State of Arizona v. John David Franklin, Sr. & John David Franklin, Jr.

• Court: Court of Appeals of Arizona
• Decided: January 13, 2011
• Docket: 2 CA-SA 2010-0068
• Status: Published

Opinion

FILED BY CLERK IN THE COURT OF APPEALS JAN 13 2011 STATE OF ARIZONA DIVISION TWO COURT OF APPEALS DIVISION TWO

THE STATE OF ARIZONA ) ) 2 CA-SA 2010-0068 Petitioner, ) DEPARTMENT A ) v. ) OPINION ) HON. KENNETH LEE, Judge of the ) Superior Court of the State of Arizona, ) in and for the County of Pima, ) ) Respondent, ) ) and ) ) JOHN DAVID FRANKLIN, SR. and ) JOHN DAVID FRANKLIN, JR., ) ) Real Parties in Interest. ) )

SPECIAL ACTION PROCEEDING

Pima County Cause No. C20090290

JURISDICTION ACCEPTED; RELIEF GRANTED

Terry Goddard, Arizona Attorney General By Mike Jette Tucson Attorneys for Petitioner

Piccarretta & Davis, P.C. By Michael L. Piccarretta and Jefferson Keenan Tucson Attorneys for Real Party in Interest John David Franklin, Sr. Law Office of Michael L. Brown By Michael L. Brown Tucson Attorney for Real Party in Interest John David Franklin, Jr.

B R A M M E R, 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 2 depositions. See Potter v. Vanderpool, ___ Ariz. ___, ¶ 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

number 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 case, 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

1 During the relevant proceedings, John David Franklin, Jr. also has been referred to as “John Jay Franklin” and “John David „Jay‟ Franklin.”

3 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

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

4 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(c)(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).

5 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

Franklins 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

3 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 of 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.

6 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

4 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)(11), 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].”

7 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. 95 ¶ 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

8 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 5 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”). 6 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.

9 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, ¶ 7, 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

case 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 victim 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

7 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.

10 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

11 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.

/s/ J. William Brammer, Jr. J. WILLIAM BRAMMER, JR., Presiding Judge

CONCURRING:

/s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge

H O W A R D, 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

12 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. Superior Court, 194 Ariz. 284, ¶ 23, 981 P.2d

584, 590 (App. 1998), quoting Herndon v. Hammons, 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 (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

13 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.

14 ¶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 interpretation of constitutional

15 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”); Fairfield 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, A.R.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.

16 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, 594

Ariz. Adv. Rep. 22, ¶ 7 (Ct. App. Nov. 4, 2010). Section 13-4402(A), A.R.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

17 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.

¶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

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

18 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.

/s/ Joseph W. Howard JOSEPH W. HOWARD, Chief Judge