.
B.
¶15 Arizona’s Uniformity Clause requires that taxes be
uniform upon the same class of property. Ariz. Const. art. IX,
§ 1. We examined the meaning of the word “class,” for
Uniformity Clause purposes, in Apache County v. Atchison, Topeka
and Santa Fe Railway Co., 106 Ariz. 356, 476 P.2d 657 (1970).
In that case, we stated:
A class may be the grouping together of persons or things for a common purpose or it may be a ranking of persons or things possessing the same attributes. . . . The word “class,” however, in Article IX, § 1 is obviously used in the latter sense, meaning the grouping of persons or things possessing common attributes.
Id. at 359, 476 P.2d at 660 (citations omitted). As Apache
County and our subsequent decisions make clear, the proper class
of property to use in evaluating claims of discriminatory
valuation consists of those similarly situated properties
possessing common attributes “based on the nature of the
property or on some other real difference in its use, utility,
or productivity.” Am. West Airlines, Inc., 179 Ariz. at 535,
880 P.2d at 1081.
14 ¶16 In this case, the tax court found that the “multi-
family residential property classification is a valid
classification to which an unlawful tax discrimination analysis
can be applied.” Relying on Hillock v. Bade, 22 Ariz. App. 46,
523 P.2d 97 (1974), aff'd, 111 Ariz. 585, 535 P.2d 1302 (1975),
the County argues that the tax court erred by not defining the
relevant class as all property in Maricopa County.5 We disagree.
In Hillock, a taxpayer challenged Pima County’s three-year
cyclical revaluation plan mandated by a statewide revaluation
program. 22 Ariz. App. at 49, 523 P.2d at 100. In holding that
“the Pima County cyclical revaluation plan did not involve
intentional and arbitrary discrimination,” the court explained
that a number of factors were relevant to this determination,
5 The County also argues that the inclusion of some “horizontal regimes” and “associated parcels” destroys the homogeneity of the “multi-family residential” classification. According to the tax court’s findings, “horizontal regimes” are individual apartment units with separate parcel numbers. “Associated parcels,” on the other hand, contain a portion of an apartment complex, but have separate parcel numbers from the rest of the complex. Although the County presented evidence that the existence of these properties rendered the Taxpayers’ proffered class improper, the tax court, after considering the County’s arguments, found that “the County failed to show how the inclusion and exclusion of these properties has any significant effect on the necessary discrimination analysis.” We find no error in the tax court’s finding. In addition, contrary to the County’s assertions, the tax court’s finding does not indicate that the tax court improperly shifted the burden of proof to the County. Instead, the record is clear that the tax court placed the burden of proof on the Taxpayers to make out a prima facie case of discriminatory valuation.
15 including any discrimination that would result if the cyclical
plan were not instituted immediately. Specifically, the court
examined and rejected the taxpayer’s proposed alternative that
“the taxing authorities should have waited until the completion
of the three year revaluation program so that all new valuations
could be placed on the assessment rolls at the same time.” Id.
at 53-54, 523 P.2d at 104-05. The court reasoned:
[The taxpayer’s] discrimination claim must be viewed in a context involving all property situated in the State of Arizona subject to ad valorem property taxation. . . . Therefore to the extent that any particular type of property is undervalued, there is discrimination against all other property within the state, not just against property of that particular class within the particular county involved. When these circumstances are considered, we do not believe that the taxing authorities acted arbitrarily in adopting a cyclical three year plan requiring that the new valuations be placed on the assessment rolls yearly as developed, rather than waiting until all of the new valuations could be placed upon the rolls at the same time at the completion of the three year program.
Id. at 54, 523 P.2d at 105.
¶17 The language of Hillock, taken out of context, can be
read as supporting the broad proposition the County advances.
Hillock, however, did not mandate the use of geographic criteria
to define a peer group of properties to prove discriminatory
valuation. Instead, Hillock recognized the distinction between
systematic reappraisal and intentional discrimination.6 Indeed,
6 At the time the Taxpayers brought suit, A.R.S. § 42-221.B stated:
16 if the tax court in this case had found the appropriate class to
be all properties in Maricopa County, we doubt that class would
have possessed common attributes “based on the nature of the
property or on some other real difference in its use, utility,
880 P.2d at 1081; Apache County, 106 Ariz. at 359, 476 P.2d at
660.
¶18 As the County points out, the legislature has not
exercised its power to create statutory classes of property to
create a separate classification for “multi-family residential”
property. The “multi-family residential” classification adopted
__________________ In the case of property that is classified as class four, five or six pursuant to § 42-162, the assessor may use the same valuation for up to three consecutive tax years if the assessor files a specific plan for such valuations with the department and the plan is implemented uniformly throughout the county.
A.R.S. § 42-221.B (Supp. 1997), repealed by 1997 Ariz. Sess. Laws, Ch. 150, § 9 (repeal effective 1999); see also A.R.S. § 42-13052 (Supp. 2003). Class six property, at the time, encompassed real and personal property “devoted to use as leased or rented property solely for residential purposes.” A.R.S. § 42-162.A.6(a) (Supp. 1997), repealed by 1997 Ariz. Sess. Laws, Ch. 150, § 9 (repeal effective 1999); see also A.R.S. § 42- 12004.A.1 (Supp. 2003) (classifying real and personal property “used solely as leased or rented property for residential purposes” as class four property). Had the County followed the dictates of A.R.S. § 42-221.B in this case, Hillock very well may have supported reaching a different result. Arguably, if the County had filed a three-year valuation plan with the ADOR and implemented the plan uniformly throughout the county, its conduct would not have caused intentional and systematic discrimination. Because the record contains no evidence that
17 by the tax court, however, comes directly from the coding system
the County uses to identify property within the county for
assessment purposes.
¶19 Arizona’s statutes give the ADOR general oversight
responsibilities for Arizona’s property tax system. A.R.S. §
42-141 (Supp. 1997), repealed by 1997 Ariz. Sess. Laws, Ch. 150,
§ 9 (repeal effective 1999); see also A.R.S. §§ 42-11051 to -
11056 (1999); A.R.S. § 42-13002 (1999). At the time in
question, the relevant statute directed that the county assessor
“determine through the use of the manuals furnished and
procedures described by the department the full cash value of
all such property, as of January 1 of the next year.” A.R.S. §
42-221.B (Supp. 1997), repealed by 1997 Ariz. Sess. Laws, Ch.
150, § 9 (repeal effective 1999); see also A.R.S. § 11-542
(Supp. 2003) (requiring the county assessor to determine “all
the taxable property in said county at its full cash value”);
A.R.S. § 42-13051.B.2 (1999). To carry out this directive, the
County uses the ADOR’s Property Use Code Manual (the Manual),
which contains those codes that the ADOR authorizes for use in
the Arizona property tax system. The ADOR intends that county
assessors and others use the Manual for the purpose of
__________________ the County filed such a plan in this case, we do not resolve this issue.
18 identifying property according to use. Arizona Department of
Revenue, Property Use Code Manual at Foreword (1994).
¶20 According to the Manual, “[t]he purpose of property
use codes is to group and code like properties for
identification.” Id. at 1 (emphasis added). Consistent with
this purpose, the Manual sets out property use codes beginning
with the prefix “03” to identify properties with multi-family
residential property characteristics. The tax court found that
the Taxpayers’ properties fit within this group and, in fact,
had been so coded by the assessor. Because the identification
of property as “multi-family residential” accurately reflects
the property’s use, we agree with the tax court that this class
is appropriate for evaluating the Taxpayers’ claim of
discriminatory valuation. We therefore turn to the tax court’s
determination that the Taxpayers’ properties were subject to a
disproportionate valuation when compared to other properties
within the same class.
C.
¶21 To determine the proper standard for deciding whether
the government’s actions have produced a greatly
disproportionate valuation, we turn again to the language of the
Uniformity Clause, which requires that “all taxes shall be
uniform upon the same class of property within the territorial
limits of the authority levying the tax.” Ariz. Const. art. IX,
19 § 1. As this language makes clear, it is the tax paid, not the
numerical values assigned to property, that must be uniform.
Accordingly, to prevail in a valuation discrimination case, a
plaintiff must show tax treatment greatly unequal7 to that
afforded others in the same class and must do so by reference to
full cash value. See, e.g., S. Pac. Co. v. Cochise County, 92
Ariz. 395, 377 P.2d 770 (1963); McCluskey, 80 Ariz. at 19, 291
P.2d at 793. In McCluskey, we summarized the plaintiffs’
argument as follows:
Plaintiffs’ lawsuit in this case is based upon the alleged proposition that plaintiffs have been discriminated against by valuing other properties at below full cash value and, by the use of a method different from that used in valuing other properties, assessing or attempting to assess plaintiffs’ properties at a greatly disproportionate valuation.
80 Ariz. at 19, 291 P.2d at 793. We then concluded that
“[a]ssessing officials cannot systematically and intentionally
use different rules for measuring the value of property of the
same class if by the use thereof great inequality results.” Id.
at 20, 291 P.2d at 794.
¶22 Similarly, in Southern Pacific, the challenging
taxpayer alleged that “its property was assessed at not less
7 The requirement that a taxpayer show greatly unequal treatment reflects the fact that the “valuation of real property, whether done for taxation or investment purposes, is not subject to mathematical certainty” and that the assessment of taxes, therefore, need not be exactly equal. Bus. Realty of
20 than 89 per cent of full cash value but that other property
subject to assessment by the respective county assessors was
assessed at no more than 20 per cent of full cash value on the
average.” 92 Ariz. at 398, 377 P.2d at 772. We concluded that
“[i]f [a taxpayer] establishes that its property is being
assessed at a higher percentage of full cash value than other
properties, then . . . discrimination . . . will have been
shown.” Id. at 403, 377 P.2d at 776.
¶23 Although neither McCluskey nor Southern Pacific holds
that a taxpayer can show disproportionate valuation only by
reference to full cash value, the structure of Arizona’s tax
system requires that taxpayers in a discriminatory valuation
case demonstrate disproportional valuation using full cash
value.
¶24 For tax purposes, Arizona values all real property at
full cash value. A.R.S. § 42-221.B (Supp. 1997), repealed by
1997 Ariz. Sess. Laws, Ch. 150, § 9 (repeal effective 1999); see
also A.R.S. § 42-13051.B (1999). Under Arizona statutes, “full
cash value,” for property tax purposes, means “that value
determined as prescribed by statute. If no statutory method is
prescribed, full cash value is synonymous with market value
which means that estimate of value that is derived annually by
__________________ Ariz., Inc. v. Maricopa County, 181 Ariz. 551, 557, 892 P.2d 1340, 1346 (1995).
21 the use of standard appraisal methods and techniques.” A.R.S. §
42-201.4 (Supp. 1997), repealed by 1997 Ariz. Sess. Laws, Ch.
150, § 9 (repeal effective 1999); see also A.R.S. § 42-11001.5
(Supp. 2003).
¶25 To establish a greatly disproportionate valuation, a
taxpayer must present evidence from which the court can compare
the valuation of the disfavored properties as a percentage of
their full cash value and the valuation of other similarly
situated properties within the same class as a percentage of
their full cash value. The taxpayer bears the burden of
demonstrating the difference between a property’s valuation and
what the property’s value should have been.8 Once the taxpayer
presents such evidence, the court can determine whether the
taxpayer’s property was valued “greatly in excess of the
undervaluation of other like properties.” McCluskey, 80 Ariz.
at 19, 291 P.2d at 793.
¶26 In this case, the tax court found that “the improper
roll over of valuation for properties similarly situated to [the
Taxpayers’] properties resulted in a disproportional valuation
of [the Taxpayers’] properties.” Although the tax court did not
specify the legal standard upon which it based this finding,
8 “Valuation” refers to the final value placed upon a piece of property by the taxing authority. “Full cash value” refers to the amount required by statute or, otherwise stated, the amount a valuation should have been.
22 evidence of record, measured against the standard defined above,
supports the trial court’s finding.9 The assessor valued the
Taxpayers’ properties by using the cost approach.10 As our
statutes instruct, we presume that the County’s determination of
the value of a taxpayer’s property is correct. See A.R.S. § 42-
16212.C (Supp. 2003). Applying that presumption, the assessed
values for the Taxpayers’ properties, taken from the County’s
data, show both what the valuation of the Taxpayers’ properties
should have been and the valuation, in fact, given those
properties. Because, as to the Taxpayers’ properties, the
measures are the same, the Taxpayers’ properties were valued at
one hundred percent of their full cash value.
¶27 As noted above, the County used a different method to
value the roll-over properties and left the 1996 valuation of
these properties unchanged. To establish their claim of
disproportionate valuation, the Taxpayers needed to present
9 We will uphold a trial court’s factual findings if they are supported by competent evidence. See, e.g., Federoff v. Pioneer Title & Trust Co. of Ariz., 166 Ariz. 383, 388, 803 P.2d 104, 109 (1990). 10 The assessor used the cost approach method to determine “full cash value” in compliance with A.R.S. § 42-11001.5, which states, in part, that “[i]f no statutory method [for determining full cash value] is prescribed, full cash value is synonymous with market value which means the estimate of value that is derived annually by using standard appraisal methods and techniques.” The County apparently regarded the cost method as being a standard appraisal technique and thus in compliance with
23 evidence to support their claim that the roll-over valuations
differed from the full cash value of those properties. The
Taxpayers made this showing by introducing as evidence the
values derived by applying the cost model to calculate the full
cash value of the improvements to the roll-over properties. The
Taxpayers then combined this recalculated improvement value with
the full cash value of the roll-over properties’ land, again as
determined by the County’s own figures. Taken together, this
evidence shows that the roll-over properties were valued at
sixty-six percent of their full cash value while the Taxpayers’
properties were valued at one hundred percent of full cash
value. Through this evidence, the Taxpayers established the
elements of their claim of greatly disproportionate valuation.
¶28 The County, of course, was free to disprove any of the
Taxpayers’ contentions when it presented its defense. Rather
than do so, the County incorrectly insisted that the Taxpayers,
as part of their case in chief, bore the burden of disproving
all potential explanations for the disparity in valuation
between the two groups of properties.
¶29 The County’s primary argument involves the Taxpayers’
failure to show the value of the land portion of the roll-over
properties. As the County points out, the land values for the
__________________ the statutory requirement, and the Taxpayers do not dispute the use of the cost method to determine full cash value.
24 Taxpayers’ properties decreased approximately twenty-five
percent from 1996 to 1997, while the land values for the roll-
over properties apparently remained unchanged. The County
argues that because the Taxpayers failed to present evidence
indicating what the land values of the roll-over properties
would have been had they also been revalued, the tax court could
not determine the extent to which the roll-over properties’ land
values were overvalued. Because the Taxpayers did not
accurately evaluate both the land and the improvements of the
roll-over properties, the County asserts, the Taxpayers’ proof
violates the unitary theory of valuation. Transamerica Dev. Co.
v. County of Maricopa, 107 Ariz. 396, 399, 489 P.2d 33, 36
(1971) (“[P]roperty valuation must be considered one subject,
not to be broken into separate components of land and
improvements. . . . In other words, if the total valuation
represents the full cash value of the property, it is immaterial
for purposes of appeal that one part is overvalued and the other
is undervalued.”).
¶30 The County could have presented evidence, if such were
available,11 to rebut the Taxpayers’ evidence showing
11 Our own review of the evidence of record suggests that, even if the land values for the roll-over properties were reduced by twenty-five percent, the greatly disproportionate valuation found by the trial court remains. In fact, because land values account for less than twenty percent of the value of
25 disproportionate valuation. But the responsibility for doing so
rested with the County as its defense to the showing made by the
Taxpayers. The tax court, having heard and weighed the evidence
presented by the Taxpayers and the County, accepted the
Taxpayers’ proffered evidence of disproportionate valuation.
The evidence of record provides a sufficient basis to support
the tax court’s finding that the Taxpayers were the subject of a
disproportionate valuation in violation of the Uniformity
Clause.
III.
¶31 The County also challenged the tax court’s choice of
remedy. The tax court ordered that “the County refund [the
Taxpayers] the difference between the 1996 property valuations
and the 1997 increased property valuations of their properties.”
In so ordering, the tax court relied on Gosnell Development
Corp. v. Arizona Department of Revenue, 154 Ariz. 539, 744 P.2d
451 (App. 1987), in which the court stated:
There can be no question that under applicable case law, Gosnell has been the victim of unconstitutional discrimination. That unequal treatment must be remedied. In the numerous cases in which a taxpayer was adjudged to have been deprived of equal protection under the law as a result of unequal tax treatment, the taxpayer’s remedy is that which places him on a par with the favored taxpayers. . . . “If a ruling is or should be prospective only, the past tax can no longer be said to be validly imposed even though, by itself, __________________ both groups of properties, a greatly disproportionate valuation would likely remain even if the land values are reduced to zero.
26 it falls squarely under the coverage of some tax- imposing [law]. . . . Conversely, to the extent the amount of the tax has already been collected, it becomes an ‘overpayment’ which is subject to refund . . . .”
Id. at 542, 744 P.2d at 454 (quoting Int’l Bus. Mach. Corp. v.
United States, 343 F.2d 914, 920 (Ct. Cl. 1966) (emphasis
added)); see also A.R.S. § 42-11005.B (1999) (“If the court
determines that the tax due is less than the amount paid, the
excess shall be refunded . . . .”).
¶32 The court of appeals again reached that conclusion in
Scottsdale Princess Partnership v. Department of Revenue, 191
Ariz. 499, 958 P.2d 15 (App. 1997). The Scottsdale Princess
Partnership sought a refund of property taxes paid under protest
for the 1993 and 1994 tax years. The Partnership argued that
Arizona’s possessory interest taxing scheme violated the
Uniformity Clause because it impermissibly created a taxing
classification based on the time period at which the property
interest was created12 instead of the “nature, use, utility, or
productivity of the taxed property.” Id. at 502, 958 P.2d at
18. After agreeing that the time-based classification violated
Arizona’s Uniformity Clause, the court, relying on McKesson
12 The taxing scheme taxed property interests differently, depending on whether the property interest was created before or after April 1, 1985. Scottsdale Princess, 191 Ariz. at 502, 958 P.2d at 18.
27 Corp. v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18
(1990), and Gosnell, concluded:
The appropriate remedy for such discrimination is a refund in the amount necessary to make [the non-favored taxpayer’s] tax burden uniform with that of the unconstitutionally favored taxpayers; that is, a refund of the difference between the amount of taxes . . . actually paid and the amount it would have paid had it qualified for the special treatment . . . .
Scottsdale Princess, 191 Ariz. at 505, 958 P.2d at 21.
¶33 We apply the approach taken in Gosnell and Scottsdale
Princess for a number of reasons. Most importantly, Arizona law
requires a taxpayer to pay any taxes due before challenging the
validity or amount of the tax. See A.R.S. § 42-11004 (1999).13
In McKesson, the United States Supreme Court, addressing the
appropriate remedy for a Florida liquor tax scheme that
unconstitutionally discriminated against interstate commerce in
13 A.R.S. § 42-11004 states:
A person on whom a tax has been imposed or levied under any law relating to taxation may not test the validity or amount of tax, either as plaintiff or defendant, if any of the taxes: 1. Levied and assessed in previous years against the person’s property have not been paid. 2. That are the subject of the action are not paid before becoming delinquent. 3. Coming due on the property during the pendency of the action are not paid before becoming delinquent.
A.R.S. § 42-11004; see also A.R.S. § 42-204.A (Supp. 1997), repealed by 1997 Ariz. Sess. Laws, Ch. 150, § 9 (repeal effective 1999).
28 violation of the Commerce Clause,14 concluded that if a state
“relegates [a taxpayer] to a postpayment refund action in which
he can challenge the tax’s legality, the Due Process Clause of
the Fourteenth Amendment obligates the State to provide
meaningful backward-looking relief to rectify any
unconstitutional deprivation.” 496 U.S. at 31 (footnote
omitted). Although McKesson involved a challenge brought under
the federal Commerce Clause, denying any refund to the Taxpayers
could raise constitutional due process issues. In addition to
raising due process concerns, denying the Taxpayers a refund
provides limited incentive for taxing authorities to adhere to
the Arizona constitutional mandate that all taxes “be uniform
upon the same class of property within the territorial limits of
the authority levying the tax.” Ariz. Const. art. IX, § 1. The
relatively minor costs associated with defending against a
taxpayer’s suit to recover illegally collected taxes provide
only limited incentive for taxing authorities to refrain from
imposing taxes questionable under the Uniformity Clause.
Finally, the County presented no proof that ordering a refund to
the Taxpayers will do great harm to the public coffers. See S.
Pac. Co., 92 Ariz. at 406, 377 P.2d at 778.
¶34 For the foregoing reasons, to place the Taxpayers’
properties on par with the favored roll-over properties, we
14 U.S. Const. art. I, § 8, cl. 3.
29 conclude that the appropriate remedy is that which the tax court
ordered: The County must refund the difference between the
amount the Taxpayers paid as property taxes in 1997 and the
amount they would have paid had they been treated in the same
manner as the roll-over properties. We remand to the tax court
to determine the appropriate refund for each property.
IV.
¶35 The court of appeals reversed the tax court’s judgment
because it concluded that the tax court failed to require
evidence of disproportionate valuation with respect to the
properties’ full cash value. Consequently, the court of appeals
did not reach a number of other issues raised on appeal,
including whether the County’s actions were intentional and
systematic, whether a new trial was necessary on the issue of
alleged new evidence, whether the tax court properly awarded
attorney fees and expert witness fees, and whether the tax court
improperly defined the appropriate class or ordered an
inappropriate remedy.
¶36 We have concluded that the tax court properly defined
the appropriate class, acted within its discretion in finding
discrimination and that the County’s actions were intentional
and systematic, and ordered a proper remedy. We can resolve the
remaining issues on the record before us. Therefore, we
consider whether the tax court abused its discretion in denying
30 the County’s motion for new trial and the parties’ arguments
regarding attorney fees and expert witness fees.
A.
¶37 The County appealed the tax court’s judgment in favor
of the Taxpayers. After identifying “new evidence,” however,
the County moved to suspend the appeal and revest jurisdiction
in the tax court to allow that court to consider a motion for
relief from judgment brought pursuant to Arizona Rule of Civil
Procedure 60(c). The court of appeals granted the motion and
revested jurisdiction in the tax court.
¶38 The County based its Rule 60(c) motion on its claim
that, after trial, it discovered that 4,002 of the roll-over
properties “were rolled over as the result of a mistake, not as
a matter of intent.” The County maintained that a mistake in
encoding these properties resulted in the tax court erroneously
finding that the “values for 4,297 properties were rolled over
because the properties had been subject to a September increase
in value.” The County claimed that its discovery of this
mistake warranted Rule 60(c) relief.
¶39 The tax court denied the County’s motion, stating
first that the County’s claimed “new evidence,” even if true,
would not have changed the court’s decision. The tax court also
concluded that the County “did not establish that with due
diligence it could not have discovered this evidence in time to
31 move for a new trial.” We review a trial court’s denial of a
motion for relief from judgment under Rule 60(c) for an abuse of
discretion. City of Phoenix v. Geyler, 144 Ariz. 323, 328, 697
P.2d 1073, 1078 (1985); De Gryse v. De Gryse, 135 Ariz. 335,
336, 661 P.2d 185, 186 (1983).
¶40 Rule 60(c) allows a court to relieve a party from a
final judgment for, among other reasons, “mistake, inadvertence,
surprise, or excusable neglect,” on the basis of “newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(d),”15
or for “any other reason justifying relief from the operation of
the judgment.” Ariz. R. Civ. P. 60(c)(1), (2), (6). “The
standard for determining whether conduct is ‘excusable’ is
whether the neglect or inadvertence is such as might be the act
of a reasonably prudent person under the same circumstances.”
Geyler, 144 Ariz. at 331, 697 P.2d at 1081.
¶41 The record in this case supports the tax court’s
ruling. The County possessed the evidence on which it relied in
its Rule 60(c) motion throughout the lengthy litigation,
although it apparently determined its purported significance
only after the court entered judgment. As a result, the tax
15 Rule 59(d) states: “A motion for new trial shall be filed not later than 15 days after entry of the judgment.” Ariz. R. Civ. P. 59(d).
32 court acted within its discretion in denying the County’s
motion.
¶42 Arizona’s statutes permit the Taxpayers, as the
prevailing parties in an action challenging the assessment or
collection of taxes, to recover reasonable attorney fees and
other expenses. A.R.S. § 12-348.B (2003). Using this statutory
authority, a court “may award fees and other expenses to any
party . . . which prevails by an adjudication on the merits in
an action brought by the party against this state or a city,
town or county challenging . . . [t]he assessment or collection
of taxes.” A.R.S. § 12-348.B.1. “Fees and other expenses”
“include the reasonable expenses of expert witnesses” along with
“reasonable and necessary attorney fees.” A.R.S. § 12-348.I.1.
¶43 Subsection E of the statute, however, provides that
such an award for fees “shall not exceed thirty thousand dollars
for fees incurred at each level of judicial appeal.” A.R.S. §
12-348.E.5. The tax court, based on its interpretation of
section 12-348, awarded the Taxpayers, as the prevailing party,
$30,000.00 as attorney fees. The Taxpayers appealed their
award, arguing that the plain language of A.R.S. § 12-348.B,
E.3, and E.5 contemplates multiple awards when there are
multiple plaintiffs and that public policy goals support its
interpretation of the statute, which would permit each of
33 multiple plaintiffs represented by the same attorney to recover
up to $30,000.00 for attorney fees. The County contends that
multiple parties represented by the same attorney can receive
only one award, capped at $30,000.00, for each level of appeal.
To hold otherwise, the County argues, would be to grant
plaintiffs a windfall. The proper interpretation of a statute
is a question of law that we review de novo. See Bilke v.
State, 206 Ariz. 462, 464 ¶ 10, 80 P.3d 269, 271 (2003).
¶44 In resolving this question, we look first to the
language of the statute, which supports the argument that each
party is entitled to an award of attorney fees, up to
$30,000.00. Id. at ¶ 11 (“The court’s chief goal in
interpreting a statute is ‘to fulfill the intent of the
legislature that wrote it.’ In determining the legislature’s
intent, we initially look to the language of the statute
itself.” (citations omitted)). Subsection B expressly refers to
an award of fees to “any party.” A.R.S. § 12-348.B. Similarly,
subsection E, in describing the limitations imposed upon
attorney fees, refers to “awards,” apparently contemplating
multiple awards. Nothing in the statute indicates that the
legislature intended the cap on fees to apply to each “action”
brought to challenge the collection of taxes, rather than to
each “party.” We think that, if the legislature had intended to
limit the statute as the County urges, it would have used
34 language making that limitation clear. Bilke, 206 Ariz. at 465
¶ 15, 80 P.3d at 272.
¶45 Interpreting section 12-348 as applying to each party
rather than to a single action also furthers another important
interest. We encourage plaintiffs to consolidate their actions,
and thereby further judicial economy, when we allow each party
to recover fees even if the same attorney represents multiple
plaintiffs. Were we to interpret the statute as the County
urges, we would encourage each of many plaintiffs to file a
separate action with separate representation. The result not
only would reduce judicial economy but also, because several
attorneys would perform duplicative work, actually could cause
additional, unnecessary expense to the County.16
¶46 Contrary to the Taxpayers’ approach, however, the
statute does not envision setting the maximum recoverable fee by
simply multiplying the number of plaintiffs represented by the
same attorney by $30,000.00. Instead, the fee recovered by each
party must reflect only the effort expended on behalf of that
party. When the same attorney represents multiple plaintiffs,
therefore, recovery is limited to the incremental increase in
fees related to the representation of each additional plaintiff,
16 We note that the statute, by capping an attorney’s billable rate at $175.00 per hour, imposes another restriction that guards against a party receiving a windfall as attorney fees. A.R.S. § 12-348.E.3.
35 because only that incremental increase in effort reflects time
spent on behalf of that party. Thus, if the reasonable attorney
fee associated with establishing the claim of the first of
multiple plaintiffs is $50,000.00, that party can recover
$30,000.00, but the additional portion of the fee does not “roll
over” to the second plaintiff represented. Rather, that party
must establish the additional reasonable attorney fee associated
with the representation of the second party. In many actions,
the incremental increase will be relatively small; in others,
such as actions in which establishing the damages of each party
requires complex calculations, the incremental increase may be
relatively large. In all instances, the prevailing party must
establish the amount of reasonable attorney fees.
¶47 The clear language of A.R.S. § 12-348 permits each
party to receive an award of attorney fees up to $30,000.00 for
each level of appeal. Therefore, the tax court erred in
construing section 12-348 as permitting only a single award
regardless of the number of individual plaintiffs involved in an
action, and we reverse the court’s judgment limiting the fees
award. Consistent with this opinion, the tax court, on remand,
must determine the appropriate amount of the attorney fee award
36 due the Taxpayers as prevailing parties under the test set out
above.17
¶48 The final issue we address involves the tax court’s
finding that $4,000.00 was “a reasonable sum for Mr. Abrams’
expert witness expenses.” See A.R.S. § 12-348.B (permitting a
prevailing party to recover the reasonable expenses of expert
witnesses). The County argues that the tax court erred in
finding that Mr. Abrams qualified as an expert and was of
assistance to the tax court.18 We find no clear error in the tax
court’s findings.
¶49 Mr. Abrams offered testimony explaining the County’s
tax roll data. The tax court found that Mr. Abrams’ testimony
“assisted the trier of fact to understand the evidence and
determine facts in issue.” Because the tax court was the trier
of fact, that court could determine better than we whether Mr.
Abrams was of assistance. Accordingly, we conclude that the tax
court did not abuse its discretion in awarding reasonable expert
witness fees.
17 The Taxpayers also request this court to award them reasonable attorney fees incurred before this court pursuant to A.R.S. § 12-348.B. We conclude that the Taxpayers, as the prevailing parties, are entitled to an award of reasonable attorney fees incurred in this proceeding. See ARCAP 21. 18 Arizona Rule of Evidence 702 allows “a witness qualified as an expert by knowledge, skill, experience, training, or education” to testify in order to “assist the trier of fact to
37 IV.
¶50 For the foregoing reasons, we vacate the court of
appeals’ memorandum decision, affirm in part and reverse in part
the judgment of the tax court, and remand to the tax court to
determine the appropriate amount of refund and attorney fees.
____________________________________ Ruth V. McGregor, Vice Chief Justice
CONCURRING:
__________________________________ Charles E. Jones, Chief Justice
__________________________________ Rebecca White Berch, Justice
__________________________________ Michael D. Ryan, Justice
__________________________________ Andrew D. Hurwitz, Justice
__________________ understand the evidence or to determine a fact in issue.” Ariz. R. Evid. 702.